iH mCH COURT OF CHHATTISGARH AT BDLASPUR |i*A^- PETmONER RESPONDENTS WritPetitionNo, 1025 of 2003 Hari Prasad Nishad S/o Asharam, aged about 34 years occupation Panchayat Karmi, Gram Chfiotepatni, Tehsil Basna, DistrictMahasamund (CG). VERSUS l.The State of Chhattisgarh, Through the Secretary Department of Panchayat, Mantralaya, DKS Building, Raipur(CG). 2.-The Collector, Mahasamund, . Tehsil and District Mahasamund (CG). 3. The Sub Divisional Officer Saraipali, Tehsil Basna, District Mahasamund(CG). 4. Sarpanch, Gram Pahchayat Chhotepatni, Tehsil Basna, District Mahasamund. (WRIT PETITION UNDER ARTICLE226/227 OF THE CONSTITUTION OF INDIA) (SB: Hon'ble Mr. Satish K. Aenihotri. J.) Present : ShriR.S.Patel/Advocateforthepetitioner. ; Shri Alok Bakhshi, Govt. Advocate for the State/respondent No. 1 to 3. Shri Roop Naik, Advocate for the respondent No. 4. ORAL ORDER (Passed &n 04th ofApril, 2008) 1. With the consent ofthe leamed counsel appearing for the parties, the matter is taken up for hearing fmally. 2. The petitioner was appointed as Panchayat Karmi (Secretary) by order dated 10.11.95 (Annexure P/2) in Gram Panchayat Chhotepatni, District Mahasamund (CG). The petitioner, thereafter, continued to work as Panchayat Karmi till Gram Sabha, Chhotepatni, by its resolution dated 14.06.2000, removed the petitioner fi-om the post ofPanchayat Karmi (Secretary). No substantive order of removal was passed against the !. petitioner. However, according the leamed counsel appearmg fortU^ petitioner, the petitioner was not allowed to work on the postiioij' Panchayat Karmi (Secretary) on the sfrength ofTesolutionpassedbyiffiel Gram Sabha, whichis hot enfbreeableinlaw. 1 ; i l^ •S 1 i'l Rl B!: Bt ]iE- <S:;i :::il: f./ ,/yv\ /tf"'"^ ^ \. ^^/ U 3. Feeling aggrieved, the petitioner preferred an appeal before the Sub Divisional Officer (for short, 'SDO'), Saraipali, Disto-ict Mahasamund (CG). The SDO, by order dated 26.07.2000, stayed the proceedings of resolution of Gram Sabha dated 14.06.2000. Finally, after hearing, the SDO, Saraipali, holding that the resolution, removing the petitioner, was contrary to well established principle of law, allowed the appeal on 05.12.2001 (Annexure P/5). Accordingly, the order was passed by the Chief Executive Officer, Janpad Panchayat, Basna, Distt. Mahasamund on 24.12.2001 to continue the petitioner as Panchayat Kanni (Secretary). 4. The respondent No. 4, being .aggrieved by the order dated 05.12.2001 (Annexure P/5) passed by the SDO, preferred a revision being Panchayat Revision No. 8/A-89/01-02 before the Collector, Mahasamund. The Collector, Mahasamund, after hearing bofh the parties, came to conclusion that no appeal or revision was maintainable against the resolution passed by the Gram Panchayat or Gram Sabha. It was further observed by the Collector that under Article 243 (®)and 243 ^(i), Gram Sabha does not come within the parameters of Panchayat, accordingly, the entire exercise and the order passed by the SDO was quashed on 30.03.2002 (Annexure P/l). 5. I have heard leamed counsel for the appearing parties, perused the pleadings and documents appended thereto. It is admitted by the leamed counsel for the parties that no formal order removing the petitioner from the post of Panchayat Karmi (Secretary), was passed on the basis of resolution dated 14.06.2000. The SDO, in his order dated 05.12.2001 (Annexure P/5) rightly held that the order of removal of the petitioner was contrary to the provisions of Rule 7 of Chhattisgarh Panchayat Service (Discipline and Appeal) Rules, 1999 (for short 'the rules, 1999') ^/^"^ \ ;' '"a^c- i. 1 *^ 1 and quashed the resolution passed by the Gram Sabha. The Collector, Mahasamund, held that the Collector has no jurisdiction to entertain the revision while holding that the SDO has no jurisdiction. The Collector, after having decided that the revision is not maintainable before the Collector, proceeded to decide the case on merit also and set aside the entire exercise including the order dated 05.12.2001 passed by the SDO. Thus, the impugned order passed by the Collector is beyond jurisdiction of the Collector particularly when the Collector has held that revision was not maintainable before him. It is true that fhe resolution of the Gram Sabha was neither enforceable nor appealable. However, in view of the facts of the case while holding that the resolution is not enforceable, the SDO has exercised his power and passed the order. Therefore, the order dated 05.12.2001 passed by the SDO is just and proper. 6. It is trite that the resolution or a decision in a meeting is not the order which can be given effect to. There should be proper order pursuant to the resolution for appointment to the post of Panchayat Karmi (Secretary). The Panchayat & Rural Development Department, Govemment of Chhattisgarh, vide its circular No. VW/W. /^Tf^/2006/230 ^rey ft-11"* 16.03.2006 has clarified that after resolution of Gram Panchayat and Gram Sabha to appoint Panchayat Karmi, the Sarpanch has to pass an appropriate appointment order for appointment of Panchayat Karmi. It is further stated that in case of removal from the post of Panchayat Karmi (Secretary) also, after resolution of Gram Sabha, the order of removal is to be passed by the Gram Panchayat. Thus, it is clear that no removal can be given without issuing proper removal order. >ilt:'fcl~"-^"iau-JI-l'"ls' 7. Admittedly, the Gram Panchayat, before passing the impugned termination order has not complied with the provisions of Rule 7 of the Rules, 1999. This Court in Dhaluram Kosaria Vs. State of C.G. & Others , Beegan Ram Vs. State of C.G. & others and Prakash Chand Soni Vs. State ofC.G. & others has held that the non compliance ofthe statutory provisions and denial of principles of natural justice tantamounts to infraction of not only the provisions of Rule 7 of the Rules, 1999 but the provisions ofArticle 311 (2) ofthe Constitution of India also. The order ofremoval being penal in nature, visiting wifh civil (evil) consequences, cannot be passed without holding the enquiry in accordance with the elaborate provisions, as prescribed in Rule 7 of the Rules, 1999. 8. In view of the clear provisions of law, the impugned order dated 30.03.2002 passed by the Collector is set aside and order dated 05.12.2001 (Annexure P/5) passed by the SDO is maintained. The petition is allowed and the petitioner be permitted to work as Panchayat Karmi (Secretary). The petitioner is further entitled to all the benefits flowing from this order since there was no proper termination order against the petitioner. No order asto costs. Sd/-. Satish K. Agnihotri Judge