IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 25TH NOVEMBER 2009 / 4TH AGRAHAYANA 1931 WP(C).No. 28556 of 2009(L) -------------------------- PETITIONER(S): --------------- A.K.SULTHAN, SPECIAL GRADE SECRETARY, ELAPPULLY GRAMA PANCHAYATH, PALAKKAD DISTRICT. BY ADV. SRI.S.MUHAMMED HANEEFF RESPONDENT(S): --------------- 1. DIRECTOR OF PANCHAYATHS, THIRUVANANTHAPURAM. 2. DEPUTY DIRECTOR OF PANCHAYATHS, PALAKKAD. 3. STATE OF KERALA, REP. BY ITS SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 4. ELAPPULLY GRAMA PANCHAYATH COUNCIL, REP. BY ITS PRESIDENT, ELAPPULLY P.O., PALAKKAD DISTRICT. 5. Y.M.ABOOBACKER, SPECIAL GRADE SECRETARY, PARALI GRAMA PANCHAYATH, PALAKKAD DISTRICT. ADV. SRI.P.K.MOHANAN(PALAKKAD) FOR R4 MS.ANU SIVARAMAN, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.28556 of 2009 --------------------------------- Dated, this the 25th day of November, 2009 J U D G M E N T The petitioner is working as Secretary of the Elappully Grama Panchayat. The Panchayat passed a resolution dated 12/08/2009 recommending to transfer the petitioner from the Panchayat, and that was forwarded to the Deputy Director. The Deputy Director rejected the same by Ext.R4(d) dated 23/09/2009 pointing out that the resolution was passed in contravention of the provisions contained under Section 179(4) of the Panchayat Raj Act. However, before Ext.R4(d), the Panchayat passed yet another resolution dated 09/09/2009, a copy of which is Ext.P1. By this resolution, the Panchayat reiterated its earlier resolution for the transfer of the petitioner. Accepting Ext.P1 resolution and without verifying whether Section 179(4) of the Act has complied with, the Director of Panchayat issued Ext.P2 dated 05/10/2009 transferring the petitioner to Parali Grama Panchayat. It is challenging Ext.P2, this writ petition is filed. 2. At the stage of admission, by order dated 09/10/2009, WP(C) No.28556/2009 -2- this Court granted an order requiring the authorities to maintain status quo and it is stated that on that basis, the petitioner is still continuing at Elappully Grama Panchayat. 3. A counter affidavit has been filed by the Panchayat justifying the resolution it has passed. 4. However, the contention raised by the learned counsel for the petitioner is that in view of Section 179(4) read with the proviso therein, a resolution in the nature of Ext.P1 could not have been passed by the Panchayat without giving an opportunity to the petitioner to make his representation before the Panchayat or its President, and without hearing him. In this case, nothing has been placed on record by the Panchayat to show that before passing Ext.P1 resolution, the petitioner was given an opportunity as provided in the proviso to the Section referred to above. For that reason, I am inclined to think that both Exts.P1 & P2 orders regarding the transfer of the petitioner, are illegal. Therefore, this writ petition is disposed of quashing Exts.P1 & P2 to the extent it transfers the petitioner and the 5th respondent. However, it is clarified that this judgment will not stand in the way WP(C) No.28556/2009 -3- of the Panchayat in passing a fresh resolution complying with the statutory provisions, if it is appropriate to do so. This writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg