Rahul Singh vs The State Of Madhya Pradesh

S.C. Sharma, J.—The petitioner before this Court has filed this present petition being aggrieved by an order dated 23/08/2010, passed by the respondent no. 3, Collector Sidhi, by which he has set-aside the appointment of the petitioner on the post of Panchayat Secretary.

The facts of the case reveal that in the year 2006, the Collector, Sidhi has directed the Gram Panchayat in exercise of powers conferred under Section 86(1) of the Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 to fill up the post of Panchayat Karmi (Sachiv). The Gram Panchayat has issued an advertisement inviting applications for the post of Panchayat Karmi on 13/03/2006 and a resolution was passed on 28/03/2006 by majority of votes to appoint the petitioner as Panchayat Karmi. By an order dated 04/01/2006 in exercise of powers conferred under Section 69(1) of the Act 1993, the petitioner was also notified as Secretary. The appointment of the petitioner was challenged by one Kemalbhan Prajapati before the SDO and the appeal of Kemalbhan was dismissed on 10/04/2007, against which a revision was preferred before the Commissioner, the same was also dismissed on 06/06/2007. A writ petition was also preferred in the matter i.e. W.P. No. 15037/2007 and this court has disposed of the same with a liberty to the petitioner therein to approach the State Government. The petitioner has finally approach State Government and the respondent no. 2 Minister has directed the Collector to re-open the matter and to pass an appropriate order in accordance with law. The respondent Collector after hearing parties at length has passed an order and has also directed the Gram Panchayat to issue appointment order in favour of the respondent no. 9 Smt. Sunita Shukla. The reasons assigned by the Collector is that the respondent no. 9 was a most meritorious candidate and in the light of the circular issued by the State Government dated 27/01/2006 selection could not have been done on the basis of majority of votes.

Learned counsel appearing for the petitioner has straightway drawn the attention of this Court towards a judgment delivered by this Court in the case of Kalpnath Mishra Vs. State of M.P. and Others, . This court in the aforesaid case in paragraph nos. 7 to 11 has held as under:-

�7. The State Legislature while enacting Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993(hereinafter referred to as the ''Act'' for short), has categorically provided constitution of a Gram Panchayat. For effective working of a Gram Panchayat, the provisions are made under section 70 of the Act, where it is provided that appointment of employees for the purposes of discharging the functions of the Gram Panchayat will be made in the manner prescribed. Section 69(1) of the Act specifically deals with the notification of a Secretary of the Gram Panchayat. The State Government in exercise of powers to prescribe procedure for making appointment of the employees for the Gram Panchayat, has made a scheme known as Panchayat Karmi Yojna (hereinafter referred to as the Scheme for short) and circulated the same vide memo dated 12/09/1995. The scheme as has been made by the State Government contemplates that a Panchayat Karmi will be appointed by a Gram Panchayat only for the purposes of his notification as a Secretary of the Gram Panchayat. The eligibility conditions have been mentioned in the said scheme. The Scheme further contemplates procedure to be followed for making appointment of Panchayat Karmis. It is categorically provided that a Panchayat Karmi will be appointed on selection by the Gram Panchayat. However, the original Scheme nowhere prescribes that the selection of a candidate for appointment as Panchayat Karmi is to be based on merit (emphasis supplied ). It is seen from the scheme that such appointments are according to the choice of the Gram panchayat because a Secretary of the Gram Panchayat is required to be a person of the confidence of the Gram Panchayat. The State Government has also made the Rules in the year 1999, prescribing the statutory duties which a Secretary of the Gram Panchayat is required to discharge. Therefore, it was not originally provided in the scheme that a Secretary should be appointed only on the basis of merit which was to be assessed on the basis of marks obtained in the qualifying examination. The educational qualification prescribed for appointment as Panchayat Karmi is 10+2 minimum. Therefore, it cannot be said that right from the inception of the Scheme, the Panchayat Karmis were to be selected and appointed only on the basis of merit which was to be calculated on the basis of marks obtained in the qualifying examination.

The State Government has issued instructions from time to time with respect to the appointment of Panchayat Karmis, their conditions of service and their removal from the post. However, in none of the said circulars the State Government has contemplated that the appointment of a Panchayat Karmi should be based on merits. For the first time, when it was seen by the State that in many places appointment of Panchayat Karmis were not made and the Schemes of the State Government were not being implemented because of want of a Panchayat Secretary, a circular was issued on 27/01/2006. A perusal of this circular will make it clear that it has two parts. The first part deals with the instructions which were required to be issued under Section 86(1) of the Act to all such Gram Panchayats where the Panchayat Karmis were not appointed. The said part specifically laid down that the Collector of the district concerned was required to issue the direction to the Sarpanch of the concerning Gram Panchayat where the vacancy of the Panchayat Karmi was there to make appointment of a Panchayat Karmi within within a period of thirty days. The second part of the circular was relating to the provisions contained in section 86(2) of the Act. It was directed under the clause that where even after giving direction under section 86(1) of the Act, if, the direction is not complied with within the time stipulated, then, in the condition, the Chief Executive Officer of the concerning Janpad Panchayat was required to make the appointment of a Panchayat Karmi. For the said purpose, the qualification of such Panchayat Karmi were specifically mentioned. The procedure which was required to be followed, was also prescribed and in this part of circular it was said that the selection of a Panchayat karmi was to be made only on the basis of marks obtained in the qualifying examination. Thus, for the first time, this circular dated 27/01/2006 was issued prescribing a procedure of merit selection of a Panchayat Karmi on the basis of marks obtained in the qualifying examination. In this circular, it was further very specifically said that in case of future vacancies if any of the Gram Panchayat on the post of Panchayat Karmi, the said procedure will be followed.

The plain and simple reading of this circular makes it clear that the instructions as contained with respect to merit selection were restricted only when the procedure was to be adopted exercising the power in sub-section (2) of section 86 of the Act. For the purpose of interpreting the said circular in appropriate manner, it will be proper to reproduce the provisions of section 86 as under:-

�86. Power of State Government to issue order directing Panchayat for execution of works in certain cases:-(1) The State Government or the prescribed authority may, by an order in writing direct any Panchayat to perform any duty imposed upon it, by or under this Act, or by or under any other law for the time being in force or any work as is not being performed or executed, as the case may be, by it any the performance or execution thereof by such Panchayat is, in the opinion of the State Government or prescribed authority, necessary in public interest.]

(2) The Panchayat shall be bound to comply with direction issued under Sub Section (1) and if it fails to do so [the State Government or the prescribed authority shall have all necessary powers to get the directions complied with at the expense, if any, of the Panchayat] and in exercising such powers, it shall be entitled to the same protection and the same extent under this Act as the Panchayat or its officers or servants whose powers are exercised.�

Thus, from the reading of the aforesaid section, it is clear that the section itself has two parts. First part is specifically for the compliance of direction by the Panchayats and the second part is where even after giving a direction, the Panchayats failed to discharge their duties and comply with the direction. Then in that case, the competent authority is required to discharge the function for which direction is issued to the Gram Panchayat as if the said authority is exercising the power of the Panchayats. Meaning thereby, if the Panchayat complied with the directions, there is no application of sub-section (2) of section 86 of the Act. There is no requirement of exercising that power in such circumstances. This being so, the circular dated 27/01/2006 is to be read as a whole whether such a prescription of merit selection made applicable for selection which are to be made in exercise of power under sub- section (2) of section 86 of the Act, is applicable for the selection which are to be made by the Gram Panchayat under the directions issued in accordance to the provisions of section 86(1) of the Act.

The intention of the Legislature is clear from the reading of the section itself. Had it been so that the Legislature was of the intention to direct doing of certain work of the Gram Panchayat straightway by the concerning authorities of the State Department, it would not have provided sub-section (1) of Section 86 of the At. This itself is enough to indicate that the intention of the Legislature was to command the Panchayats concerned to perform certain duties under the Act for which directions are required to be issued by the competent authority of the State Department. On failure of discharge of such duties or functions by the Panchayats even after issuance o the directions under sub-section (1) of Section 86 of the Act, then only the said functions are required to be performed by the State Authorities under Sub-section (2) of section 86 of the Act exercising the power of the Panchayat. This makes it clear that if Panchayats are required to do the work, they will do it in accordance to the original instructions issued and therefore, by virtue of circular dated 27/01/2006, only this much was directed that in case of failure on the part of the Gram Panchayat, if the appointment of Panchayat Karmi is not made, within the time stipulated, a Panchayat Karmi will be appointed by a concerning departmental authorities in exercise of powers conferred under sub-section (2) of Section 86 of the Act, exercising the said powers and duties of the Panchayat concerned, only on the basis of merits of the candidate obtaining on the basis of marks secured in the qualifying examination.�

Learned Single Judge in the aforesaid case has taken into account the circular dated 27/01/2006 and 13/08/2007. In the present case the appointment of the petitioner was done by the Gram Panchayat on the basis of direction issue by the Collector under Section 86(1) of the Act, 1993 and the appointment was certainly not done as per the provisions contained under Section 86(2). The circular dated 27/01/2006 under the second part deals with appointment done in consonance with Section 86(2) of the Act, 1993 and therefore, in the light of the judgment delivered by this Court wherein in similar circumstances the appointment of the petitioner on the basis of majority of votes has been upheld, this court does not find any reason to interfere with the appointment of the petitioner and therefore, the order passed by the Collector in the light of the judgment delivered in the case of Kalpnath Mishra (supra) deserves to be set-aside.

In the present case the petitioner was appointed on the basis of majority of votes even though he was less meritorious, however, his appointment was on the directions issued under Section 86(1) of the Act of 1993 and therefore the same could not have been interfered with by the Collector. It is needless to mention that the State Government has clarify the entire situation relating to appointment of Panchayat Karmi vide circular dated 13/08/2007 and now the appointments on the post of Panchayat Karmi are being held exclusively on the basis of merits by virtue of circular dated 13/08/2007 and as the appointment of the petitioner was done on 28/03/2006 and secretarial powers were conferred on 01/04/2006, the impugned order deserves to be set-aside and is accordingly, set-aside.

The petitioner who is working as Panchayat Karmi(Sachiv) since 2006 shall be entitled to continue to work as Panchayat Karmi(Sachiv) with all consequential benefits.

Petition stands allowed and disposed of.