Vidhya Rawat vs State Of Madhya Pradesh & Ors

Present petition under Article 226/227 of the Constitution seeks quashment of final order dated 11/6/19 passed by Secretary Panchayat and Rural

Development in exercise of revisional power quashing the order dated 1/5/18 of Commissioner Revenue Division Chambal and order of CEO Zila

Panchayat Morena dated 31/7/17 by which Smt. Lajja Bai/respondent No.7 herein was removed from the office of Sarpanch, Gram Panchayat

Kaimarakalan, Janpad Panchayat Sabalgarh District Morena u/S. 40 of Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993

(“1993 Adhiniyam†for brevity) meaning thereby that by impugned order, the respondent No.7 was reinstated as Sarpanch of Gram Panchayat

Kaimarakalan Janpad Panchayat Sabalgarh.

The grievance of petitioner is that she is occupying the casual vacancy in the office of Sarpanch, Gram Panchayat Kaimarakalan, Janpad Panchayat

Sabalgarh by virtue of Section 38 of 1993 Adhiniyam owing to removal of respondent No.7 u/S. 40 of 1993 Adhiniyam and thus cannot be dethroned

by passing of impugned order Annexure P/1 without being afforded reasonable opportunity of being heard and despite the respondent No. 2 having no

jurisdiction to exercise revisional powers pursuant to which impugned order Annexure P/1 was passed.

The sole question which begs for an answer before this court is as to whether petitioner having been elected under the provision of Section 38 of 1993

Adhiniyam to fill up casual vacancy, has any locus to challenge the reinstatement of regularly elected Sarpanch on setting aside of the order of

removal or not ?

This court to avoid prolixity relies upon the order passed by this court in a case attended with similar circumstances where it was categorically held

that such an incumbent of a casual vacancy u/S. 38 of Adhiniyam 1993 has to give way as soon as the order of removal of regularly elected Sarpanch

is set-aside, relevant extract of order dated 11/4/19 passed in W.P. No. 7660/18 is reproduced below:-

Whatever rights are available to petitioner in her capacity as casual vacancy occupant are derived from Sec.38 of the 1993 Adhiniyam. For ready

reference and convenience, Sec.38 of the 1993 Adhiniyam is reproduced below:

“38. Filling up of vacancies.- [(1) (a) In the event of death, resignation, no confidence motion, or removal of an office-bearer of a Panchayat or on

his becoming a member of State Legislative Assembly or a member of either House of Parliament before the expiry of his term, a casual vacancy

shall be deemed to have occurred in his office and such vacancy shall be filled as soon as may be by election in accordance with the provisions of the

Act and the rules made thereunder;

[(b) in the event of occurrence of a casual vacancy in the office of the Sarpanch of a Gram Panchayat, the Secretary of the Gram Panchayat, as the

case may be, shall cause to be called a special meeting of the Panchayat immediately, but not later than fifteen days from the date of receipt of

information from the prescribed authority regarding the vacancy and the members shall elect from amongst themselves a person to hold the office

temporarily till a new Sarpanch, as the case may be, is elected in accordance with the provisions of this Act and the rules made thereunder and such

officiating Sarpanch, as the case may be, shall perform all the duties and exercise all the powers of Sarpanch, during the pendency of election :

Provided that if the office of the Sarpanch is reserved for the member of Scheduled Castes or Scheduled Tribes or Other Backward Classes or for a

woman, the officiating Sarpanch shall be elected from amongst the members belonging to the same category :

Provided further that where the office of Sarpanch is reserved for a woman belonging to Scheduled Castes or Scheduled Tribes or Other Backward

Classes, and there is no other woman belonging to that category who can be elected to officiate as Sarpanch, any other woman belonging to the other

reserved categories may be elected to officiate as Sarpanch during the casual vacancy.]

(c) If the out-going office-bearer fails to hand over 4 any record, article, money or property of the Panchayat forthwith to his successor the prescribed

authority may by order in writing direct him to do so and on his failure to comply with such direction the prescribed authority may proceed against him

in accordance with Section 92 and take necessary steps to prosecute him under Section 98.]â€​

5.1 Bare reading of the provision of Sec.38 of the 1993 Adhiniyam reveals that as and when casual vacancy in the office of Sarpanch of any Gram

Panchayat occurs inter alia on the ground of removal of the elected Sarpanch, then members of the Panchayat shall elect from amongst themselves a

person to hold the office temporarily till a new Sarpanch is elected in accordance with the provisions of this Act and such temporarily elected

Sarpanch shall hold the office of Sarpanch and discharge duties of Sarpanch during pendency of election to elect a new Sarpanch.

Sec.38 (1)(b) of the 1993 Adhiniyam provides the procedure for filling up casual vacancy which is of electing one of the member to temporarily

work as Sarpanch from amongst themselves. The said elected temporary Sarpanch is provided to hold office till election of new Sarpanch.

7.1 If the provision of Sec.38(1)(a) and 31(1)(b) of the 1993 Adhiniyam are read in conjunction, it becomes amply clear that though clause (b)

provides for temporarily elected Sarpanch to hold office and discharge duties of Sarpanch during pendency of election of new Sarpanch but it does not

exclude the eventuality of a removed Sarapanch being reinstated owing to removal being set aside by allowing of his appeal by Appellate Authority,

becoming a cause for temporary Sarpanch (of the like of petitioner) to give way.

As soon as the order of removal of private respondent was set aside the status quo ante got restored validating the right of private respondent to

hold the office of Sarpanch, thereby obliterating all the steps taken u/S.38 of the 1993 Adhiniyam as a necessary consequence of removal. The

continuance of petitioner u/S.38 of the 1993 Adhiniyam is subject to the removal order remaining intact. The moment the cause (removal) disappears

the consequence (Election of respondent No.5 as Temporary Sarpanch) automatically crumbles.

In view of the above discussion, the ground raised by petitioner does not hold any water.

More so, petitioner who has been only temporarily elected as Sarpanch has no locus standi to challenge the order of reinstatement of erstwhile

elected Sarpanch on allowing of appeal against removal and therefore, present petition stands dismissed. Sans cost.

Learned counsel for the petitioner has relied upon the decision of this court in Ramkinkar Vishwakarma Vs. State of M.P. & ors. reported in (2012) 2

MPLJ 690, the said division Bench decision is of no avail to the petitioner since the same pertains to recruitment/appointment to the post of

Panchayatkarmi and is not even remotely related to Sec. 38 and/or Sec. 40 of 1993 Adhiniyam.

This court would be failing in it's duty by not addressing the ground raised by petitioner regarding want of jurisdiction of respondent No.2 for passing

the impugned order. In this regard, the division Bench decision of this court in Ramkinkar Vishwakarma (supra) has already held that State

Government is conferred with revisional powers under Rule 5 of M.P. Panchayat (Appeal and Revision) Rules, 1995, the relevant Para 11 of said

judgment is reproduced below for ready reference and convenience:-

““11. At the end the learned counsel for the appellant has raised an additional issue contending that the second revision filed by respondent No.

5 before the Minister was in fact not maintainable. The aforesaid contention of the learned counsel for appellant is heard only to be rejected on two

counts. Firstly, that the appellant did not raise this issue in the previous petition filed by him before the learned Single Judge and in fact submitted to the

jurisdiction of the Minister of the Department by seeking a direction to that effect from this Court and secondly in view of the decision of this Court

rendered in the case of Abdul Hasan Qureshi vs State of M.P. and others, 2008 4 MPLJ 540, wherein the provisions of Rule 5 of the MP Panchayat

and Revisional Rules have been considered and analyzed and it has been held as under:

Rule 5 has already been quoted above. Second Proviso to Rule 5 makes it clear that no application for revision shall be entertained against order

appealable under the Act. It is thus clear that an appealable order has been excluded from the jurisdiction of revision. Sub-rule (2) is to be taken note

of Powers of revision under Rule 5 may be exercised by any of the Revisional Authorities at first instance. However, sub-rule (2) makes it clear that

if, the revisional powers are exercised by the State Government (obviously at first instance of revision), no interference shall be made by other officer

mentioned in sub-rule (I) of Rule 5. Sub-rule (2) begins with a non obstante clause. It further provides that where revisional proceedings have been

commenced by the officer mentioned in sub-rule (1), the State Government may either refrain from taking any action under this rule in respect of such

case until the final disposal of such proceedings by such officer or may withdraw such proceedings and pass such order as it may deem fit. It goes to

suggest that if the revisional power is exercised by any of the officers out of the Commissioner the Director of Panchayats or the Collector, the State

Government may withdraw such proceedings or to wait until final disposal of such proceedings by such officer. This is clearly suggestive of the fact

that after final disposal of such proceedings by any of the aforesaid officers, the State Government may entertain the matter. Any other interpretation

would make the words 'until the final disposal of such proceedings by such officer' redundant and meaningless. Thus, the State Government is not

debarred from exercising revisional jurisdiction against the order of final disposal by the Commissioner, the Director of Panchayats or the Collector

made in the exercise of revisional jurisdiction at first instance

In view of above, this court is not impressed with the arguments of petitioner.

Since the petitioner has no locus to assail the reinstatement of regularly elected Sarpanch on setting aside the order of removal, present petition is

untenable and is dismissed for being not maintainable.