Amarpal vs State of Uttarakhand & Others

Sudhanshu Dhulia, J. (Oral)

Petitioner before this Court is a member of Gram Sabha Barwala, Tehsil Bajpur, District Udham Singh Nagar. He has challenged the election of the

private respondent no. 4 as the Gram Pradhan of Gram Sabha Barwala. The challenge of the petitioner rests on his contention that the seat of Gram

Pradhan, Barwala was reserved for the members of Scheduled Castes community, whereas the private respondent no. 4 Smt. Santosh does not

belong to the Scheduled Castes community and, in fact she belongs to the Other Backward Castes (OBC) community. In this connection, an enquiry

was conducted by the Scrutiny Committee which came to the conclusion that the private respondent no. 4 does not belong to Scheduled Castes

community and cancelled the caste certificate issued to the private respondent no. 4. Pursuant to this, the District Magistrate passed an order on

12.8.2016 and thereby removed the private respondent no. 4 from the post of Gram Pradhan.

The aforementioned orders of the Scrutiny Committee dated 9.6.2016 and the order of the District Magistrate dated 12.8.2016 were challenged by

the private respondent no. 4 before this Court by filing the Writ Petition (M/S) No. 3374/2016. Meanwhile, Secretary, Panchayati Raj, Government of

Uttarakhand vide her order dated 11.7.2017 (Annexure No. 11 to the writ petition) cancelled the aforesaid order of the District Magistrate, pursuant to

which the private respondent no. 4 moved an application for withdrawal of her writ petition (WPMS 3374/2016) whereupon the said writ petition was

dismissed as withdrawn on 13.7.2017.

Petitioner has challenged the order dated 11.7.2017 passed by the Secretary, Panchayati Raj, Government of Uttarakhand and other two

consequential orders.

Removal of a Gram Pradhan is provided under Section 138 of the Uttarakhand Panchayati Raj Act, 2016 which reads as under:

“138. Separation from their posts to the officers of the three tiers panchayat-

(1) The State Government may remove a member of the Panchayats on any of the following grounds-

(a) that he has acted as a member of the Gram Panchayat, Kshettra Panchayat and Zila Panchayat or member of any committee by voting or taking

part in the discussion of any matter in which he has directly or indirectly, a personal interest or in which he is professionally interested on behalf of a

client, principal or other person;

(b) that he has become physically or mentally incapacitated for performing his duties as such member, Pradhan, Up Pradhan, Pramukh, Up pramukh,

Chairman, Up Chairman;

(c) that he has been guilty, whether in his present or an earlier term of office, of misconduct in the discharge of his duty as such member, Pradhan, Up

Pradhan, Pramukh, Up pramukh, Chairman, Vice chairman or has contravened any of the provisions of this Act or caused loss or damage to the fund

or property of the State Government or Panchayats and such misconduct, contraventions or causing of loss or damage renders due to conduct of work

as unauthorized in place by women representative, her husband or family members or relatives, such women shall be ineligible as member, Pradhan,

Up Pradhan, Pramukh, Up pramukh, Chairman, Vice chairman in such case they may be suspended up to the departmental final enquiry and their

work and duties may be hand over to a committee of three elected members of the concerning Panchayat. In addition to the disciplinary action also

may be taken against the departmental employees/officer, if found guilty in the enquiry.

(2) Notwithstanding anything in any other enactment, where a member specified in any member, Pradhan, Up Pradhan, Pramukh, Up Pramukh,

Chairman and Vice chairman in clause (c) of sub-section (1) of section 29 is removed from membership under this section he shall with effect from

the date of publication of notification of removal under section (c), cease to hold the office of respectively member, Pradhan, Up Pradhan, Pramukh,

Up Pramukh, Chairman and Vice chairman and a vacancy shall be deemed to have been created in that office.

(3) A person who has been removed from membership of the Panchayat under clause (a) or clause (c) of sub-section (1) shall be disqualified for

being chosen a member of the Panchayat and being elected a member, Pradhan, Up Pradhan, Pramukh, Up Pramukh, Chairman, Up chairman of a

Panchayats for a period of five years from the date of his removal:

Provided that the State Government may, at any time by order, remove the disqualification.

(4) Suspension- (a) If after the preliminary enquiry, the Pradhan, Up Pradhan, Up Pradhan, Pramukh, Up pramukh, Chairman, Vice chairman found

guilty in prima facie then till the final enquiry, the State Government may be suspended to him.

(b) If it is proved that the meeting of Gram Sabha/Gram Panchayat is convened in the house of Pradhan/Up Pradhan then after enquiry against the

concerning person, the State Government may be suspended to him;

Provided that shall not pass any order adversely affecting a person by the State Government/designated authority unless such person has been given

an opportunity of making his representation.â€​

Although in the aforesaid provision, there is no specific provision that a Gram Pradhan whose caste certificate has been cancelled can be removed,

however, sub-section (4) of Section 138 of the Uttarakhand Panchayati Raj Act, 2016 read with its proviso whereby an elected “Gram Pradhanâ€

cannot be suspended/removed unless such a person has been given an opportunity of making his/her representation.

In view of the above, this writ petition is allowed. Impugned orders dated 11.7.2017, 20.7.2017 and 21.7.2017 are hereby set aside. However, since

there is charge of misconduct against the private respondent no. 4 in the discharge of her duty as Pradhan and since it is also proved that the

respondent no. 4 does not belong to Scheduled Castes community and yet she procured false Scheduled Caste Certificate, therefore, the State

Government would always be at liberty to take appropriate action against the respondent no. 4 under Section 138 (1) (c) of the Uttarakhand

Panchayati Raj Act, 2016.