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HIGH COURT OF MADHYA PRADESH AT JABALPUR
Writ Petition No : 80 OF 2009 (s)
Rewat Singh Maravi
- V/s -
State of Madhya Pradesh & Others
Present : Hon'ble Shri Justice Rajendra Menon.
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Smt. Amrit Ruprah, learned counsel for the petitioner.
Shri Harish Agnihotri, Government Advocate for respondents/State.
Shri Vijay Shukla, learned counsel for respondent No.2.
Shri Greeshm Jain with Shri Dilip Pandey, learned counsel for
respondent No.6.
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ORDER
(20 / 07 / 2010)
Challenging the order annexure P-1 dated 15/12/08, passed
by the Chief Executive Officer, Zila Panchayat, Dindori, cancelling
appointment of the petitioner on the post of Panchayat Karmi and
directed for appointment of respondent No.6 on the post in question,
petitioner has filed this writ petition.
2. Petitioner claims to be a graduate in arts subject and
eligible for appointment on the post of Panchayat Karmi on the basis of
marks obtained by him in the High School Examination i.e. 10+2,
documents showing the qualification and marks obtained by the
petitioner are annexure P-2. It is the case of petitioner that the Gram
Panchayat Guraiya under Janpad Panchayat Shahpura, district Dindori
issued an advertisement for appointment on the post of Panchayat
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Karmi vide annexure P-3. Applications were to be submitted between
25/07/07 to 02/08/07. 17 applications were received by the concerned
gram panchayat. Appointments were to be made in accordance to the
circular annexure P-4 dated 31/07/07. After evaluating the qualification
of various candidates, it is the case of petitioner that the Gram
Panchayat recommended for appointment of the petitioner vide
resolution annexure P-5 dated 14/08/07. On the basis of the aforesaid
resolution Gram Panchayat issued order’s of appointment dated
16/08/07 appointing the petitioner on the post of Panchayat Karmi. On
the same day an intimation regarding appointment of petitioner was
sent by the Gram Panchayat to the Chief Executive Officer, Janpad
Panchayat Shahpura vide annexure P-7. Petitioner joined on the post on
17/08/07 vide annexure P-8 and while he was so working it is the case
of petitioner that by the impugned order the Chief Executive Officer
has terminated the service of the petitioner. Petitioner further points out
that after joining of the petitioner vide annexure P-10 and P-11 the
Gram Panchayat requested the Collector and the Chief Executive
Officer to notify the petitioner as Panchayat Secretary, however,
instead of notifying the petitioner as Panchayat Secretary, under
Section 69(1) of the M.P. Panchayat Raj Evam Gram Swaraj
Adhiniyam, 1993 the impugned action is taken, which according to the
petitioner is unsustainable.
3. Smt. Amrit Ruprah, learned counsel for the petitioner
inviting my attention to the provisions of Section 85 of the Panchayat
Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as the
‘Adhiniyam of 1993’) argued that the power to suspend or execution of
order or resolution is only conferred on State Government or authorized
officer and such section does not authorize the Chief Executive Officer
to terminate service of the petitioner, who had already joined and was
working. Accordingly, contending that the Chief Executive Officer had
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no authority or power to take action under Section 85 of the
Adhiniyam, of 1993, interference into the matter is sought for.
4. The second ground canvassed by learned counsel for the
petitioner is that, in the present case petitioner had already joined on the
post and was working on the post when the impugned action was taken.
Contending that the petitioner having joined on the post and as he was
already working on the post, his services could not be terminated in the
manner done, without granting him opportunity and without following
the principles of natural justice. Accordingly, contending that the
respondents have taken action in the matter in an illegal manner,
petitioner seeks interference into the matter.
5. It was emphasized by Smt. Amrit Ruprah that resolution
passed by the Gram Panchayat have been interfered with by the Chief
Executive Officer in an illegal manner and, therefore, the same is
unsustainable.
6. Respondents have filed separate returns.
7. So far as the State Government is concerned, it is the case
of State Government that after the resolution was passed by the Gram
Panchayat and when the appointment of the petitioner was made and
when papers were sent to the Chief Executive Officer for notifying the
petitioner as Secretary under Section 69(1), it was found by the Chief
Executive Officer that petitioner is not the most meritorious person and
ignoring the merit of the candidates the less meritorious candidate i.e.
the petitioner has been appointed. Accordingly, the Chief Executive
Officer pointing out infirmity in the matter of appointment, contrary to
the merit of the candidates as per the circular of the State Government
with regard to appointment on merit which was ignored, proposal was
made to the Collector for exercising powers under Section 86(6), the
Collector accepting the same directed for cancellation of appointment
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of the petitioner and for appointment of respondent No.6, who was
found to be more meritorious than the petitioner. Accordingly, bringing
on record the combined merit list showing respondent No.6 to be more
meritorious then petitioner i.e. annexure R-1, the powers conferred by
the State Government vide annexure R-5 dated 13/08/07 in the matter
of appointment on merit. Shri Harish Agnihotri, learned Government
Advocate seeks for dismissal of the writ petition.
8. Shri V.K. Shukla, learned counsel for the Janpad Panchayat
argues that in the present case contention of the petitioner to the effect
that the Chief Executive Officer has exercised power is not correct. He
points out that the entire power is exercised by the Collector, who is
empowered to do so under Section 86(2) and, therefore, there is no
illegality in the matter. Referring to the requirement of the circular
annexure R-5 dated 13/08/07 and merit to be determined on the basis of
marks obtained in High School 10+2 Examination, Shri V.K. Shukla
points out that petitioner had received 47.54 marks in the said
examination, whereas respondent No.6 had received 52.20 marks. That
being so, as merit was ignored and less meritorious candidate was
appointed, Shri Shukla submits that action taken by the Collector does
not warrant any interference. Inviting my attention to the judgment of a
Full Bench of this Court in the case of Pawan Rana Vs. State of M.P.
& Ors. AIR 2010 M.P., 1, and a Division Bench judgment in the case
of Leelawati (Smt.) & Anr. Vs. State of M.P. & Ors., ILR (2008)
M.P. 2817, Shri Vijay Shukla argues that the Collector has power to
take action in the matter under Section 86(2) and in doing so, he has not
committed any error.
9. Shri Jain and Shri Pandey, learned counsel for respondent
No.6, apart from adopting the arguments of Shri Agnihotri and Shri
Shukla submits that as statutory remedy of appeal is available to the
petitioner under the Panchayat (Appeal and Revision) Rules, therefore,
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a writ petition directly before this Court is not maintainable. In support
of the aforesaid contention, they invites my attention to the principles
laid down by the Supreme Court in the case of Sadhana Lodh Vs.
National Insurance Co. Ltd & Anr. 2003(3) SCC, 524, and Star
Paper Mills Pvt. Ltd. Vs. State of U.P. & Others, 2006(10), SCC,
201.
10. Smt. Amrit Ruprah, further submitted that availability of
alternate remedy is not a ground for not exercising jurisdiction under
Article 226 and in support thereof places reliance on a judgment
rendered by a Division Bench of this Court in the case of Prabhu
Dayal Patel Vs. State of M.P. & Anr. 2003(5) MPHT, 502, and
contends that removal of the petitioner without granting opportunity is
illegal. Reliance is also placed on a judgment rendered by a Bench of
this Court in the case of Satendra Singh Vs. S.D.O. Lahar, 1998(1)
MPWN, 44.
11. I have heard learned counsel for the parties and perused the
original records produced by Shri Harish Agnihotri with regard to
action that has been taken in the matter.
12. Before adverting to consider the rival contention it would
be appropriate to take note of procedure to be followed for
appointment. The State Government has issued a circular as contained
in annexure R-5 dated 13/08/07 and according to the aforesaid circular
a candidate should be High School (10+2) passed and the certificate
and mark-sheet of the said examination should be submitted. Apart
from prescribing various criterias the circular contemplates that
appointment to the post has to be strictly on the basis of merit and
marks obtained in the High School Examination should be the
determining factor. Apart from the same various other benefits are to be
extended, which are not relevant for deciding the present case. So far as
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present case is concerned, records indicate that after the advertisement
was issued and the process of selection was initiated, 17 applications
were received for appointment on the post in question. Out of the 17
applications received, a combined merit list was prepared and the same
is filed by the State Government as annexure R-1. There is no dispute
with regard to the fact that as per merit in the category in question, the
petitioner whose name appears at Sr. No.3 had received 47.54 marks in
the High School Certificate Examination and after considering the total
criterias i.e. the marks obtained in the High School Examination, the
marks obtained in the graduation level, it is found that he has received
less marks than respondent No.6, Shri Surendra Mishra both in the
High School level and in graduation level. Petitioner, as already
indicated hereinabove, had received 47.54 marks in the High School
Examination, whereas respondent No.6 has received 52.20 marks in the
said examination. That being so, as per criteria laid down by the State
Government, respondent No.6 was more meritorious than the
petitioner.
13. Accordingly, inspite of the aforesaid when the Gram
Panchayat passed the resolution appointing the petitioner, a less
meritorious candidate and when the papers were forwarded to the Chief
Executive Officer of Janpad Panchayat, Shahpura for taking action for
notifying the petitioner’s name as a Secretary of the Panchayat under
Section 69, the Chief Executive Officer found that, contrary to the
requirement of circular annexure R-5, a less meritorious candidate has
been selected for appointment. He, therefore, placed the matter before
the Collector for exercising powers under Section 86(2), the Collector
went through records and found that it is respondent No.6, who should
have been appointed, instead a less meritorious candidate has been
appointed. Accordingly, the Collector issued direction to the Chief
Executive Officer to issue appointment order appointing the more
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meritorious person i.e. respondent No.6. Accordingly, the impugned
order has been passed by the Chief Executive Officer, as directed by
the Collector. The question, therefore, would be, as to whether the
Collector had the power to do so ?
14. Smt. Amrit Ruprah, learned counsel emphasized that under
Section 85 of the Adhiniyam, 1993, the Collector or the State
Government is only authorized to suspend execution of a resolution or
a order and cannot cancel the appointment or direct for appointment of
any other person.
15. On the contrary, respondents have placed reliance of
Section 86(2) and contend that the power can be exercised by Collector
under this Section.
16. It is not in dispute that the Collector is the prescribed
authority for exercising power under Section 86(2) of the Adhiniyam of
1993 and in the case of Leelawati (supra), a Division Bench of this
Court has considered this question and in para 3 & 4 the matter has
been so dealt with :
“3. We are unable to accept the aforesaid submission
of Mr. Arjaria Section 86 of the Adhiniyam is quoted
hereinbelow:
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 and the performance or execution
8thereof by such Panchayat is, in the opinion of the
State Government or prescribed authority,
necessary in public interest.
(2) The Panchayat shall 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.
It will be clear from sub-section (1) of Section 86
of the Adhiniyam that the State Government and the
prescribed authority may by an order direct any
panchayat to perform any duty imposed upon it by or
under the Act or under any other law for the time being in
force. It will be further clear from sub-section (2) of
Section 86 of the Adhiniyam that the panchayat shall be
bound to comply with the direction issued under Sub-
section (1) and if it fails to do 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 will be
entitled to the same protection and the same extent under
the Act as the panchayat or its officers or servants
exercise such powers.
4. In the instant case, it is not disputed that Collector
who was the prescribed authority issued a direction to the
Gram Panchayat, Baroli to perform its duty of appointing
a Panchayat Karmi under Section 70(1) of the Adhiniyam
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and that the Gram Panchayat, Baroli failed to comply
with such directions. Hence, under sub-section (2) of
Section 86 of the Adhiniyam, the Collector as the
prescribed authority had the power to get this direction
complied with. Under Sub-section (2) of Section 86 of
the Adhiniyam the State Government or the prescribed
authority also have all necessary powers to get the
directions complied with. The expression “all necessary
powers” will include the power to authorize any authority
to perform the duty of the panchayat such as appointment
of a Panchayat Karmi under sub-section (1) of Section 70
of the Adhiniyam. Hence the Collector as the prescribed
authority had the power under sub-section (2) of Section
86 of the Adhiniyam to authorize the Chief Executive
Officer, Janpad Panchayat, Ajaygarh to appoint a
Panchayat Karmi and the Chief Executive Officer, Janpad
Panchayat, Ajaygarh by virtue of such authorization had
also the power to select and appoint a Panchayat Karmi
of the Gram Panchayat. But since the order of
appointment is issued pursuant to authorization by the
prescribed authority, the order of appointment is to be
treated as an order passed by the prescribed authority.”
(Emphasis Supplied)
17. If the aforesaid enunciation of law is taken note of, it is
clear that the Division Bench has clearly laid down that the Collector
has authority to direct for appointment of a Panchayat Karmi and the
Chief Executive Officer can, if directed by the Collector issue the order
of appointment. Once it is held by a Division Bench that the power
conferred to Collector under Section 86(2) is wide enough and the
expression “all necessary power”, includes power to direct appointment
and selection, I am of the considered view that ground that has raised
by Smt. Amrit Ruprah cannot be accepted. A Full Bench also in the
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case of Pawan Rana (supra) has considered the said question and in
para 10 & 11, the matter has been so dealt with :
“10. The expression “all necessary powers” in Section
86(2) is very wide and will mean all the powers that the
panchayat has under the Adhiniyam, 1993. This will be
clear from Section 86(2) which states that in exercising
such powers, the State Government or the prescribed
authority “shall be entitled to the same protection and the
same extent under the Act as the Panchayat whose
powers are exercised.” The object of the Legislature in
making such a provision in Section 86(2) is to ensure that
if the Panchayat fails to perform any particular duty
conferred on it under the Act despite directions issued by
the State Government or the prescribed authority under
Section 86(1), the State Government or the prescribed
authority must have the required powers to get the
directions complied with and when the State Government
or the prescribed authority exercises such necessary
powers, it will be deemed as if the Panchayat has
exercised its powers under the Act.
11. This interpretation of Sections 86(1) and (2)
suggested by us is in accordance with the well settled
principle of interpretation that the provision of a statute
must be so construed as to make it effective and
operative. In Tinsukha Electric Supply Co. Ltd. Vs. State
of Assam, (AIR 1990, SC 123), M.V. Venkatchaliah, J.
as he then was, speaking for himself and R.S. Pathak,
C.J., S. Natrajan and S. Ranganathan, JJ. observed in
paragraph 49 at page 152 of the AIR:
“The Courts strongly lean against any
construction which tends to reduce a Statute to a
11futility. The provision of a Statute must be so
construed as to make it effective and operative, on
the principle ‘ut res majis valeat quam periat’.”
Unless, therefore, we take the view that under
Section 86(2) the State Government or the prescribed
authority can exercise the same powers as that of the
Panchayat through one officer or the other where the
Panchayat fails to comply with the directions of the State
Government or the prescribed authority, the provision in
Section 86(2) will be rendered futile and unworkable.”
(Emphasis Supplied)
18. If the principles of law as laid down by the Full Bench in
the case of Pawan Rana (supra) is taken note of, it is crystal clear that
the Collector in exercise of the power conferred on him under Section
86(2) can direct for appointment or selection of Panchayat Karmi and if
Collector has power to direct for appointment of Panchayat Karmi, the
power to direct for making correction in selection or canceling
appointment illegally made would also come within the power
conferred on the Collector. In that view of the matter, the first ground
canvassed by Smt. Amrit Ruprah is found to be wholly unsustainable.19. So far as second ground is concerned, it is only pointed out
by Smt. Amrit Ruprah that the petitioner who had joined and was
working on the post has been removed without granting opportunity.20. Grant of opportunity of hearing and compliance with the
principle of natural justice is not an empty formality. Merely because
opportunity of hearing or defence is not granted, that by itself is not a
ground, in each and every case to interfere with an action. The
corresponding question with regard to prejudice caused due to non-
grant of opportunity and consequently effect of the same on the final
outcome has to be taken note of by a writ court before interfering into
12matter on such consideration. That being so, merely because,
opportunity is not granted, that by itself is not a ground for interfering
in the matter. This Court is further required to analyze the merit of the
case and find out if non-grant of opportunity had caused an adverse
effect on the right of the petitioner and has consequently prejudiced his
case.21. Except for contending that petitioner has not been granted
opportunity and his appointment has been cancelled, nothing is brought
to the notice of this Court on the basis of which it can be held that
action of respondents in granting appointment to a more meritorious
candidate is illegal. It is common ground that appointment to the post in
question has to be made on the basis of merit to be evaluated on the
basis of marks obtained in the qualifying examination i.e. High School
10+2 Examination. Admittedly, in the present case if the marks
obtained by the petitioner and respondent No.6 are evaluated, the
combined merit list annexure R-1 shows that petitioner had obtained
47.54 marks and respondent No.6 had obtained 52.20 marks. The
combined merit list indicates that in the category of Schedule Tribe
candidates in all out of 11 eligible candidates there were 4 candidates,
they were, the petitioner, respondent No.6 and one Heera Singh and
Rajesh Maravi. So far as Heera Singh is concerned, he had obtained
49.38 marks in the qualifying examination and Rajesh Maravi had
received 41.40 marks, petitioner had received 47.54 marks and
respondent No.6 had received 52.20 marks. The merit list was prepared
by the Collector and finding respondent No.6 Surendra Singh to have
received the highest marks in the category Schedule Tribe i.e. 52.20
marks, he was directed to be appointed. If that be the position on merit
and if a more meritorious candidate has been appointed by the
Collector, merely because opportunity of hearing is not granted to
petitioner that by itself is not a ground to interfere in the matter. Once it
13is held by this Court that the Collector has power to pass such or order
under Section 86(2) and further when it is found that the Collector after
evaluating the records had ordered for appointing the more meritorious
candidate, accordingly, on the ground that petitioner’s appointment is
cancelled without granting opportunity, it is not in the interest of justice
to interfere in the matter by remanding the matter to the competent
authority for deciding the claim afresh after hearing the petitioner.
Petitioner is unable to demonstrate before this Court as to how and in
what manner grant of opportunity would make any difference to the
position of merit and the final outcome.22. Accordingly, I am of the considered view that grant of
opportunity to the petitioner in the facts and circumstances of the case
would be a empty formality and in the absence of any injustice or
prejudice caused to the petitioner by non-grant of opportunity, the
aforesaid ground is unsustainable.23. Having considered the question on merit and having found
that the petitioner is not entitled for appointment on merit and as there
is no illegality in cancellation of the appointment as ordered by the
Collector, it is not necessary now to go into the question of existence of
alternate remedy. Accordingly, finding no case for interference on the
ground raised by the petitioner and further finding on merit this petition
to be devoid of substance, the same is dismissed, no order as to costs.(RAJENDRA MENON)
JUDGE
ss*