J.K. Maheshwari, J
This petition has been filed under Article 226/227 of the Constitution of India challenging the order dated 14.6.2007 of appointment of Respondent No. 4 as Panchayat Karmi in Gram Panchayat Chandrapura, and the procedure followed in selection has also been questioned.
It is the precise grievance of Petitioner that power to appoint the Panchayat Karmi is vested with Gram Panchayat and action taken by the Respondents No. 2 and 3 to appoint Respondent No. 4 as Panchayat Karmi is against the provisions of Panchayat Act. It is further said that procedure followed in the selection by Respondent No. 3, and approved by Respondent No. 2 is arbitrary and also against the provisions of the act, however, it is liable to be quashed.
Mr. Abhishek Tugnawat, Advocate has drawn my attention to the order impugned Annexure P-1 dated 14.6.2007 by which Respondent No. 4 was appointed as Panchayat Karmi, in the order it is mentioned that in exercise of power u/s 86(2) M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter it be referred as "Panchayat Act") one Devilal s/o Hemraj Gayari (Respondent No. 4) is appointed as part time Panchayat Karmi on payment of honorarium. Counsel for Petitioner submits that no such power is vested with the Chief Executive Officer of the Janpad Panchayat or the Collector under Sub-section (1) or (2) of Section 86 of Panchayat Act, therefore, the order passed by the Respondents No. 2 and 3 is illegal and without jurisdiction. It is further urged that Respondent No. 4 has been appointed by giving undue marks arbitrarily, therefore, entire process of selection is liable to be quashed.
While issuing show cause notice to other side on 17.8.2007, it was directed that reply be filed within 4 weeks, otherwise Respondent No. 3 shall personally remain present in Court along with the record of selection and appointment. Though the reply has not been filed, but Respondent No. 3 is present with record, however, I have proceeded to decide the case on merits.
Shri M.S. Dwivedi, Panel Lawyer has drawn my attention to the instructions issued on 27.1.2006 by the Principal Secretary, Rural Development Department, whereby under National Rural Employment Guarantee, Adhiniyam, 2005 a scheme known as M.P. Rural Employment Guarantee Scheme was prepared on 2.1.2006 and decided to be implemented in the State. In the said instructions, it was mentioned that in various Gram Panchayats, the post of Panchayat Karmies are vacant and the additional charge has been given to the Secretaries of nearby Gram Panchayats. However, the vacant posts of Panchayat Karmies be now filled up and the Panchayat Secretary of one Gram Panchayat shall not hold the additional charge of another Gram Panchayat. In sequence thereto, all the Gram Panchayats were directed to take step for appointment of Panchayat Karmi in their respective Panchayats within 30 days otherwise, such power may be exercised by the prescribed authority i.e. Collector as per Section 86(1) and (2) of the Panchayat Act. In the said instructions requisite qualification and the procedure required to be followed was also specified. Pursuance to the Government instructions the Collector, Neemuch has issued a letter dated 12.6.2006 to the Chief Executive Officer, Janpad Panchayat, Manasa to take step for selection and appointment of Panchayat Karmi in Gram Panchayat, Chandrapura. In furtherance thereto he has issued an advertisement for appointment of Panchayat Karmi of Gram Panchayat Chandrapura. On receiving applications a merit panel was prepared, wherein Respondent No. 4 has secured 55.87% marks, however an order to appoint him as Panchayat Karmi as per Annexure P-1 has been issued.
During hearing I have gone through the provisions of Panchayat Act; Section 69(1) deals with the appointment of Secretary in the Gram Panchayat, Sub-section 2 deals appointment of Chief Executive Officer in Janpad Panchayat, and Sub-section (3) deals the appointment of Chief Executive Officer of Zila Panchayat. Section 70 deals appointment of other officers and servant of Panchayat. In exercise of powers of Section 70 the Government of M.P. has issued the executive instructions on 12.9.1995, which is popularly known as "Panchayat Karmi Scheme", under the said scheme procedure of selection, requisite qualification for appointment and the amount of honorarium payable to Panchayat Karmi has also been mentioned. It is further specified that such Panchayat Kami may be declared as Panchayat Secretary by the State Government or by prescribed authority in exercise of the power of Sub-section (1) of Section 69 of the Panchayat Act. The relevant provisions of Section 69(1) and Section 70(1)(2) are reproduced herein below:
69. Appointment of Secretary and Chief Executive Officer - (1) The State Government or the prescribed authority may appoint a Secretary for a Gram Panchayat or group of two or more Gram Panchayats :
Provided that the person holding the charge of a Secretary of Gram Panchayat immediately before the commencement of this Act shall continue to function as such till a Secretary is appointed in accordance with this section :
Provided further that a person shall not hold charge of a Secretary of Gram Panchayat, if such a person happens to be relative of any office bearer of the concerned Gram Panchayat.
Other officers and servants of Panchayat. - (1) Subject to the provisions of Section 69 every Panchayat may with previous approval of prescribed authority appoint such other officers and servants as it considers necessary for the efficient discharge of its duties.
(2) The qualification method of recruitment, salaries, leave, allowance and other conditions of service including disciplinary matter of such officers and servant shall be such as may be prescribed.
On going through the provisions of Sections 69 and 70 of the Panchayat Act, it is apparent that Section 69 deals the appointment of Secretary and Chief Executive Officer and Section 70 deals with other officers and servant of the Panchayat, therefore, the scope of both the sections is different. Section 69(1) of Panchayat Act confers power to the State Government or the prescribed authority to appoint a Secretary for a Gram Panchayat or group of the Panchayat. Section 2(XXI) defines prescribed authority to mean such officer or authority as State Government who by notification assigned to discharge the function of prescribed authority. However by issuing the notification in exercise of the power u/s 69(1)(4) and in exercise of the power of Section 70(1), the Collector and Additional Collector respectively have been declared as prescribed authority.
In the present case the appointment of Respondent No. 4 as Panchayat Karmi is under challenge and parties have referred Clause 2.4 to indicate that such appointment is under the statutory scheme framed in exercise of power u/s 70(1), therefore, Clause 2.4 of Panchayat Karmi Scheme is also being reproduced herein below :
Madhya Pradesh Panchayat Raj Adhiniyam Ki Dhara 70 Ki Updhara (1) Me Pradatt Shaktiyon Ka Prayog Karte Hue Rajya Sarkar Nirdeshit Karti Hai Ki Uprokta Nirdeshon Ke Antargat Gram Panchayaton Ko Chhodkar Jinme Shasan c Niyukt Gram Sahayak Panchayat Sachiv Ka Karya Karenge, Shesh Gram Panchayaten, Panchayat Sachiv Ke Karya Sampadan Ke Liye Kisi Ek Vyakti Ko Swayam Apne Star Se In Nirdeshon Ke Antargat Niyukt Karegi. Yeh Vyakti Gram Panchayat Ki Awashyakta Anusar Purnakalik, Ardhkalik Athwa Samvida Aadhar Par Niyukti Sambandhit Gram Panchayat Ka Mansevi Karmchari Hoga Tatha Yah "Panchayat Karmi" Ke Naam Se Jaanaa Javega. "Panchayat Karmi Ko Madhya Pradesh Panchayat Raj Adhiniyam Ki Dhara 69(1) Ke Antargat Sambandhit Gram Panchayat Ka Sachiv Bhi Ghoshit Kiya Jaata Hai.
Learned Counsel appearing for Respondents/State is not in a position to demonstrate that the Panchayat Karmi Scheme has been published or notified in a official Gazette Section 2(25) of M.P. General Clauses Act defines notification, meaning thereby a notification published in the Gazette. Thus, the scheme is essentially required to be notified in the Gazette to get sanction or force of law, otherwise it may be treated as executive instructions. On going through the above noted provisions of Section 69,70 and scheme is apparent that to appoint a Secretary of Gram Panchayat, Collector is the prescribed authority. But, the appointment of Panchayat Karmi may be made by the Gram Panchayat under the scheme, who may be declared as Panchayat Secretary in exercise of powers u/s 69(1). Thus, appointment of Panchayat Karmi is the function of Gram Panchayat at the same time Section 69(1) does not leave the matter of appointment of Panchayat Secretary to any authority other than the prescribed authority or the Government.
Section 86 concers the power on the State Government or the prescribed authority to issue order directing the Panchayat for execution of works in certain cases, however to carry out the purpose of M.P. Rural Employment Guarantee Scheme the Government of M.P. has issued the instructions dated 27.1.2006 through the Principal Secretary of the Department concerned directing for the appointment of the Panchayat Karmi under the scheme on failure, the prescribed authority are directed to exercise the powers of Gram Panchayat as prescribed u/s 86(2) of the Act. In support to the validity attached provisions of Section 86 of the Panchayat Act is also relevant, which is being reproduced as under:
86. (1) 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 and 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 the 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.
Bare reading of the said provisions, it is apparent that the State Government or the prescribed authority by an order in writing may direct the Panchayat to perform any duty imposed upon it by or under this Act or under any other law for the time being inforce and it may further direct to perform or execute any work which has not been done by the Panchayat, if in the opinion of the State Government or of the prescribed authority it is necessary in public interest. Under Sub-section (2), on issuing the instructions by Government or by the prescribed authority, the Panchayat is bound to comply with the directions otherwise, the said authority shall have all necessary power to get the directions complied with at the expenses, if any, of the Panchayat, for which the Government or the prescribed authority shall be entitled to the same protection and to the extent as Panchayat or its officers have.
It is further apparent that appointment of a Panchayat Karmi may be made by the Gram Panchayat, who may later on declared as Secretary by the prescribed authority in exercise of powers u/s 69(1) of the Panchayat Act. By the instructions of the Government of M.P. issued on 27.1.2006 through Principal Secretary, Government of M.P. Panchayat and Rural Development Department, the Gram Panchayat is bound to appoint Panchayat Karmi in discharge of their function. On failure the Government or the prescribed authority may get discharge such function, and their action shall be recognised as an act of Panchayat and have same protection under this Act.
In the present case of Respondent No. 4 was appointed on the post of Panchayat Karmi, not by the Gram Panchayat but by the Chief Executive Officer. The Collector district Neemuch has written a letter dated 12.6.2006 to the Chief Executive Officer of the Janpad Panchayat, Manasa to take action for appointment of the Panchayat Karmi and pursuance to such letter an advertisement was issued by the Chief Executive Officer, and in after selection a list of the selected candidates was prepared by him, perusal of the said selection list makes it clear that Respondent No. 4 is allotted 30% marks for technical qualification and 5% marks in other heads, though in advertisement, no technical qualification was sought for from the aspirants. It is further apparent from the record that preference was given to the persons possessing the technical qualification, in this way Respondent No. 4 has secured 58.87% marks. After going through the qualification prescribed under the Panchayat Karmi Scheme, it is clear that no technical qualification was prescribed as essential qualification or desirable for appointment as Panchayat Karmi. Thus in the head of technical qualification, he is not entitled to get 30% marks, or to get preference O''er others. To give preference to one over other, two persons must be at same threshold then one may get preference on account of having any desirable qualification or experience. The perusal of merit list indicates that 30% marks has been allotted to Respondent No. 4 for technical qualification and 5% marks in the head of other qualification, no other persons were allotted those marks, which apparently indicates arbitrariness on the part of the Chief Executive Officer. Therefore, the process of selection suffers from bias of arbitrariness, which was approved by the Collector without due application of mind. Thus, it is to be held, prescribed authority has not applied its mind.
In view of the foregoing discussions, it is apparent that the appointment of the Secretary of Gram Panchayat may be made by the Government or by the prescribed authority i.e. Collector under Sub-section (1) of Section 69 of the Panchayat Act. The appointment of the Panchayat Karmi is within the connotation "other officers and servants necessary for efficient discharge of duties of the Panchayat" u/s 70, Sub-section (1). The Panchayat Karmi Scheme, though issued u/s 70 Sub-section (1) but it is only the executive instructions, gave power to the Panchayat to appoint Panchayat Karmi. Failure to discharge such function by the Gram Panchayat, the Government of M.P. or the Collector i.e. prescribed authority may discharge such liability. As discussed above, it is clear that for the purpose of Section 69 prescribed authority is Collector and for Section 70 Collector/Additional Collector, therefore, on failure to discharge the liability of Section 86(2) the process of selection and appointment of Panchayat Karmi must be made by them or under their close surveillance and approval. In the present case selection and appointment was done since inception till completion by the Chief Executive Officer, without any approval of the prescribed authority; such action cannot be recognized, akin to the act of prescribed authority and do not have the protection under the provisions of this Act as specified under Sub-section (2) of Section 86 of the Panchayat Act. Moreover as per the discussion made herein above, it is apparent that Chief Executive Officer has acted with the bias of arbitrariness in the matter of preparation of selection list, therefore, also selection panel and process of selection is liable to be quashed.
In view of the foregoing discussion, this petition is allowed. The selection as made by the Respondents No. 2 and 3 for the post of Panchayat Karmi of Gram Panchayat Chandarpura is hereby quashed accordingly the order of appointment dated 14.6.2002 passed in favour of Respondent No. 4 is also quashed. In the facts and circumstances of the case, there shall be no order as to costs.
