No confidence motion applies to a nominated officiating Sarpanch under the Panchayati Raj Act, ensuring accountability in governance.

Judgment/Order

Reserved on 29.04.2019

Pronounced on 30.05.2019

The petitioner by this writ petition has challenged the order dated 18.10.2019 whereby the respondents State Government has directed to give charge of Sarpanch as officiating Sarpanch to the respondent No.5 of Gram Panchayat Khedli.

Brief facts which need to be noted are that the petitioners are elected Ward Panch of Gram Panchayat, Khedli. One Smt Seema who was from SC Women category was elected as Sarpanch. The State Government vide order dated 5.7.2017 suspended Smt. Seema and during her suspension respondent No.5 Brij Mohan Koli, who is from SC category and was a Member Panch of the Gram Panchayat, was given officiating charge of Sarpanch vide order dated 18.7.2017.

Petitioners thereafter moved no confidence motion against the officiating Sarpanch which was signed by 7 Panch, out of 9 Panch of the Gram Panchayat and they moved a notice of no confidence motion. The said notice was forwarded by BDO Panchayat Bamanwas to the CEO, Zila Parisad, who removed respondent No.5 from the officiating charge of the Sarpanch and sought guidance from the State Government vide his order dated 5.9.2018. The State Government vide order dated 9.10.2018 held that no confidence motion cannot be initiated against an officiating Sarpanch and, therefore, directed to handover the charge of Sarpanch to Brij Mohan Koli Ward Panch and accordingly order was passed by respondent No.4 18.10.2018 reinstating respondent No.5 to take officiating charge of Sarpanch of Gram Panchayat Khedli.

Learned counsel for the petitioners submit that the petitioners are elected Panch and have not reposed their faith in respondent No.5. As the Sarpanch has been suspended on account of criminal case, the person nominated by the State Government as a Sarpanch would continue to work for the entire tenure inspite of the fact that the other Ward Panch have no faith in him and the very basis of Democratic set up and Panchayat would be frustrated. Learned counsel submits that in terms of provision of the Panchayati Raj Act if the Government finds that the office of the Sarpanch cannot be filled then the elected Up- Sarpanch ought to have been handed over the charge and a person nominated cannot be allowed to continue for the entire tenure as his actions would not be answerable to the other elected members if the contention of the respondent is accepted that no confidence motion cannot be initiated against him. It is submitted that provisions of Section 38 would also therefore not apply logically to such a person who has been nominated to officiate as a Sarpanch and he cannot be suspended also.

Per contra, learned counsel for the respondents submits that the procedure of no confidence motion cannot be adopted against a nominated officiating Sarpanch and can only be against an elected Chairperson or Deputy Chairperson. The appointment of a officiating Sarpanch is in terms of Section 25 of the Act of 1994 as it provides for nominating of a officiating Sarpanch where the Sarpanch is suspended under Section 38 of the Act 1994. Learned counsel submits that there was no women member of Schedule Caste available other than Sarpanch, who was suspended therefore as per proviso. The charge was handed over to a Ward Member, who is from the Schedule Caste category and as the provisions of Section 37 relating to no confidence motion would not apply, the Government has rightly directed the respondent No.5 to continue to hold a charge of Sarpanch.

Having noted the submission, it would be appropriate to look through the provisions of the Act of 1994 of Section 25 ,26, 27, 30, 32, 37, 38 and