Prabal Pratap Singh vs The State Of M.P,And Ors.
2022 Latest Caselaw 15635 MP

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        IN THE HIGH COURT OF MADHYA PRADESH
                     AT GWALIOR
                             BEFORE
       HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                  ON THE 28th OF NOVEMBER, 2022

                 WRIT PETITION NO. 3571 OF 2005(S)

     BETWEEN:-

     PRABAL PRATAP SINGH S/O SHRI
     RABINDRA PAL SINGH, AGED 35 YEARS,
     OCCUPATION PANCHAYAT SERVICE,
     TEHSIL AND DISTRICT SHIVPURI
                                                  ........PETITIONERS

     (BY SHRI ARUN DUDAWAT - ADVOCATE)

     AND

1.   THE STATE OF MADHYA PRADESH
     THROUGH      THE     SECRETARY,
     PANCHAYAT       AND       RURAL
     DEVELOPMENT         DEPARTMENT,
     MANTRALAYA,   VALLABH   BHAVAN,
     BHOPAL (MADHYA PRADESH)

2.   THE ADDITIONAL COMMISSIONER,
     GWALIOR DIVISION, MOTI MAHAL,
     GWALIOR

3.   THE COLLECTOR, DISTRICT SHIVPURI

4.   THE CHIEF EXECUTIVE            OFFICER,
     JANPAD    PANCHAYAT,           SHIVPURI
     (MADHYA PRADESH)

5.   GRAM PANCHAYAT, NOHARI KALAN,
     THROUGH ITS SARPANCH, VILLAGE
     NOHARI KALAN, TEHSIL AND DISTRICT
     SHIVPURI.
                                                     ....RESPONDENTS

     (SHRI SUSHANT TIWARI - GOVERNMENT ADVOCATE FOR STATE)
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       This petition coming on for hearing this day, the Court passed the
following:
                                       ORDER

This petition under Article 226 of the Constitution of India has been filed seeking following relief:-

(i) Issuing a suitable Writ of certiorari or Order or Direction thereby quashing the impugned orders dated 29.08.2005 and 2.7.2005 passed by the respondent No. 2 and 3 with further direction to respondents not to interfere with the working of the petitioner as Panchayat Sachiv of Gram Panchayat, Nohari-kalan.

(ii) Passing any other Order or Direction, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

(iii) Cost of the petition may also be awarded to the petitioner.

2. It is submitted by the counsel for the petitioner that the petitioner was working as a Panchayat Karmi of Gram Panchayat, Noharikalan. An amount of Rs.3.18 lacs was sanctioned for renovation of pond under the "Kam Ke Badle Anaj Scheme" and in the sanction order dated 11.03.2005 itself, it was mentioned that use of machinery will be banned. However, on inspection carried out on 16.05.2005, it was found that three tractors were being used for renovation of pond. One tractor was being used for dressing work, another tractor was being used for digging earth and third tractor was found parked near the pond and, thus, it was found that three tractors were being used for renovating the pond which was in clear violation of "Rashtriya Kam Ke Badle Anaj Scheme", whereas the work of renovation of pond was sanctioned only with a solitary intention to

provide employment to the labourers and it was the duty of the petitioner that only labourers should have been employed, but taking advantage of the fact that the Sarpanch was an Adiwasi and an illiterate person, the petitioner misused the government fund and, accordingly, a show cause notice dated 10.06.2005 was issued as to why his powers under Section 69(1) of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam (in short "Adhiniyam") may not be withdrawn. The show cause notice was duly replied by the petitioner by his reply dated 16.06.2005 and it was mentioned that the permission to use the tractors was duly obtained from CMO, Janpad Panchayat, Shivpuri. By order dated 02.07.2005 the Collector, Shivpuri withdrew the powers granted to the petitioner under Section 69(1) of the Adhiniyam.

3. Being aggrieved by the said order, the petitioner preferred an appeal which too was dismissed by order dated 29.08.2005 passed by the Additional Commissioner, Gwalior Division, Gwalior in Case No.323/2004-05/Appeal.

4. Challenging the order dated 02.07.2005 passed by the Collector, Shivpuri in Case No. Panchayat/NFFWP/2005/3843 and the order dated dated 29.08.2005 passed by the Additional Commissioner, Gwalior Division, Gwalior in Case No.323/2004-05/Appeal, it is submitted by the counsel for the petitioner that the order under challenge was passed in utter violation of the circular dated 22.09.2003, by which it was mentioned that before denotifying the Panchayat Secretary, the Collector must ensure that a valid resolution is passed by the concerning Gram Panchayat. In the present case, no resolution was ever passed by the concerning Gram Panchayat to denotify the petitioner.

5. Per contra, the petition is vehemently opposed by the counsel for the State. It is submitted that as per the Scheme of "Kam Ke Badle Anaj" the work was to be done by the labourers because the basic purpose of the Scheme was to provide employment to the labourers and the wages are paid in the form of foodgrains and cash. The work was not to be done by using any machinery. In fact, in the present case, tractor was used for digging pond.

6. So far as the permission sought by the Gram Panchayat to use the machinery is concerned, it was mentioned that vide order dated 27.04.2005 (Annexure P-3), the Chief Executive Officer, Janpad Panchayat, Shivpuri had granted permission for compressing earth work of the boundary (Paar of the Tank). For constructing Paar, the labourers should have been engaged and just for compressing loose earth the tractor was to be used. However, the same was not done and the entire work was being done with the help of machinery.

7. So far as the circular dated 22.09.2003 is concerned, it is submitted by the counsel for the respondents that the said circular is not applicable to the facts and circumstances of the case because the petitioner has not been removed from the post of Panchayat Karmi, but his powers under Section 69(1) of the Adhiniyam have been withdrawn.

8. Heard the learned counsel for the parties.

9. The main ground which has been raised by the counsel for the petitioner is non-compliance of the circular dated 22.09.2003 which reads as under:-

e/; izns'k 'kklu iapk;r ,oa lekt dY;k.k foHkkx ea=ky;

Øekad ,Q 2&[email protected]@[email protected]&1 Hkksiky fnukad 22-09-2003

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i`"Bkadu Øekad ,Q 2&[email protected]@[email protected]&1 Hkksiky fnukad 22-09-2003

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lfpo e/;izn's k 'kklu iapk;r ,oa lekt dY;k.k foHkkx

10. From the plain reading of the circular, it is clear that this circular was made applicable only when a prayer for denotifying the Secretary is made by the Gram Panchayat after removing the concerning Panchayat Karmi from his post. Thus, a guideline was issued to the Collector that before denotifying the Panchayat Secretary, the Collector shall verify that a valid resolution is passed by the Gram Panchayat for removing the Panchayat Karmi from his post, whereas in the present case, the Panchayat Karmi has not been removed from his post and the petitioner is still holding the post of Panchayat Karmi. The Collector had denotified him under Section 69(1) of the Adhiniyam.

11. The Full Bench of this Court in the case of Chandrapal Yadav vs. State of M.P. reported in 2016 (1) MPLJ 685 has held as under:

24. On the basis of above discussion, in our opinion, the nomination of Panchayat Karmi of the Gram Panchayat as Panchayat Secretary, prior to coming into force of the statutory Rules named as Madhya Pradesh Panchayat Service (Gram Panchayat Secretary Recruitment and Conditions of Service) Rules, 2011, was a pleasure appointment. For that reason, the Panchayat Secretary could be de-notified by the State Government or the prescribed Authority in

accordance with the procedure prescribed by the Government in this regard.

25. The learned Deputy Advocate General placed circular issued by the Panchayat and Rural Development Department dated 02.11.2006. It is mentioned in the circular that the State had taken a decision that before removal of Panchayat Secretary the Sub-Divisional Officer shall conduct an inquiry and adopt quasi judicial procedure and he shall afford opportunity of hearing to the concerned persons and thereafter, he shall take appropriate decision and the action be taken against the Panchayat Secretary in accordance with the decision taken by the Sub- Divisional Officer (Revenue).

26. We answer the reference in affirmative by holding that the case of Lalla Prasad Burman vs State of M.P. and others, reported in 2008 (3) M.P.L.J. 394 does not expound the correct law - to the extent of applicability of Rules of 1999 in regard to Panchayat Karmi nominated as Panchayat Secretary prior to coming into force of the Rules of 2011. However, after introduction of the circular dated 02.11.2006, action against the Panchayat Secretary nominated prior to coming into force of Rules of 2011, was required to be taken in accordance with the said circular issued by the Department.

12. In the present case the petitioner was notified as Panchayat Secretary much prior to 2005 and he was de-notified by order dated 02.07.2005. The substantive post of the petitioner is Panchayat Karmi and he was authorized to discharge the duty of Secretary by notifying him under Section 69(1) of the Adhiniyam.

13. In the light of the judgment passed in the case of Chandrapal Yadav (supra), this Court is of the considered opinion that no procedural flaw could be pointed out by the counsel for the petitioner. At the

relevant time, the conferment of right of the Panchayat Secretary was a pleasure appointment and at the relevant time no procedure was prescribed by the Government in this regard because the circular dated 02.11.2006 came into existence after the de-notification of the petitioner.

14. Since the petitioner was being stripped of his powers under Section 69(1) of the Adhiniyam, therefore, it was necessary to follow the principal of natural justice which was done in the present case.

15. Accordingly, no case is made out warranting interference in this petition.

16. The petition fails and is hereby dismissed. The interim order granted on 09.09.2005 is hereby vacated.

17. No order as to costs.

(G.S. AHLUWALIA) JUDGE Abhi Digitally signed by ABHISHEK CHATURVEDI Date: 2022.11.29 18:34:05 +05'30'