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(HIGH COURT)
G. S. Ahluwalia, J.
Keshav Singh v. State of M.P. and others
Writ Petition No. 6177 of 2009 (Gwalior); against the order dated 29.10.2009 passed by the Additional Commissioner, Gwalior Division, Gwalior in Appeal No. 509/2008-09,
Decided on 25.4.2019.
¼1½ iapk;r jkt ,oa xzke Lojkt vf/kfu;e] 1993 ¼e-ç-½ & /kkjk 69¼1½] f}rh; ijarqd & lfpo dk in & xzke iapk;r ds inkf/kdkjh ds ukrsnkj dh fu;qfDr dk otZu & mís'; & ;g lqfuf'pr djuk gS fd lfpo ls fudV ukrsnkjh gksus ds dkj.k fufèk dk nqfoZfu;ksx ugha gks & nwljk mís'; HkrhZ izfØ;k esa Hkkx ysus dk eqDr vkSj mfpr volj iznku djuk gS & vU;Fkk inkf/kdkjh vius ukrsnkj dks Qk;nk nsus dk iz;kl djsaxsA¼iSjk 9
¼2½ Hkkjr dk lafo/kku & vuq-14 rFkk 16 & e-iz- iapk;r jkt ,oa xzke Lojkt vf/kfu;e] 1993 & /kkjk 69¼1½] f}rh; ijarqd & inkf/kdkjh ds fudV ukrsnkj dh lfpo ds :i esa fu;qfDr dk otZu & yksd HkrhZ ds leLr Hkkjrh; ukxfjdksa dks leku volj iznku djus ds fy, lafo/kku ds vuqPNsn 16 rFkk 14 ds vuqdwy gSA ¼iSjk 9
¼3½ iapk;r jkt ,oa xzke Lojkt vf/kfu;e] 1993 ¼e-ç-½ & /kkjk 91] 69¼1½] f}rh; ijarqd rFkk 86¼2½ & e-iz- iapk;r ¼vihy rFkk iqujh{k.k½ fu;e] 1995 & fu-3 & vihy dk vf/kdkj & ljiap dk HkkbZ & tuin iapk;r ds eq[; dk;Zikyu vf/kdkjh }kjk /kkjk 86¼2½ ds v/khu lfpo fu;qDr & ,slh fu;qfDr xzke iapk;r }kjk ugha & mi&ljiap dks vihy dk vf/kdkj gS & ,slh fu;qfDr ds fo#) mlds }kjk izLrqr dh xbZ vihy pykus ;ksX; gSA ¼2012½4 ,l lh lh 407] ¼2013½4 ,l lh lh 465] ¼1993½4 ,l lh lh 119] ¼2010½15 ,l lh lh 795 rFkk , vkb vkj 2014 ,l lh 3434 fufnZ"VA ¼iSjk 9
¼4½ iapk;r jkt ,oa xzke Lojkt vf/kfu;e] 1993 ¼e-ç-½ & /kkjk 91 & e-iz- iapk;r ¼vihy rFkk iqujh{k.k½ fu;e] 1995 & fu-3 & lfpo dh fu;qfDr ds vkns'k ds fo#) vihy & izkf/kÑr fd, tkus dh vko';drk & mi&ljiap }kjk O;fDrxr gSfl;r esa vihy dh xbZ] xzke iapk;r dh vksj ls ugha & lacafèkr xzke iapk;r }kjk izkf/kÑr fd;k tkuk visf{kr ugha FkkA ¼iSjk 10
¼5½ iapk;r jkt ,oa xzke Lojkt vf/kfu;e] 1993 ¼e-ç-½ & /kkjk 69¼1½] f}rh; iajrqd & iapk;rdehZ@lfpo dk in & gdnkjh & ljiap dk HkkbZ gdnkj ugha & mldh fu;qfDr /kkjk 69¼1½ ds f}rh; ijarqd ds vkKkid micaèkksa ds izfrdwy gS] & vij vk;qDr us ,slk vkns'k vikLr djus esa dksbZ Hkwy ugha dh & vk;qDr dk vkns'k vfHkiq"V & ;kfpdk [kkfjtA ¼iSjk 13 ls 14
¼6½ fof/k dk fuoZpu & fl)kar & iapk;rdehZ ;kstuk & izHkko & vfèkfu;e ds dkuwuh mica/kksa ij v/;kjksgh ugha gks ldrhA ¼iSjk 13
(1) Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993(M.P.) -- S.69(1) II Proviso -- post of secretary -- for on appointment of relative of officer-bearer of Gram Panchayat -- object -- is to ensure that funds are not misappropriated because of close relation of secretary -- another is to give free and fair opportunity to participate in recruitment process -- otherwise office bearer would try to give advantage to his relative. [Para 9
(2) Constitution of India -- Arts. 14 and 16 -- M.P. Panchayat Raj Evam Gram Swarja Adhiniyam, 1993 -- S.69(1) II Proviso -- bar on appointment of near relative office bearer as Secretary -- is in consonance with Articles 16 and 14 of constitution for giving equal opportunity to all citizens of India in public recruitment. [Para 9
(3) Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993(M.P.) -- Ss.91, 69(1) II Proviso and 86(2) -- M.P. Panchayat (Appeal and Revision) Rules, 1995 -- R. 3 -- right to appeal -- brother of Sarpanch -- appointed as Secretary under section 86(2) by Chief Executive Officer, Janpad Panchayat -- such appointment is not by Gram Panchayat -- Up-Sarpanch has right to appeal -- appeal filed by him against such appointment is maintainable. (2012)4 SCC 407, (2013)4 SCC 465, (1993)4 SCC 119. (2010)15 SCC 795 and AIR 2014 SC 3434 referred to. [Para 9
(4) Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993(M.P.) -- S.91 -- M.P. Panchayat (Appeal and Revision) Rules, 1995 -- R.3 -- appeal against order of appointment of Secretary -- requirement of authorization -- appeal filed by Up-Sarpanch in individual capacity and not on behalf of Gram Panchayat -- no authorization by concerning Gram Panchayat was required. [Para 10
(5) Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993(M.P.) -- S. 69(1) II Proviso -- post of Panchayat Karmi/Secretary -- entitlement -- brother of Sarpanch is not entitled -- his appointment is contrary to mandatory provisions of second proviso to section 69(1) -- Additional Commissioner did not commit any mistake in setting aside such order -- order of additional Commissioner affirmed -- petition dismissed. [Paras 13 &14
(6) Interpretation of Statute -- Principle -- Panchayat Karmi Yojana -- effect -- cannot override statutory provisions of Act. [Para 13
ORDER
1. This petition under Article 226 of the Constitution of India has been filed against the order dated 28.10.2009 passed by the Additional Commissioner, Gwalior Division, Gwalior in Appeal No. 509/2008-09, by which the appointment of the petitioner on the post of Panchayat Karmi has been set aside in the appeal filed by Up-Sarpanch.
2. The necessary facts for disposal of this petition in short are that on 27.1.2006 the Department of Panchayat & Rural Development, State of M.P., issued a direction to all the Collectors to the effect that the Gram Panchayat must fulfill the vacant posts of Panchayat Karmi by 2.2.2006 and if the Gram Panchayat fails to fulfill the vacancy by 2.2.2006, then the Collector must take action under section 86 of the M.P. Panchayat Raj Adhiniyam, 1993 (in short “Adhiniyam, 1993”) and must issue a letter to the Sarpanch of the said Panchayat under section 86 (1) of the Panchayat Raj Avam Gram Swaraj Adhiniyam making him to compulsorily fill up the vacant posts of Panchayat Karmi/Secretary. If any Gram Panchayat fails to comply the order issued under section 86 (1) of the Adhiniyam, 1993, then the Chief Executive Officer of the concerning Janpad Panchayat shall be directed under section 86 (2) of the Adhiniyam, 1993 to make appointment on the post of Panchayat Karmi after seeking approval from the Collector by exercising powers of the Sarpanch.
3. It is submitted that accordingly, a letter dated 29.3.2007 was issued by the Collector to the Chief Executive Officer, Janpad Panchayat Morar, District Gwalior to the effect that the Collector by order dated 1.8.2006 had issued a letter under section 86 (1) of the Adhiniyam, 1993 for filling up the vacancy of Panchayat Karmi within a period of 30 days, however, the Gram Panchayat Bilheti, District Gwalior and Gram Panchayat Bastari have not complied with the order, therefore, the Chief Executive Officer was directed to make the appointment in exercise of power under section 86 (2) of the Adhiniyam, 1993 after seeking approval from the Collector. It was also directed that the application should be invited by affixing the notice on the public place and even a copy should be affixed on the Notice Board of the Janpad Panchayat and public announcements should be made and three days' time should be granted for making the application. After considering the application, the merit list should be prepared which should be displayed on the Notice Board of the Gram Panchayat/Janpad Panchayat and the meritorious candidate should be appointed after seeking approval from the Collector. One name should be kept in the waiting list and successful candidate should be given three days' time to submit his joining and in case if he fails to do so, then the candidate kept in the waiting list should be appointed. Accordingly, the Chief Executive Officer, Janpad Panchayat, Morar, District Gwalior issued a public notice dated 24.4.2007 inviting applications for appointment on the post of Panchayat Karmi, Gram Panchayat Bilheti and Bastari. The petitioner and three more persons applied for appointment on the post of Panchayat Karmi, Gram Panchayat Bilheti and merit list was prepared and the petitioner was placed at serial No. 1, as he had received 209 marks out of 500 in High School Examination, whereas one Ajay Singh was placed at serial no.2, who had secured 203 marks out of 500 and remaining two candidates, namely, Kamlesh and Satya Narayan had secured 194/500 and 192/500 in the High School. Accordingly, after seeking approval from the Collector, the petitioner was given appointment by order dated 4.6.2007. The Collector by order dated 31.7.2007 passed an order under section 69 (1) of the Adhiniyam, 1993 and the petitioner was notified as Panchayat Secretary.
4. Being aggrieved by the order of appointment of the petitioner, one Keshari Singh, who was holding the post of Up-Sarpanch, Gram Panchayat Bilheti filed an application under section 91 of the Adhiniyam, 1993 before the Addit
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