Soukhiram Patel vs State Of Chhattisgarh And Ors
2021 Latest Caselaw 1127 Chatt

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                                                                 AFR
             HIGH COURT OF CHHATTISGARH, BILASPUR
               Writ Petition (S) No.7266 of 2009
      Soukhiram Patel S/o Bakhuram Patel Aged about 36
      years,   R/o  Village   Chanta,  Tehsil­Bodla, P.S.­
      Pandataraie, Dist­Kabirdham (CG)
                                                 ­­­­ Petitioner
                              Versus
  1. State of Chhattisgarh, Through Secretary, Panchayat &
     Rural Development Deptt., D.K.S. Bhawan, Raipur, Dist­
     Raipur (CG)
  2. Chief Executive Officer, Janpad Panchayat Bodla, Dist­
     Kabirdham (CG)
  3. Gram Panchayat­Chanta Through Sarpanch               Vikaskhand
     Bodla, Tehsil­Bodla, Dist­Kabirdham (CG)
  4. Ganeshram S/o Udeyram Patel R/o Village­Madmada, near
     village Chanta, Tehsil­Bodla, Dist­Kabirdham (CG)
                                                 ­­­­ Respondents

For Petitioner : Mr.Gary Mukhopadhyay, Advocate For Res.No.1&2/State : Mr.Ravi Bhagat, Dy.G.A.

For   Respondent No.3     :    None present
For   Respondent No.4     :    Mr.Sudhir Verma, Advocate

Hon'ble Shri Justice Sanjay K. Agrawal

Order on Board

14/7/2021

1. Proceedings of this matter have been taken­up through

video conferencing.

2. The petitioner herein calls in question legality,

validity and correctness of the order dated 5.11.2009

(Annexure P­7) passed by the Collector, Kabirdham, by

which revision preferred by the petitioner has been

dismissed affirming the order dated 8.4.2009 (Annexure

P­6) passed by the Sub­Divisional Officer (Revenue),

Bodla setting aside the resolution dated 23.9.2007

selecting the petitioner on the post of Panchayat

Karmi, Gram Panchayat Chanta, Tahsil Bodla, District

Kabirdham.

3. Gram Panchayat Chanta through its Sarpanch issued an

advertisement on 16.4.2007 inviting applications for

selection and appointment on the post of Panchayat

Karmi in which the petitioner and respondent No.4

participated and thereafter in the meeting of General

Body held by said Gram Panchayat on 23.9.2007 selected

the petitioner as Panchayat Karmi, but subject to

approval of Gram Sabha in accordance with the

provisions contained in the Chhattisgarh Panchayat Raj

Adhiniyam, 1993 (hereinafter called as 'the Adhiniyam

1993') and on 4.10.2007 the concerned Gram Sabha

approved the selection of the petitioner as Panchayat

Karmi unanimously and thereafter on 24.10.2007 the

petitioner was appointed as Panchayat Karmi for Gram

Panchayat Chanta and thereafter by order dated

5.11.2007 (Annexure P­5) the Deputy Director,

Panchayat and Social Welfare, Kabirdham being the

Prescribed Authority appointed the petitioner as

Panchayat Secretary for Gram Panchayat Chanta. Against

the resolution dated 23.9.2007 selecting the

petitioner as Panchayat Karmi, respondent No.4 herein

preferred an appeal under Section 91 of the Adhiniyam

1993 read with Rule 3(d) of the Chhattisgarh

Panchayats (Appeal and Revision) Rules, 1995

(hereinafter called as 'Rules of 1995') before the

Sub­Divisional Officer (Revenue), Bodla, in which he

called in question the selection of the petitioner on

the post of Panchayat Karmi. The SDO, Bodla by order

dated 8.4.2009 (Annexure P­6) set­aside the selection

made by resolution No.1 dated 23.9.2007 passed by Gram

Panchayat Chanta for the reasons recorded therein and

appointed respondent No.4 by that order. Feeling

aggrieved against the order dated 8.4.2009 (Annexure

P­6) passed by the SDO, Bodla, the petitioner

preferred revision before the Collector, Kabirdham.

The Collector, Kabirdham by the impugned order dated

5.11.2009 (Annexure P­7) affirmed the order passed by

the Sub­Divisional Officer, Bodla and dismissed the

revision, resulting into filing of the present writ

petition by the petitioner before this Court

questioning the order passed by the SDO and the

Collector branding the same as arbitrary and illegal

stating inter­alia that appeal as framed and filed

under Section 91 of the Adhiniyam 1993 read with Rule

3(d) of the Rules of 1995 before the SDO was not

maintainable.

4. Return has been filed by respondent No.4 stating

inter­alia that the petitioner's appointment on the

post of Panchayat Karmi has rightly been set­aside by

the SDO and the writ petition as framed and filed

deserves to be dismissed having no merit.

5. Mr.Gary Mukhopadhyay, learned counsel for the

petitioner, would make solitary contention that by

resolution dated 23.9.2007 General Body of Gram

Panchayat Chanta has only resolved to select the

petitioner as Panchayat Karmi subject to approval of

Gram Sabha of the concerned village and thereafter

Gram Panchayat Chanta by its order dated 24.10.2007

has only appointed him, therefore, the order dated

24.10.2007 is appealable under Section 91 of the

Adhiniyam 1993 read with Rule 3(d) of the Rules of

1995 and the resolution dated 23.9.2007 was not

appealable, as such, appeal was not maintainable

before the SDO and the SDO has committed legal error

in entertaining the appeal against the resolution

dated 23.9.2007 and overstepping its jurisdiction by

directing to appoint respondent No.4 on the post of

Panchayat Karmi and the Collector has further

committed legal error in dismissing the revision filed

by the petitioner, as such, the order dated 8.4.2009

(Annexure P­6) passed by the SDO and the order dated

5.11.2009 (Annexure P­7) passed by the Collector

deserve to be set­aside. He would rely the judgment of

the Madhya Pradesh High Court in the matter of

Devidayal Raikwar v. State of M.P. and others1.

6. On the other hand, Mr.Sudhir Verma, learned counsel

for respondent No.4, would submit that since 23.9.2007

the petitioner was selected though subject to approval

of concerned Gram Sabha, but no such approval of Gram

Sabha was required. He would rely upon the judgment of

the Madhya Pradesh High Court in the matter of Abdul

Hasan Qureshi v. State of M.P. and others 2 to support

his contention.

7. I have heard learned counsel appearing for the

parties, considered their rival submissions made

hereinabove and also went through the records with

utmost circumspection.

8. Admittedly and undisputedly, by resolution of the Gram

Panchayat dated 23.9.2007 the petitioner was selected

on the post of Panchayat Karmi subject to approval of

Gram Sabha and thereafter Gram Sabha approved the

resolution of Gram Panchayat on 4.10.2007 and

thereafter Sarpanch of Gram Panchayat Chanta has

issued appointment order to the petitioner on

24.10.2007, but respondent No.4 preferred an appeal

1 2008 (4) MPLJ 647 2 (2008) 4 MPLJ 546

under Section 91 of the Adhiniyam 1993 read with Rule

3(d) of the Rules of 1995, not against the order of

appointment of the petitioner on the post of Panchayat

Karmi dated 24.10.2007, but against the resolution

dated 23.9.2007 selecting the petitioner on the post

of Panchayat Karmi.

9. The question for consideration would be, whether an

appeal under Section 91 of the Adhiniyam 1993 read

with Rule 3(d) of the Rules of 1995 would lie against

the resolution dated 23.9.2007 or against the order

dated 24.10.2007 appointing the petitioner on the post

of Panchayat Karmi.

10. In order to consider the plea, it would be

appropriate to notice Rule 3 of the Rules of 1995

which states as under:­

"3. Appeal and appellate authorities.­Save where it has been otherwise provided in the Act or rules or bye­laws made thereunder, an appeal shall lie,­

(a) in the case of an order passed by the Sub­ Divisional Officer under any provision of the Act or rules or byelaws made thereunder to the Collector.

(b) in the case of an order passed by the Collector under any provision of the Act or rules by bye laws made thereunder to the Director of Panchayat.

(c) in the case of an order passed by the Director of Panchayats to the State Government.

(d) in the case of an order passed by the Panchayat specified in Column (1) of the Table below­ to the authority specified in the corresponding entry in column (2) thereto.

TABLE

(1) (2) (a) Gram Panchayat Sub­Divisional Officer. (b) Janpad Panchayat Collector. (c) Zila Panchayat Director of Panchayat.

11. A careful perusal of Rule 3(d) of the Rules of

1995 along with table enacted therein would show that

against the order passed by the Panchayat specified in

Column (1), an appeal would lie before the Sub­

Divisional Officer. The word "order" has been used in

sub­rule (d) of Rule 3 of the Rules of 1995.

12. The question for consideration whether appeal

under Section 91 of the Adhiniyam 1993 read with Rule

3(d) of the Rules of 1995 would lie against the order

appointing Panchayat Karmi or resolution selecting the

petitioner as Panchayat Karmi would be appealable

under Section 91 of the Adhiniyam 1993 read with Rule

3(d) of the Rules of 1995 came­up for consideration

before the Madhya Pradesh High Court in the matter of

Devidayal Raikwar (supra), in which the word

"resolution" was considered by a Division Bench and

held as under:­

"9. It will be clear from Clause 4.4 of the Panchayat Karmi Scheme quoted above that all applications for appointment of Panchayat Karmi will be placed before the General Body of the Gram Panchayat for consideration and

the General Body of the Gram Panchayat, after consideration of the applications, shall select a candidate. It will be further clear from Clause 4.5 that after such selection is made by the Panchayat by a resolution, the Sarpanch of the Gram Panchayat shall issue an appointment letter to the selected person. In Black's Law Dictionary, First Edition, the expression 'resolution' has been described as 'a formal expression' of the opinion or will of an official body or a public assembly, adopted by vote. The resolution of the Panchayat is therefore a formal expression of opinion of the General Body of the Panchayat in favour of selection of a particular applicant as Panchayat Karmi. The letter of appointment issued by the Sarpanch to carry out the resolution of the General body of the Panchayat is the order of appointment of Panchayat Karmi."

13. Thereafter, their Lordships considered as to

whether appeal would lie against resolution or appeal

would lie against the order appointing Panchayat Karmi

issued by the Sarpanch pursuant to the resolution of

General Body of Gram Panchyaat and held as under:­

"10. Obviously, the provisions of an Act cannot be interpreted by reference to the provisions of a scheme made by the Government to give effect to the provisions of the Act, but has to be interpreted by reference to the provisions of the Act. As we have seen, Section 70 of the Adhiniyam does not provide for appointment of a Panchayat Karmi by a resolution of the Panchayat. Hence, an appointment order of a Panchayat Karmi issued by the Sarpanch of a Gram Panchayat can be challenged by way of appeal under Section 91 of the Adhiniyam read with the Rules of 1995. Section 91 of the Adhiniyam states that an appeal against an order of a Panchayat under the Adhiniyam shall lie to such authority and in such manner as may be prescribed. Rule 3 of the Rules of 1995 prescribes the 'Appellate Authority' and states that an appeal shall lie in the case of an

order passed by the Gram Panchayat to the Sub­ Divisional Officer. Thus, an order of appointment of a Panchayat Karmi issued by the Sarpanch pursuant to the resolution of the General Body of a Gram Panchayat is appealable before the Sub­Divisional Officer under Section 91 of the Adhiniyam read with Rule 3 (d) of the Rules of 1995."

As such, in the above­stated judgment (supra), it has

clearly been held that order of appointment of

Panchayat Karmi issued by the Sarpanch pursuant to

the resolution of General Body of Gram Panchayat is

appealable under Section 91 of the Adhiniyam 1993

read with Rule 3(d) of the Rules of 1995.

14. Similar view has been taken by this Court in

Smt.Chandrawali v. State of Chhattisgarh & Ors. 3 in

which it has been held as under:­

"7. A resolution of a Gram Panchayat/Gram Sabha cannot be termed as final order of removal as it is well settled principle of law that the resolution is a mere guidelines. Even, sub­rule (1) of Rule 7 of the Rules, 1999 prescribes for passing an order by the Disciplinary Authority on the basis of the report after considering his representation, if any, made by the person charged in response to the notice. In the case on hand, since no formal order was passed, therefore, keeping the petitioner away from service on the basis of the resolution is vitiated for want of proper statutory order. Thus the petitioner continues on the same post as if he was never removed from the post of Panchayat Karmi."

15. In view of clear pronouncement of the Madhya

Pradesh High Court in Devidayal Raikwar (supra) and

also by this Court in Smt.Chandrawali (supra), I have

3 2010 SCC OnLine Chh 302

no reason to take different view of the matter. Hence,

it is held that order of appointment of Panchayat

Karmi issued by the Sarpanch pursuant to the

resolution of General Body of Gram Panchayat Chanta

would be appealable before the SDO under Section 91 of

the Adhiniyam 1993 read with Rule 3(d) of the Rules of

1995.

16. Strong reliance of para­22(ii) of Abdul Hasan

Qureshi's case (supra) has been placed by Mr.Sudhir

Verma, learned counsel for respondent No.4, in which

the High Court of Madhya Pradesh has clearly held that

resolution of Gram Panchayat merely selecting thereby

a Panchayat Karmi and not appointing thereby would not

amount to an order, but would amount to merely a

proceedings of Gram Panchayat and would not be

appealable as an order under Rule 3. Mr.Verma has also

stressed upon paras­12, 13 and 14 of the judgment

rendered by the Madhya Pradesh High Court in Abdul

Hasan Qureshi's case (supra).

17. In the instant case, pursuant to the resolution

dated 23.9.2007, appointment order was issued by the

Sarpanch of Gram Panchayat Chanta on 24.10.2007, which

ought to have been questioned by respondent No.4, that

has not been done, as such, in the considered opinion

of this Court, since respondent No.4 has only

challenged the resolution dated 23.9.2007 selecting

the petitioner on the post of Panchayat Karmi and

thereafter, order of appointment of the petitioner was

issued by the Sarpanch of Gram Panchayat Chanta on

24.10.2007 appointing the petitioner on the post of

Panchayat Karmi, which has not been challenged and

appeal under Section 91 of the Adhiniyam 1993 read

with Rule 3(d) of the Rules of 1995 was maintainable

against the order of appointment of the petitioner

issued by the Sarpanch of Gram Panchayat Chanta on

24.10.2007, appeal as framed and filed by respondent

No.4 before the SDO only questioning the resolution

dated 23.9.2007 selecting petitioner was not

maintainable and learned SDO has committed grave legal

error in entertaining and granting the appeal, which

was wholly without jurisdiction and without authority

of law and consequently, learned Collector has also

committed illegality in not noticing the

jurisdictional error committed by learned SDO and

directing the appointment of respondent No.4, which

was not his jurisdiction. The fact remains that the

order passed by the SDO is without jurisdiction and

appeal against the resolution dated 23.9.2007

selecting the petitioner on the post of Panchayat

Karmi was not maintainable and learned Collector has

perpetuated the illegality committed by learned SDO.

18. Consequently, the impugned order dated 5.11.2009

(Annexure P7) passed by the Collector, Kabirdham

affirming the order dated 8.4.2009 (Annexure P­6)

passed by the Sub­Divisional Officer (Revenue), Bodla

both are hereby quashed.

19. The writ petition is allowed to the extent

indicated hereinabove. No order as to cost(s).

Sd/-

(Sanjay K.Agrawal) Judge B/-