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Writ Appeal No.1176/2009
15.07.2010
Shri Sanjay K.Agrawal, learned counsel for the appellant.
Shri Sanjay Dwivedi, learned Government Advocate for the
respondents.
With the consent of the parties, the matter is heard finally.
This is intra court appeal arises from the order dated 10.11.2009
passed by the learned Single Judge in W.P.No.11045/2008.
Facts
briefly stated leading to filing of the instant writ appeal are
that the Collector, Balaghat, vide order dated 7.4.2005 granted
permission to the Gram Panchayat Chicholi to make appointment on the
post of Panchayat Karmi. The Gram Panchayat issued an advertisement
dated 15.5.2005 by which applications were invited for appointment on
the post of Panchayat Karmi. Pursuant to the aforesaid advertisement as
many as 9 candidates including the present appellant submitted the
application. However, the Gram Panchayat instead of making
appointment on the basis of merit, passed a resolution dated 24.6.2005
by which one Sujit Kumar was appointed as Panchayat Karmi on the
basis of majority of votes. The Sub Divisional Officer vide order dated
28.10.2005 suspended the resolution passed by the Gram Panchayat
and directed the Gram Panchayat to reconvene the meeting and to take
action for selection of Panchayat Karmi as per directions of the State
Government. However, instead of making selection from amongst the
candidates who had submitted their applications, Gram Panchayat once
again appointed Panchayat Karmi on the basis of majority of votes vide
resolution dated 12.4.2006.
The aforesaid resolution was challenged by the respondent no.5
before the Sub Divisional Officer. The Sub Divisional Officer vide order
dated 16.6.2007 suspended the resolution and forwarded the matter to
the Collector for confirmation of the order passed by him. The Collector
vide order dated 28.9.2007 confirmed the order and directed the Gram
Panchayat to select and make appointment on the post of Panchayat
Karmi on the basis of merit as per directions issued by the State
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Government, within a period of 15 days. However, the Gram Panchayat
again instead of complying with the mandate of the Collector invited
fresh applications and vide resolution dated 5.12.2007 resolved to
appoint the respondent no.6 as Panchayat Karmi and an order of
appointment dated 10.12.2007 was issued in her favour.
The resolution dated 5.12.2007 was again challenged before the
Sub Divisional Officer. The Sub Divisional Officer once again vide order
dated 10.6.2008 suspended the resolution dated 5.12.2007 passed by
the Gram Panchayat. The Collector once again vide order dated
25.7.2008 confirmed the order dated 10.6.2008 passed by the Sub
Divisional Officer. The respondent no.6 filed a writ petition namely
W.P.No.11045/2008 before this Court.
The learned Single Judge vide order dated 10.11.2009 dismissed
the writ petition preferred by the respondent no.6. However, the case of
the respondent no.6, in the peculiar facts of the case, was directed to be
considered along with other applicants for appointment on the post of
Panchayat Karmi. The aforesaid order is the subject matter of challenge
in the instant appeal.
Learned counsel for the appellant submitted that the learned
Single Judge, having found that no right is created in favour of the
respondent no.6 as the proceedings were taken by the Gram Panchayat
in violation of order dated 28.9.2007 passed by the Collector, erred in
directing the respondent no.4 to consider the case of the respondent
no.6 for appointment on the post of Panchayat Karmi. It was further
submitted that when applications were invited for the first time on
15.5.2005 the respondent no.6 was minor and, therefore, was not
eligible for appointment.
We find force in the submissions made by the learned counsel for
the appellant. A perusal of the order dated 28.9.2007 passed by the
Collector reveals that he had issued a direction to make selection from
amongst the applicants who had submitted their applications pursuant
to advertisement dated 15.5.2005. Admittedly, the respondent no.6 on
the date of first advertisement dated 15.5.2005 was minor and,
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therefore, her case could not have been considered for appointment on
the post of Panchayat Karmi.
For the aforementioned reasons, we modify the order passed by
the learned Single Judge to the extent it directs the respondent no.4 to
consider the case of the respondent no.6 along with other candidates for
appointment as Panchayat Karmi. The aforesaid direction of the learned
Single Judge is hereby set aside. However, it would be open to the Gram
Panchayat to proceed further with the process of appointment as per the
directions issued by the Collector contained in order dated 28.9.2007.
Accordingly, the writ appeal is allowed.
(S.R.Alam) (Alok Aradhe)
Chief Justice Judge
HS