Madhya Pradesh High Court
Narendra Kumar Gautam vs The State Of Madhya Pradesh on 13 June, 2023
Author: Anand Pathak
1
IN THE HIGH COURT OF MADHYA PRADESH
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
WRIT PETITION NO.6639 OF 2020
BETWEEN:-
NARENDRA KUMAR GAUTAM, AGED ABOUT 51
YEARS, S/O- KAMLA PRASAD GAUTAM, OCCUPATION-
UNEMPLOYED, R/O- GRAM GORAIYA, POLICE
STATION- BADERA, TAHSIL - MAIHAR, DISTRICT
SATNA (MADHYRA PRADESH
..... PETITIONER
(BY SHRI VINOD KUMAR MISHRA - ADVOCATE)
AND
1 STATE OF MADHYA PRADESH, THROUGH
SECRETYARY, DEPARTMENT OF PANCHAYAT AND
RURAL DEVELOPMENT, MANTRALAYA, VALLABH
BHAWAN, BHOPAL (MADHYA PRADESH)
2
COMMISSIONER, REWA DIVISION, REWA
(MADHYA PRADESH)
COLLECTOR, SATNA,
3
DISTRICT SATNA, (MADHYA PRADESH)
4
SUB-DIVISIONAL OFFICER, MAIHAR, DISRICT
SATNA (MADHYA PRADESH)
5
CHIEF EXECUTIVE OFFICER, ZILA PANCHAYAT,
DISTRICT SATNA (MADHYA PRADESH)
2
6 CHIEF EXECUTIVE OFFICER, JANPAD
PANCHAYAT, MAIHAR, DISTRICT SATNA (MADHYA
PRADESH)
DEVKARAN PATHAK, AGED ABOUT 46 YEARS, S/O-
7
LATE RAMKRIPAL PATHAK, R/O- VILLAGE
GORAIYA, TAHSIL MAIHAR, DISTRICT SATNA
(MADHYA PRADESH)
8 SARPANCH, GRAM PANCHAYAT GORAIYA, VIKAS
KHAND MAIHAR, DISTRICT SATNA (MADHYA
PRADESH)
9 SECRETARY, GRAM PANCHAYAT GORAIYA, VIKAS
KHAND MAIHAR, DISTRICT SATNA (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI ANSHUMAN SWAMY - PANEL LAWYER)
(BY SHRI SANJAY SARWATE - ADVOCATE FOR RESPONDENT NO.7)
Reserved on : 31/01/2023
Pronounced on : 13/06/2023
This petition having been heard and reserved for order coming on
for pronouncement this day, this Court passed the following:
ORDER
With consent heard finally.
The present petition under Article 226 of the Constitution has
been preferred by the petitioner seeking following reliefs:-
(i) This Hon'ble Court may kindly be pleased to
call for the entire record pertaining to instant
subject matter for its kind perusal.
(ii) This Hon'ble Court may kindly be pleased to
issue a writ in the nature of certiorari
quashing the impugned order dated 11.06.2019
passed by Secretrary, Panchayat and Rural
Development Department.
(iii) This Hon'ble Court may kindly be pleased to
issue a writ in the nature of mandamus
directing respondents to appoint the petitioner
as Panchayat Karmi.
(iv) This Hon'ble Court may kindly be pleased to
issue a writ in the nature of mandamus
directing the respondents not to allow and
continue the respondent No.7 as Panchayat
Karmi as his very appointment is hit by
Section 69 of the Madhya Pradesh Panchayat
Raj Evam Gram Swaraj Adhiniyam, 1993 and
hold that respondent No.7 is ineligible to the
appointed."
2. Precisely stated facts of the case are that Gram Panchayat
Goraiya Block Maihar, District Satna issued an advertisement for
appointment on the post of Panchayat Karmi in the said Gram
Panchayat and in response thereof, total 12 candidates including the
petitioner and respondent No.7 submitted their applications. At the
relevant point of time, circular dated 27.01.2006 issued by the
Panchayat and Rural Development Department, Government of
Madhya Pradesh was in vogue. On the basis of majority of votes,
respondent No.7 was selected and accordingly, order of appointment of
Panchayat Karmi was issued on 17.07.2007 in favour of respondent
No.7.
3. Petitioner challenged the aforesaid order before the concerned
Sub-Divisional Officer who, vide order dated 30.11.2007 (Annexure
P/6), set aside the appointment order of respondent No.7 on the ground
that procedure provided for appointment of Panchayat Karmi as per
circular dated 27.01.2006 (Annexure P/10) was not followed and
neither select list as per merit was prepared nor said list was sent to the
Collector for approval. Sub-Divisional Officer remanded the matter
back to the Gram Panchayat with a direction to make an appointment
in accordance with the procedure prescribed.
4. Respondent No.7 being aggrieved by the order of Sub-Divisional
Officer dated 30.11.2007 filed revision before the Additional
Commissioner, Rewa and vide order dated 03.02.2011 (Annexure P/9),
Additional Commissioner set aside the order of Sub-Divisional Officer
on the ground that same is contrary to the circular dated 13.08.2007
and found the appointment of respondent No.7 as valid. Petitioner
challenged the said order dated 03.02.2011 by way of Writ Petition
No.3144/2011(S) before this Court and vide order dated 28.02.2013,
this Court allowed the writ petition and quashed the order dated
03.02.2011 passed by the Additional Commissioner, Rewa on the
ground that as per judgment of Division Bench of this Court in the case
of Suresh Vs. Chief Executive Officer, Zila Panchayat, Badwani
reported 2012 (1) MPHT 74 and as per scheme of appointment of
Panchayat Karmi, the merit was required to be observed (rather than
majority of votes), even as per circular dated 27.01.2006 which was in
vogue. Respondent No.7 preferred Writ Appeal vide No.373/2013, but
the same got dismissed vide order dated 17.06.2023 and order of writ
court became final.
5. As per directions passed in writ petition and in compliance of the
order of Sub-Divisional Officer, Chief Executive Officer, Janpad
Panchayat Maihar vide letter dated 30.07.2013 directed the Gram
Panchayat Goraiya to initiate the proceedings for appointment of
Panchayat Karmi. Gram Panchayat initiated the selection process and
after considering the requisite qualification mentioned in the circular
dated 27.01.2006 and found the respondent No.7 meritorious vis-à-vis
other participating candidates because he scored highest marks in Class
10th (10+2 pattern). Gram Panchayat prepared the merit list of the
candidates in which respondent No.7 stood at serial No.1 and the
petitioner stood at serial No.3 and thereafter, issued order of the
appointment of Panchayat Karmi in favour of the respondent No.7
(Annexures R-7/6 and R-7/7)
6. Gram Panchayat, Goraiya also issued letter to the Chief
Executive Officer, Janpad Panchayat, Maihar informing about
appointment of respondent No.7 as Panchayat Karmi and requested for
notification of respondent No.7 as Panchayat Secretary.
7. As per appointment order issued by the Gram Panchayat,
respondent No.7 gave his joining on 05.08.2013 in the office of Gram
Panchayat. On the proposal of Chief Executive Officer, Janpad
Panchayat, Maihar, the Callector, Satna vide order dated 29.08.2013
(Annexure P/14) notified the respondent No.7 as Panchayat Secretary
of Gram Panchayat Goraiya.
8. Petitioner again challenged the order of appointment of
respondent No.7 by way of Writ Petition No.1960/2014 before this
Court and vide order dated 23.03.2017 (Annexure P/15), but this Court
granted liberty to the petitioner to challenge the order before the
competent authority by filing an appeal.
9. Thereafter, petitioner preferred an appeal before the Additional
Commissioner, Rewa and the said authority vide order dated
31.01.2019 (Annexure P/16) allowed the appeal of the petitioner on the
ground that Gram Panchayat has not followed the order of Sub-
Divisional Officer in its true spirit and accordingly the appointment of
the respondent No.7 for the post of Panchayat Karmi (and Panchayat
Secretary) was set aside. Resultantly, Commissioner remanded the
matter with the direction to comply with the order dated 30.11.2007.
10. Respondent No.7, being dissatisfied by the order of Additional
Commissioner dated 31.01.2019 filed the revision before the Ministry
of State and same was decided by the Principal Secretary, Panchayat
and Rural Development Department vide order dated 11.06.2019
(Annexure P/18), whereby the revision preferred by the respondent
No.7 was allowed and the order dated 31.01.2019 was set aside.
Therefore, petitioner is before this Court challenging the order dated
11.06.2019 passed by the Principal Secretary in revisional jurisdiction.
11. It is the submission of learned counsel for the petitioner that
petitioner scored 44.25% marks in Class 10th and the respondent No.7
also scored 44.25% marks in Class 12 th, therefore, both the persons
have scored same marks then approach of authority to appoint
respondent No.7 was erroneous. It is submitted that as per circular
dated 27.01.2006, petitioner was more meritorious then respondent
No.7, still because of malafide he was denied the opportunity to serve
the concerned Gram Panchayat. It is further submitted that at the time
of appointment, wife of respondent No.7 was working as Sarpanch,
therefore, as per Section 69 of the Madhya Pradesh Panchayat Raj
Evam Gram Swaraj Adhiniyam 1993 (hereinafter referred as
'Adhiniyam'), respondent No.7 was not entitled to be appointed. He
supported the impugned order dated 31.01.2019.
12. Per contra, learned counsel for the respondent No.7 opposed the
prayer. Respondent No.7 in its reply refers the fact that as per circular
dated 27.01.2006, minimum qualification prescribed is Class 10 th/High
School Certificate under 10+2 Education System. Applications are to
be decided on the basis of seniority and merit. After judgment of
Division Bench of this Court in the case of Suresh (supra) merit is to
be seen.
13. Petitioner passed Class 10th whereas respondent No.7 passed
Class 12th examination also. He may have scored 44.25% marks in
Class 12th but in Class 10th he scored 45.23 marks whereas petitioner
has scored 44.25 in Class 10th and since as per circular dated
27.01.2006, qualification to be considered for appointment is of Class
10th, therefore, respondent No.7 stood over and above the petitioner
and petitioner was standing at serial No.3 in the merit list.
14. Therefore, petitioner is to be considered more meritorious and as
per the mandate of Division Bench of this Court in the case of Suresh
(supra) criteria was merit, therefore, respondent No.7 was legally
entitled to get the appointment as Panchayat Karmi. No illegality has
been caused.
15. So far as the allegation of wife of respondent No.7 as Sarpanch is
concerned, his wife Smt. Meena Pathak was elected as Panch and
thereafter she resigned on 18.07.2007. Further, in the election of year
2010, brother of the respondent No.7 was elected as Panch and he also
resigned on 23.07.2013 and Gram Panchayat accepted his resignation
on 28.07.2013 in its resolution. Therefore, at the time of appointment,
respondent No.7 was not having any relative in the concerned Gram
Panchayat as Panch. No relative of respondent No.7 as office bearer of
the concerned Gram Panchayat was working at the time of taking
charge of Secretary of Gram Panchayat. Hence, on this count also, case
of the petitioner lacks merit. Therefore, respondents prayed for
dismissal of this petition.
16. Heard the learned counsel for the parties and perused the
documents appended thereto.
17. In the case in hand, petitioner has raised the point regarding
comparative merit of petitioner and respondent No.7. On close
scrutiny, it appears that out of the merit list, petitioner stood at serial
No.3. Circular dated 27.01.2006 stipulates minimum qualification as
Class 10th, therefore, qualification of respondent No.7 about his
performance in Class 12th cannot be taken into consideration because
then it would creating an anamolous situation where assessment of two
different certificates (Class 10th and Class 12th) would be considered for
appointment and that is not the spirit of circular dated 27.01.2006.
Therefore, performance of all candidates in Class 10 th was taken into
consideration and rightly so. In Class 10 th, petitioner scored 44.25%
marks whereas respondent No.7 scored 45.23.% marks, therefore,
performance of respondent No.7 was over and above the petitioner.
Even otherwise, petitioner stood at serial No.3 in the merit list.
Therefore, even if appointment of respondent No.7 would have been
disturbed even then petitioner was not going to get the benefit of this
litigation, prima facie.
18. So far as family members as office bearer of concerned Gram
Panchayat are concerned, they resigned at the time when respondent
No.7 held the charge. They resigned much prior to decision being taken
and appointment being made of respondent No.7. In Section 69 of the
Adhiniyam 1993 the words "holding the charge" is referred and not the
appointment, therefore, at the relevant point of time, no relative as per
Section 69 of the Adhiniyam 1993 was available to manipulate the
proceedings. Therefore, on this count also case of the petitioner does
not hold substantial grounds. The instant case is one of the many cases
fought between the parties since 2007, therefore, litigations somewhere
must come to an end.
19. Here, in the facts and circumstances of the case, it appears that
respondent No.7 is more meritorious as per mark-sheet of Class 10 th
then the petitioner, therefore, as per the mandate of Division Bench of
this Court in the case of Suresh (supra), merit is required to be
adhered too. Therefore, authorities below have not caused any
illegality and arbitrariness.
20. Accordingly, petition sans merit and is hereby dismissed.
(ANAND PATHAK)
JUDGE
Rashid
RASHID
Digitally signed by RASHID KHAN
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH
GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH
GWALIOR, postalCode=474001, st=Madhya Pradesh,
2.5.4.20=23377d7d214c811801fc322b576ca4ed1954237f6324416
KHAN
af3985b5e9940ed42,
pseudonym=D0D045404B6F6AB1225B3600B86B72153386BADD,
serialNumber=111CC474A72B078DC9A89F3CB13BB668FD8E0E91
BEDA3CB721BBD836D768B09C, cn=RASHID KHAN
Date: 2023.06.13 19:51:55 +05'30'
