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2008(3) JLJ 136
J.K. Maheshwari, J.
Ramniwas v. State of M.P. and others
Writ Petition (S) No.4381 of 2007, (Indore);
Decided on 25.9.2007.
Held: It is apparent that the appointment of the Secretary of Gram Panchayat may be made by the Government or by the prescribed authority i.e. Collector under sub-section (1) of section 69 of the Panchayat Act. The appointment of the Panchayat Karmi is within the connotation "other officers and servants necessary for efficient discharge of duties of the Panchayat" under section 70 sub-section (1). The Panchayat Karmi Scheme, though issued under section 70, sub-section (1) but it is only the executive instructions, gave power to the Panchayat to appoint Panchayat Karmi. Failure to discharge such function by the Gram Panchayat, the Government of M.P. or the Collector i.e. prescribed authority may discharge such liability. As discussed above, it is clear that for the purpose of section 69 prescribed authority is Collector and for section 70 Collector/Additional Collector, therefore, on failure to discharge the liability of section 86(2) the process of selection and appointment of Panchayat Karmi must be made by them or under their close surveillance and approval. In the present case selection and appointment was done since inception till completion by the Chief Executive Officer, without any approval of the prescribed authority; such action cannot be recognized, akin to the act of prescribed authority and do not have the protection under the provisions of this Act as specified under sub-section (2) of section 86 of the Panchayat Act. Moreover as per the discussion made herein above, it is apparent that Chief Executive Officer has acted with the bias of arbitrariness in the matter of preparation of selection list, therefore, also selection panel and process of selection is liable to be quashed.
In view of the foregoing discussion, this petition is allowed. The selection as made by the respondents No.2 and 3 for the post of Panchayat Karmi of Gram Panchayat Chandrapura is hereby quashed accordingly the order of appointment dated 14.6.2002 passed in favour of respondent No.4 is also quashed. [Paras 14 & 15
(2) General Clauses Act, 1957 (M.P.) -- S.2(25) -- Panchayat Karmi Scheme -- not notified in official Gazette -- has no sanction or force of law -- it may be treated as Executive Instruction. [Para 9
¼1½ iapk;r jkt ,oa xzke Lojkt vf/kfu;e] 1993 ¼e-iz-½ && /kkjk 69¼1½] 70¼1½] 70¼2½] 86¼1½ rFkk 86¼2½ && iapk;r dehZ ;kstuk && [kaM 2-4 && eq[; dk;Zikyd vf/kdkjh }kjk fofgr izkf/kdkjh ds vuqeksnu fcuk iapk;r dehZ dk p;u vkSj fu;qfDr && ,slh dk;Zokgh fofgr izkf/kdkjh ds dk;Z ds lerqY; ugha gS && dk;Zokgh LosPNkpkfjrk ls i{kikr dh Hkh && vfHk[kafMr fd, tkus ;ksX; gSA
vfHkfu/kkZfjr % ;g Li"V gS fd xzke iapk;r ds lfpo dh fu;qfDr iapk;r vf/kfu;e dh /kkjk 69 dh mi/kkjk ¼1½ ds v/khu ljdkj }kjk vFkok fofgr izkf/kdkjh vFkkZr~ dyDVj }kjk dh tk ldrh gSA iapk;r dehZ dh fu;qfDr /kkjk 70 dh mi/kkjk ¼1½ ds v/khu ^^,sls vU; vf/kdkfj;ksa rFkk lsodksa dks fu;qDr dj ldsxh ftUgsa og iapk;r ds n{k fuoZgu ds fy, vko‘;d le>s** ds lai`DrkFkZ ds varxZr gSA iapk;r dehZ ;kstuk ;|fi /kkjk 70 dh mi/kkjk ¼1½ ds v/khu tkjh dh xbZ gS] fdarq iapk;r dehZ iapk;r }kjk fu;qDr fd, tkus dh ‘kfDr dsoy dk;Zikyd vuqns‘kksa }kjk nh xbZ gSA xzke iapk;r }kjk ,sls d`R; ds fuoZgu esa foQy jgus ij e-iz- ljdkj vFkok dyDVj vFkkZr~ fofgr izkf/kdkjh ,sls nkf;Ro dk fuoZgu dj ldsaxsA Åij ;Fkk foosfpr] /kkjk 69 ds iz;kstu ds fy, fofgr izkf/kdkjh dyDVj gS rFkk /kkjk 70 ds fy, dyDVj@vij dyDVj] blfy,] /kkjk 86¼2½ ds nkf;Ro dh foQyrk ij iapk;r dehZ dk p;u vkSj fu;qfDr muds }kjk vFkok mudh xgu fuxjkuh vkSj vuqeksnu ds v/khu dh tkuk gksxhA izLrqr ekeys esa p;u vkSj fu;qfDr vkjaHk ls var rd eq[; dk;Zikyd vf/kdkjh }kjk fofgr izkf/kdkjh ds vuqeksnu ds fcuk dh xbZ] ,slh dkjZokbZ dks fofgr izkf/kdkjh ds dk;Z ds lerqY; ekU;rk ugha nh tk ldrh vkSj iapk;r vf/kfu;e dh /kkjk 86 dh mi/kkjk ¼2½ ds mica/kksa ds v/khu ;Fkk fofufnZ"V laj{k.k mls izkIr ugha gSA blds vfrfjDr] ;gk¡ Åij fd, x, foospu ds vuqlkj] ;g Li"V gS fd eq[; dk;Zikyd vf/kdkjh }kjk p;u lwph dh rS;kjh eas LosPNkpkfjrk ls i{kikriw.kZ dk;Z fd;k gS] blfy,] p;u uke&lwph vkSj p;u dh izfØ;k Hkh vfHk[kafMr fd, tkus ;ksX; gSA
iwoZxkeh foospu dh n`f"V ls] ;kfpdk eatwj dh tkrh gSA izR;FkhZ Ø-2 ,oa 3 }kjk xzke iapk;r panjiqjk ds iapk;r dehZ in ds fy, p;u ,rn~}kjk vfHk[kafMr fd;k tkrk gS vkSj rnuqlkj izR;FkhZ Ø-4 ds i{k esa fn;k x;k fu;qfDr vkns‘k fnukad 14-6-2002 Hkh vfHk[kafMr fd;k tkrk gSA ¿ iSjk 14 ,oa 15
¼2½ lk/kkj.k [kaM vf/kfu;e] 1957 ¼e-iz-½ && /kkjk 2¼25½ && iapk;r dehZ ;kstuk && jkti= esas vf/klwfpr ugha && fof/k dh eatwjh ;k cy izkIr ugha gS && ;g dk;Zikfyd vuqns‘k ekuk tk ldrk gSA ¿ iSjk 9
1. This petition has been filed under Article 226/227 of the Constitution of India challenging the order dated 14.6.2007 of appointment of respondent No.4 as Panchayat Karmi in Gram Panchayat Chandrapura, and the procedure followed in selection has also been questioned.
2. It is the precise grievance of petitioner that power to appoint the Panchayat Karmi is vested with Gram Panchayat and action taken by the respondents No.2 and 3 to appoint respondent No.4 as Panchayat Karmi is against the provisions of Panchayat Act. It is further said that procedure followed in the selection by respondent No.3, and approved by respondent No.2 is arbitrary and also against the provisions of the act, however, it is liable to be quashed.
3. Mr. Abhishek Tugnawat, Advocate has drawn my attention to the order impugned Annexure P-1 dated 14.6.2007 by which respondent No.4 was appointed as Panchayat Karmi, in the order it is mentioned that in exercise of power under section 86(2) M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter it be referred as "Panchayat Act") one Devilal s/o Hemraj Gayari (respondent No.4) is appointed as part time Panchayat Karmi on payment of honorarium. Counsel for petitioner submits that no such power is vested with the Chief Executive Officer of the Janpad Panchayat or the Collector under sub-section (1) or (2) of section 86 of Panchayat Act, therefore, the order passed by the respondents No.2 and 3 is illegal and without jurisdiction. It is further urged that respondent No.4 has been appointed by giving undue marks arbitrarily, therefore, entire process of selection is liable to be quashed.
4. While issuing show cause notice to other side on 17.8.2007, it was directed that reply be filed within 4 weeks, otherwise respondent No.3 shall personally remain present in Court along with the record of selection and appointment. Though the reply has not been filed, but respondent No.3 is present with record, however, I have proceeded to decide the case on merits.
5. Shri M.S. Dwivedi, Panel Lawyer has drawn my attention to the instructions issued on 27.1.2006 by the Principal Secretary, Rural Development Department, whereby under National Rural Employment Guarantee, Adhiniyam, 2005 a scheme known as M.P. Rural Employment Guarantee Scheme was prepared on 2.1.2006 and decided to be implemented in the State. In the said instructions, it was mentioned that in various Gram Panchayats, the post of Panchayat Karmies are vacant and the additional charge has been given to the Secretaries of nearby Gram Panchayats. However, the vacant posts of Panchayat Karmies be now filled up and the Panchayat Secretary of one Gram Panchayat shall not hold the additional charge of another Gram Panchayat. In sequence thereto, all the Gram Panchayats were directed to take step for appointment of Panchayat Karmi in their respective Panchayats within 30 days otherwise, such power may be exercised by the prescribed authority i.e. Collector as per section 86(1) and (2) of the Panchayat Act. In the said instructions requisite qualification and the procedure required to be followed was also specified. Pursuance to the Government instructions the Collector, Neemuch has issued a letter dated 12.6.2006 to the Chief Executive Officer, Janpad Panchayat, Manasa to take step for selection and appointment of Panchayat Karmi in Gram Panchayat, Chandrapura. In furtherance thereto he has issued an advertisement for appointment of Panchayat Karmi of Gram Panchayat Chandrapura. On receiving applications a merit panel was prepared, wherein respondent No.4 has secured 55.87% marks, however an order to appoint him as Panchayat Karmi as per Annexure P-1 has been issued.
6. During hearing I have gone through the provisions of Panchayat Act; section 69(1) deals with the appointment of Secretary in the Gram Panchayat, sub-section 2 deals appointment of Chief Executive Officer in Janpad Panchayat, and sub-section (3) deals the appointment of Chief Executive Officer of
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