The main legal point established in the judgment is the limitation on the power of executive instructions to supplant statutory rules.

JUDGMENT :

M.M. Das, J. - Heard learned Counsel for the Petitioners and Mr. B. Dash, learned Counsel for the State.

2. The Petitioners in these writ Petitioners underwent the process of selection to be appointed as Secretaries of the Grama Panchayats as provided under Rules 212 and 213 of the Orissa Grama Panchayat Rules, 1968 (hereafter referred to as 'the Rules'). After such process of selection, they were selected to be appointed as Secretaries and proposals for appointment of the Petitioners were sent from the respective Grama Panchayats to the District Panchayat Officers as per Rule 213(c) and 213(d) of the Rules The District Panchayat Officer, in view of the letter dated 1.10.2000 under Annexure-4 to W.P. (C) No. 6579 of 2003, which imposed a restriction on appointment of Secretaries of Grama Panchayats, issued by the Government in its Panchayati Raj Department to all the Collectors, sought for a clarification from the Government under Annexure-3 to the said writ petition, being W.P.(C) No. 6579 of 2003. Since nothing was done thereafter, due to the inaction on the part of the State, the Petitioners in all the aforesaid three writ petitions have approached this Court for appropriate relief.

3. Counter affidavits have been filed on behalf of the opp. parties 2 and 3 in W.P. (C) Nos. 7036 and 7037 of 2003, inter alia, stating that the Government in its P.R. Department letter dated 4.6.2003 has clarified that where the recruitment has been completed in all respect but no actual appointment has been made in the post of Secretary of Grama panchayat for want of approval, the recruitment in all such cases be declared as withdrawn and no approval for appointment be given in such cases The copy of the letter dated 4.6.2003 has been annexed to the counter affidavit as Annexure-B/2 in W.P. (C) Nos. 7036 and 7037 of 2003. The said letter refers to a Government Order, being G.O. No. 5140/GP dated 24.3.2001. A copy of the said G.O. has been annexed to the affidavit filed on behalf of the Petitioner in W.P. (C) No. 6579 of 2003, today in Court, as Annexure-5. From the said G.O., it appears that the Government while considering the amendment to the relevant provisions of the Orissa Grama Panchayat Rules, 1968 with regard to appointment of Secretaries, directed that pending such proposed amendment, the method mentioned in the said letter is to be followed with regard to recruitment of Secretaries.

4. Mr. K.P. Mishra, learned Counsel for the Petitioners urges that the Grama Panchayat Rules, 1968 having been framed under the Orissa Grama Panchayat Act are statutory rules. Orders or notifications or executive instructions issued by the Government by way of an administrative action, contrary to such rules, cannot restrict the operation of the statutory rules and, therefore, issuance of the ban order on appointment of Secretaries of Grama Panchayats in accordance with the statutory rules under Annexure-4 to W.P. (C) No. 6579 of 2003, which, in effect, ceases the operation of the statutory rules, cannot be sustained. He further contends that the cause for issuance of ban order, as is clear from the facts of the case, is that the proposal for amendment of the relevant rules was under consideration of the Government and anticipating an amendment to the statutory rules. Accordingly to Mr. Mishra, no executive instruction can be issued stalling the operation of the statutory rules which is in force. As a matter of fact, he submits that even though the ban order was passed in the year 2002, till now, no amendment of the Rules have been made with regard to appointment of Secretary, though the Act has been amended prescribing deputation of VAWs and VLWs as Executive Officers of Grama Panchayats. The statute still provides for appointment of Secretary to Grama Panchayat and Rules 212 and 213 of the Rules are still in operation. In support of his contention, he relies upon the decision in the case of State of Maharashtra v. Jagannath Achyut Karandikar AIR