ORDER
A.K. Patnaik, C.J.
1. This is an appeal against the order dated 5.10.2007 passed by the learned Single Judge in W.P. No. 12970/2007.
2. The facts briefly are that the appellant filed W.P. No. 12970/2007 claiming that the members of Sendri Gram Panchayat adopted a resolution dated 28.1.2007 under the supervision of Tahsildar, Niwari appointing the appellant as Panchayat Karmi of the Gram Panchayat and accordingly the appellant joined as Panchayat Karmi on 28.3.2007 and started working. But, all of a sudden the Collector Tikamgarh issued an advertisement on 30.8.2007 for recruitment of Panchayat Karmis on various Gram Panchayats including Gram Panchayat, Sendri. Being aggrieved the appellant filed W.P. No. 12970/2007 praying for quashing the advertisement dated 30.8.2007 issued by the Collector, Tikamgarh and for permitting the appellant to work on the existing post of Panchayat Karmi. The learned Single Judge without issuing notice to the respondents dismissed the writ petition by the impugned order dated 5.10.2007 with the observation that there were atleast two female candidates mentioned at Serial Nos. 5 and 11 and it is clear in Clause 3.4 of the Panchayat Karmi Yojna that female candidates will be given preference while making selection on the post of Panchayat Karmi and this having not been observed the resolution dated 28.3.2007 of the Gram Panchayat is in violation of Panchayat Karmi Yojna. In the impugned order dated 5.10.2007 the learned Single Judge further observed that 15 out of 20 panchas have opposed the selection of the petitioner on the ground that the mark-list submitted by the petitioner is a forged one. This is clearly mentioned in the resolution itself and thus, the resolution is in violation of the Panchayat Karmis Yojna and for this reason the Court is not inclined to interfere in the writ petition.
3. Mr. Abhishek Arjaria, learned Counsel for the petitioner submitted that under Section 70 of the Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (for short ‘the Act’) Panchayat has the power to appoint any officers or servants other than the Panchayat Secretary. He further submitted that previous approval of the prescribed authority, namely, the Collector of the district, is required only for the posts for which the officers or other servants of the Panchayat are to be appointed for the efficient discharge of its duties and not to the named officer or named servant for a Panchayat. He submitted that when the case of the appellant clearly was that he had been appointed by the Panchayat under Section 70 (1) of the Act as a Panchayat Karmi and along with writ petition the appellant had also annexed not only the resolution of the Panchayat appointing the appellant as Panchayat Karmi but also the order dated 22.8.2007 of the Sarpanch of the Gram Panchayat in which it was stated that the Panchayat in its resolution dated 28.1.2007 appointed the appellant as Panchayat Karmi, the learned Single Judge ought not to have dismissed the writ petition in limine and instead ought to have issued notices to the respondents if he had any doubts about the truth of the case of the petitioner that he had been selected and appointed by the Panchayat in its meeting held on 21.8.2007. He referred to the provisions of the Panchayat Karmi Scheme formulated by the Govt. of Madhya Pradesh, Panchayat and Rural Development Department on 12th September 1995 to show that under the scheme, the Panchayat could appoint a Panchayat Karmi by resolution and that the Collector had no power to issue an advertisement and appoint a Panchayat Karmi.
4. Mr. Kumaresh Pathak, learned Govt. Advocate on the other hand has submitted that Section 86 of the Act provides that the State Government or the prescribed authority may, by an order in writing, direct any Panchayat to perform any duty imposed on it, by or under this Act and the Panchayat is bound to comply with such directions of the State Govt. or the prescribed authority 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. He submitted that since the Gram Panchayat in this case failed to discharge its duties under Section 70 (1) of the Act, the Collector as the Prescribed Authority has issued the advertisement in exercise of his powers under Section 86 of the Act.
5. Sections 70 and 86 of the Act, on which reliance has been placed by the learned Counsel for the parties are quoted herein below:
70. 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 qualifications, method of recruitment, salaries, leave, allowance and other conditions of service including disciplinary matters of such officer and servants shall be such as may be prescribed. 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 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.
6. The language of Sub section (1) of Section 70 is clear that subject to the provisions of Section 69 every Panchayat may with the previous approval of prescribed authority appoint such other officers and servants as it considers necessary for the efficient discharge of its duties. Section 69 deals with appointment of Secretary and Chief Executive Officers of Janpad Panchayats and Zila Panchayats. Since under Sub-section (1) of Section 70 the power of Panchayat to appoint other officers and servants as it considers necessary for the efficient discharge of its duties has been made subject to the provisions of Section 69 of the Act, a Panchayat cannot appoint a Secretary or Chief Executive Officer of the Panchayat, but, it can appoint such other officers and servants as it considers necessary for the efficient discharge of its duties. A close reading of subsection (1) of Section 70 further makes it clear that the previous approval of the prescribed authority is required not to a named officer or named servant but to the appointment of such officers other than the Secretary and servants as the Panchayat considers necessary for the efficient discharge of duties of the Panchayats. Sub-section (1) of Section 86 of the Act quoted above empowers the State Government or the prescribed authority to direct the Panchayat to perform any duty imposed upon it by or under this Act and Sub-section (2) of Section 86 provides that the Panchayat shall be bound to comply with direction issued under subsection (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.
7. The case of the appellant in the writ petition was that the Panchayat had performed its duties under Sub-section (1) of Section 70 of the Act and appointed the appellant as a Panchayat Karmi and in support of his case the appellant had filed a copy of the resolution of the Panchayat dated 28.1.2007 and a copy of the appointment order issued by the Sarpanch pursuant to the resolution as annexures to the writ petition. Whether such a resolution in fact had been passed or not by the Panchayat on 28.1.2007 selecting the appellant as Panchayat Karmi could only be ascertained by the Court after a reply was filed by the Panchayat and other respondents and if the Court after considering the material before it comes to the conclusion that the Gram Panchayat had infact failed to perform its duty under Section 70 (1) of the Act, it could dismiss the writ petition after upholding the issue of the advertisement by the Collector for fresh selection of Panchayat Karmi. But, the learned Single Judge instead of issuing notice to the respondents has dismissed the writ petition in limine without ascertaining the truth of the case of the petitioner that he had been appointed by the Panchayat in the resolution dated 28.1.2007 of the Panchayat.
8. Regarding the observations of the learned Single Judge in the impugned order that female candidates had not been given preference in accordance with Clause 3.4 of the Panchayat Karmis Scheme and hence the resolution of the Panchayat was in violation of Panchayat Karmis Yojna, it was not for the Court to suo motu decide whether the resolution adopted by the Panchayt was in violation of Clause 3.4 of the Panchayat Karmis Yojna. Whether there has been such a violation or not could be decided only after replies were filed by the respondents and not at the stage of motion or admission when only the case of the appellant in the writ petition was before the Court that the appellant had been validly appointed in accordance with the resolution dated 21.8.2007 of the Panchayat and the order issued by the Sarpanch.
9. For the aforesaid reasons we set aside the impugned order dated 5.10.2007 passed by the learned Single Judge and remit the matter back to the learned Single Judge. Notice for admission be issued to the respondents and after the respondents file the return, the writ petition be heard and decided in accordance with law.