IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE SEVENTEENTH DAY OF SEPTEMBER TWO THOUSAND AND NINE PRESENT: HON'BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.13886 OF 2009 Between: A. Jagan Reddy, S/o. Lakshma Reddy ..... Petitioner AND The Government of Andhra Pradesh, Panchayat Raj & Rural Development, Rep. by its Principal Secretary and 3 others .....Respondents AND WRIT PETITION No.19965 OF 2009 Between: Pasala Jesenthamma, W/o. Balaswamy & another ..... Petitioners AND The Government of Andhra Pradesh, Panchayat Raj & Rural Development, Rep. by its Principal Secretary and 4 others .....Respondents HONOURABLE SRI JUSTICE P.S. NARAYANA WRIT PETITION Nos.13886 AND 19965 OF 2009 COMMON ORDER: Heard Sri Challa Dhanamjaya, the learned counsel representing the writ petitioner A. Jagan Reddy (Upa-Sarpanch) in W.P. No.13886 of 2009, Sri Kalva Suresh Kumar Reddy, the learned counsel representing the writ petitioners Pasala Jesenthamma and Gopu Velangani Mary in W.P. No.19965 of 2009, the learned Assistant Government Pleader for Panchayat Raj and Sri Srinivas representing Sri G. Shivakumar Goud, the learned counsel for respondent No.4 Smt. K. Renuka (Sarpanch) in W.P. No.13886 of 2009 and respondent No.5 in W.P. No.19965 of 2009. 2. For the sake of convenience, the writ petitioner A. Jagan Reddy, Upa-Sarpanch of Goudavelly village, in W.P. No.13886 of 2009 and respondent No.4 (who is also respondent No.5 in W.P. No.19965 of 2009) Smt. K. Renuka, Sarpanch of the Goudavelly village, in W.P. No.13886 of 2009 and the Ward Members Pasala Jesenthamma and Gopu Velangani Mary, who are the writ petitioners in W.P. No.19965 of 2009, are hereinafter referred to as Upa-Sarpanch, Sarpanch and Ward Members respectively. 3. W.V.M.P. No.2279 of 2009 is filed by the Sarpanch to vacate the interim order dated 13-07-2009 made in W.P.M.P. No.18152 of 2009 in W.P. No.13886 of 2009 and for such other suitable orders. When the vacate stay application is coming up for hearing, the learned counsel on record made a request for final disposal of the writ petition. Hence, the writ petition is being disposed of finally. 4. It is also pointed out that yet another writ petition, W.P. No.19965 of 2009, is filed by the Ward Members, Pasala Jesenthamma and Gopu Velangani Mary, of the Gram Panchayat praying for a direction declaring the action of respondent No.4, the Mandal Parishad Development Officer, Medchal, Ranga Reddy District in not initiating action in pursuance of the orders bearing No.3930/2007-B2(PAN) dated 20-06-2009 as arbitrary, violative of principles of natural justice and in violation of Articles 14 and 21 of the Constitution of India and consequently direct respondent No.4 to recover the amounts from the Sarpanch (respondent No.5) forthwith and pass such other suitable orders. 5. In the light of the commonality involved in both the writ petitions, they are being disposed of by this common order. 6. W.P. No.19965 of 2009 is coming for admission today and the learned Assistant Government Pleader for Panchayat Raj had taken notice on behalf of respondent Nos.1 to 3, Sri Elisha had taken notice on behalf of respondent No.4 and Sri Srinivas representing the learned counsel Sri Shivakumar Goud had taken notice on behalf of the Sarpanch, respondent No.5. 7. Upa-Sarpanch of Goudavelly Village filed W.P. No.13886 of 2009 praying for a Writ of Mandamus to declare the action of respondent No.2 in issuing the proceedings No.3930/2007/B3 (pts) dated 02-07-2009 directing him to handover the charge to the Sarpanch as Sarpanch of Goudavelly Village, Medchal Mandal, basing on the stay order dated 24-06-2009 as null and void and for a consequential order to set aside that order of respondent No.2 and pass any other suitable orders. 8. It is stated that the Jagan Reddy was elected as Upa- Sarpanch and Renuka was elected as Sarpanch of Goudavelly Village. He has been functioning as Upa-Sarpanch and discharging his duties. It is also stated that Upa-Sarpanch has been functioning as Sarpanch of the village as there were so many irregularities committed by the Sarpanch. Respondent No.3, the District Panchayat Raj Officer, issued proceedings suspending the Sarpnach from the post of Sarpanch on 04-01-2008. Upa-Sarpanch gave a complaint against the Sarpanch on 01-09- 2008. It is also stated that the Sarpanch had misappropriated certain amounts. It is also stated that pursuant to the order dated 20-06-2009 made by respondent No.2, Sarpanch was removed immediately from the post of Sarpanch and the Upa-Sarpanch was directed to take charge of Sarpanch being Upa-Sarpanch to conduct functions of the Sarpanch. Further, it is stated that he sent a letter to the E.O. of the Mandal Parishath of Medchal Mandal marking a copy to respondent Nos.2 and 3 intimating that he assumed the charge of Sarpanch. 9. Further it is stated that the Upa-Sarpanch had assumed the charge of Sarpanch on the same day from the Village Administrative Officer, Panchayat Secretary and in turn the Panchayat Secretary sent a letter to the Mandal Extension Officer. Further, it is stated that the Sarpanch, aggrieved of the order of respondent No.2, had filed an appeal before respondent No.1 and in the said appeal, stay had been granted on 20-06-2009 vide Memo No.12092/PTS.II.A/2009-1 dated 24-06-2009. 10. The specific case of the Upa-Sarpanch appears to be that since even by the date of granting interim stay, inasmuch as, he had taken charge of Sarpanch, the consequential order made cannot be sustained and accordingly writ petition i.e. W.P. No.13886 of 2009 had been filed and this Court while issuing rule nisi on 13-07-2009, granted interim suspension vide W.P.M.P. No.18152 of 2009. No doubt, it is stated that subsequent to the granting of interim suspension by this Court, yet another proceeding had also been issued by the District Collector concerned and it is needless to say that it is only a consequential proceeding. 11. In the vacate stay application in W.V.M.P. No.2279 of 2009 filed by the Sarpanch, averments in detail had been made. It is stated that the impugned order of removal vide proceedings dated 20-06- 2009 bearing No.3930/2007-B2 passed by respondent No.2 was challenged by the Sarpanch by way of appeal before respondent No.1 and by order dated 24-06-2009 in Memo No.12092/PTS.II-A/2009-1, the order of removal passed by respondent No.2 was stayed until further orders. Respondent No.1 passed the stay order by exercising discretionary powers as provided under Section 249(7) of the Panchayat Raj Act, 1994 (for short “the Act”). The statutory remedy of appeal is provided under Section 249(7) of the Act and the validity or otherwise of the order of removal dated 20-06-2009 would be decided in the statutory appeal. It may be true that the Upa-Sarpanch was directed to take charge of Sarpanch as evident from the proceedings dated 22-06-2009. However, that does not give any vested right to the Upa-Sarpanch to continue in the post of Sarpanch. The Upa-Sarpanch will continue in the post only if the order passed by the District Collector attains finality. In the event, the order is set aside, the present Sarpanch is entitled to be restored back to the office of the Sarpanch. Even assuming that the Upa-Sarpanch had assumed the charge as in-charge Sarpanch in view of removal of the Sarpanch and prior to passing of the stay order, since the order of removal is stayed the act of the Upa-Sarpanch taking charge being consequential, also is deemed to had been stayed. The contention of the Upa-Sarpanch that since he had taken over the charge on 20-06-2009 and that the stay order was passed on 24-06-2009, the stay order has become infructuous to the extent of taking charge by him, are all baseless and untenable. 12. It is also stated that the order of stay once granted would stall all proceedings pursuant to the impugned order. In effect, the impugned order of removal passed by respondent No.2 cannot be given effect to. In the given facts and circumstances, it does not make any difference whether the impugned order of removal is stayed or suspended. What is paramount is the manner in which the interim application seeking stay is understood. Respondent No.1 being the appellate authority having understood the purport, stayed operation of the impugned order of removal passed by respondent No.2. The position of an Upa-Sarpanch acting as an in-charge Sarpanch in view of removal of the Sarpanch, cannot be equated to that of right over an immovable property. By natural corollary, the stay would date back to the date of the impugned order, and consequential proceedings also would have the effect of being stayed. May be the Upa-Sarpanch might have conducted proceedings and might have presided over the meetings of Grama Panchayat. The statute enables the Upa- Sarpanch, as being Upa-Sarpanch, to be appointed as an in-charge Sarpanch only during the absence/removal of the Sarpanch. So by taking charge as in- charge Sarpanch and conducting proceedings would not in any manner give any vested right to the Upa-Sarpanch to continue as in- charge Sarpanch. Sarpanch is the elected Sarpanch and she has got appeal remedy under the Panchayat Raj Act and she has preferred regular appeal challenging the order of removal having found that there is prima facie case for staying the operation of the impugned order, the discretionary power was exercised by respondent No.1 and stay order was passed. 13. It is further stated that the Upa-Sarpanch does not have any locus standi to file the writ petition as he is in no manner an effected party. Sarpanch was not served with any copy of the caveat filed by the Upa-Sarpanch. In any case the Upa-Sarpanch was not a party to the proceedings of the Sarpanch and even if any caveat is filed, there was no necessity for the Sarpanch to serve a copy of the appeal and stay petition on him. Sarpanch had raised several grounds assailing the order of her removal. Almost all the decisions under the impugned charges framed against respondent No.4 are taken pursuant to collective decision of the Grama Panchayat members including the Upa-Sarpanch. Sarpanch had got a prima facie case and balance of convenience in her favour for grant of stay and the appellate authority i.e. respondent No.1 herein has rightly exercised its discretionary powers and stayed the impugned proceedings. Since remedy of appeal is provided and the same was availed by the Sarpanch, it is just and reasonable to continue the stay of order of her removal pending final hearing in the appeal. The alleged magnitude of the misappropriation and other connected issues is the subject matter of the appeal. As admitted by the Upa-Sarpanch, cheques if any drawn by the Sarpanch shall be counter-signed by the Mandal Development Officer and the said arrangement sub-serves the interest of the village pending appeal proceedings. In any event, the Upa-Sarpanch cannot challenge the stay order passed by respondent No.1 as he does not have any statutory right or right of any other nature to be enforced. After the stay order dated 24-06-2009 was passed, Sarpanch handed over charge to the Upa-Sarpanch on 02-07-2009 under proceedings dated 02-07-2009 bearing No.3930/2007(Pts) passed by respondent No.2. In the circumstances, if the interim order is not vacated, Sarpanch would suffer irreparable loss and injury. 14. The above respective stands are taken by the parties. 15. As can be seen from the questions on hand, it is not in serious controversy that the order of removal had been challenged by the Sarpanch by way of statutory appeal before the Government and it is also not in controversy that the Government had granted stay. When an order of stay had been made, the same has to be implemented. When a further direction was made by the District Collector to handover charge to the Sarpanch, the said consequential order has been challenged and interim suspension has been obtained by the Upa-Sarpanch. 16. In the circumstances, this Court is of the considered opinion that this course adopted by the Upa-Sarpanch is impermissible and the same cannot be sustained. When the Government had granted stay of the order of removal of the Sarpanch and when the District Collector had issued an appropriate direction to handover charge to the Sarpanch in purusnace of the order made by the Government, till the order is in force and till the statutory appeal is decided by the appropriate competent authority i.e. the Government, present Sarpanch K. Renuka be permitted to be continued as Sarpanch in the said office. This is the only interpretation that can be given. When that being so, the Upa-Sapranch had approached this Court by filing this writ petition i.e. W.P. No.13886 of 2009 and obtained interim suspension. Hence, the said interim suspension cannot be sustained. The writ petition is devoid of merit and the same shall, accordingly, stand dismissed. No order as to costs. 17. However, it is made clear that to the present Sarpanch, who had obtained an order of stay from the Government, be given charge till an appropriate further order is passed by the Government in this regard or till the statutory appeal is disposed of on merits. 18. In the light of the facts and circumstances, the Government shall dispose of the statutory appeal itself within a period of eight (8) weeks from the date of receipt of this order. 19. The other writ petition, W.P. No.19965 of 2009, is filed by the Ward Members of the Grama Panchayat praying for initiation of action in pursuance of the orders bearing No.3930/2007-B2(PAN) dated 20- 06-2009. It is needless to say that since the statutory appeal is pending before the Government, liberty is given to the Ward Members, Pasala Jesenthamma and Gopu Velangani Mary, to move appropriate writ petition at an appropriate time, if they are so advised, after the statutory appeal filed by the Sarpanch is disposed of on merits by the Government. 20. Accordingly, W.P. No.19965 of 2009 is also disposed of. No order as to costs. __________________ P.S. NARAYANA, J September 17, 2009. NOTE: Furnish C.C. of the order by tomorrow. (B/O) PV