The central legal point established in the judgment is the necessity of following due procedure for appointments, the authority of the Chief Executive Officer to make appointments under the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993, and the requirement of authorization by the Gram Panchayat for filing an appeal independently.

ORDER :

In this petition, under Article 226 of the Constitution of India, petitioner has assailed the legality, validity and propriety of the order dated 3-3- 2010 (Annexure P/1) passed by the Additional Commissioner, Gwalior Division, Gwalior in Case No. 256/2006-007/Appeal, whereby the order dated 4-6-2007 (Annexure P/9) appointing the petitioner on the post of Panchayat Secretary of Gram Panchayat Bastari, Janpad Panchayat Morar, District Gwalior has been quashed.

2. The brief facts leading to filing of this case are that the State Government had formulated a policy dated 12-9-1995 providing method of recruitment to the post of Panchayat Karmi. A further notification dated 27-1- 2006 was issued clarifying the policy dated 12-9-1995 wherein provision has been made in respect of exercise of powers after 30 days on failure of Gram Panchayat to make appointment after orders of Collector of the district and thereby Chief Executive Officer of the Janpad Panchayat has been empowered to make the appointment in exercise of powers under section 86(2) of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (for short “the Act”). Since Gram Panchayat Bastari did not appoint Panchayat Karmi as provided, the Collector, Gwalior directed Chief Executive Officer, Janpad Panchayat, Morar, District Gwalior to make appointment of Panchayat Karmi and to inform him accordingly. In compliance, the Chief Executive Officer issued an advertisement dated 24-4-2007. In all three applications were received in the office of Chief Executive Officer, Janpad Panchayat, Morar, District Gwalior including that of the petitioner. A merit list was prepared and petitioner was appointed as Panchayat Secretary being more meritorious. The appointment order was issued by the Chief Executive Officer appointing the petitioner as Panchayat Secretary. Being aggrieved, respondent No. 5-Sarpanch filed an appeal before Additional Commissioner, Gwalior Division under section 91 of the Act read with Rule 3 of the M.P. Panchayat (Appeal and Revision) Rules, 1995 (for short “the Rules”). It was registered as Case No. 256/2006-007/appeal. The aforesaid appeal was finally decided on 3-3-2010 by setting aside the order of appointment on the ground that no advertisement was issued for appointment of Panchayat Karmis at Gram Panchayats Tiholi, Bilheti and Bastari and only Panchanama to that effect was available on record which could not have been prepared in absence of the advertisement and that the Chief Executive Officer had undertaken the exercise of appointment of Panchayat Karmi without advertisement which itself was de hors the rules.

3. Learned counsel for the petitioner submitted that due procedure for appointment on the post of Panchayat Karmi had been followed. The Collector 2019(3) M.P.L.J.] BALBEER SINGH vs. STATE OF M. P. 85 vide letter dated 10-11-2006 (Annexure P/4) had asked the Sarpanch of the Gram Panchayat to initiate the process of appointment of Panchayat Secretaries within thirty days. Thereafter, the Collector again issued a reminder on 28-12-2006 (Annexure P/5) for filling up the posts of Panchayat Karmi, but respondent No. 5/Sarpanch failed to fill-up the posts. Ultimately, the Chief Executive Officer after approval of the Collector passed the order of appointment dated 4-6-2007 (Annexure P/9).

4. Learned counsel for the petitioner raised a preliminary objection regarding maintainability of the appeal filed by respondent No. 5-Sarpanch before the Additional Commissioner on the ground that there is no resolution about filing of appeal by Sarpanch, passed by the Gram Panchayat. Therefore, without taking authority from the Gram Panchayat and without resolution of the Gram Panchayat, respondent No. 5/Sarpanch had no power to file an appeal. Consequently, the Commissioner, who passed the impugned order also had no power to entertain the same under Rule 3 of the Rules whereby the appeal lied before the Collector against the order of Chief Executive Officer. In sup