(1) WP. 5111.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5111 OF 2010 Smt. Kalpana Suryakant Somwanshi, Age : 23 years, Occu.: NIL, R/o : Wadhawana (Kh), Tal. Udgir, District : Latur .. PETITIONER VERSUS 1. The Divisional Commissioner, Tal. and Dist. Aurangabad (Copy to be served on Govt. Pleader High Court of Judicature of Bombay Bench at Aurangabad) 2. The Chief Executive Officer, Zilla Parishad, Latur, Tal. and Dist. Latur 3. Child Development Project Officer, Child Integrity & Development Employment Scheme, Udgir, Tal. Udgir, District : Latur 4. Mayabai @ Mayavati D/o. Venkatrao Gotmukale, Age : 27 years, Occu.: Household, R/o.: Wadhawana (Kh.), Tal. Udgir, District : Latur .. RESPONDENTS Mr. S.V. Suryawanshi, Advocate for the Petitioner Mr. S.V. Kurundkar, Addl. G.P. for the respondent-State Mr. S.S. Manale, Advocate for the respondent nos.2 and 3 Mr. N.G. Kale, Advocate for the respondent no.4 ... (2) WP. 5111.2010 CORAM : V.R. KINGAONKAR, J. DATED : 30TH JULY, 2010 ORAL JUDGMENT:- 1. Rule. Rule made returnable forthwith and heard finally. 2. By this Petition, the petitioner impugns judgment and order rendered by learned Divisional Commissioner, Aurangabad, in the proceedings purportedly initiated under section 267-A of the Maharashtra Zilla Parishads and Panchayat Samities Act, 1961. By that order, the learned Divisional Commissioner cancelled the selection of the petitioner for the reason that she was ineligible to be appointed as Anganwadi Karyakarti i.e. Helper for the reason that she was not a widow. 3. Heard learned counsel for the parties and learned Additional Government Pleader. (3) WP. 5111.2010 4. Section 267-A of Maharashtra Zilla Parishads and Panchayat Samities Act, 1961 reads as follows:- "267-A. (1) If the Commissioner is satisfied that it is necessary in the public interest so to do, he may by order in writing under his signature suspend the execution of any order or resolution, or prohibit the doing of any act, by a Zilla Parishad, or its Committee or Panchayat Samiti which, in his opinion, is unlawful; and it shall be the duty of the Zilla Parishad or its Committee or the Panchayat Samiti, as the case may be, to comply with such order. (2) If, in the opinion of the Commissioner, the execution of any order or resolution of a Zilla Parishad or its Committee or Panchayat Samiti or the doing of anything by a Zilla Parishad or its Committee or Panchayat Samiti is inconsistent with the instructions or directions given or issued under sub- section (1) of section 261, he may, by order in writing under his signature, suspend the execution or prohibit the doing (4) WP. 5111.2010 thereof and it shall be the duty of the Zilla Parishad or its Committee or Panchayat Samiti, as the case may be, to comply with the order of the Commissioner." 5. Perusal of section 267-A would make it manifestly clear that the Commissioner has power to suspend the execution of any order or resolution which is, in his opinion, unlawful. So, if the Zilla Parishad or Panchayat Samiti would pass any unlawful resolution or would render any unlawful order then the Commissioner may direct suspension of such order. The power is limited to cause suspension of the order. Section 267-A does not empower the Divisional Commissioner to cancel the order or resolution which in his opinion is of unlawful nature. It is the province left to the competent authority under the provisions of the Maharashtra Zilla Parishads and Panchayat Samities Act, 1961. It appears that learned Divisional Commissioner usurped such powers which are unavailable to him under the Act. (5) WP. 5111.2010 6. One cannot be oblivious of the similar provision contained in section 308 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965. The Collector has the power to suspend any resolution of the Municipal Council which in his opinion is likely to cause injury or annoyance to the public or is against the public interest. The Collector, however, has no power to wipe out the resolution. Say, for example, if the Municipal President has made illegal appointments by virtue of certain resolution rendered by the Municipal Council, the Collector may suspend the resolution. It does not mean that the Collector may cancel the appointments on his own. The Collector's powers are of supervisory nature. 7. Mr. Kale learned counsel appearing for respondent no.4 has invited my attention to the observations in "Kanchanmala d/o Ramgir Bharati V. The State of Maharashtra and others (Writ Petition no. 8248 of 2007)". It is the order dated 31.7.2007 (6) WP. 5111.2010 rendered by a Division Bench of this Court wherein it has been observed that the proper remedy of unsuccessful candidate could be to agitate the issue before the Divisional Commissioner under section 267-A of the Maharashtra Zilla Parishads and Panchayat Samities Act, 1961. This observation is rendered while dismissing the Petition in limine and not while deciding the Petition on merits. Therefore, such stray observation cannot be treated as ratio decidendi and binding precedent as such. The case before the Division Bench was in respect of challenge made by the unsuccessful candidate. The present case, however, is in respect of a successful candidate who has been shunted out vide order impugned in this Petition. The impugned order is therefore, rendered without jurisdiction and as such is quite un-sustainable in the eye of law. 8. In the result, the Petition is allowed. The impugned order is set aside. The respondent no. 4 is at liberty to approach the competent authority, if so advised or if found necessary. Rule made (7) WP. 5111.2010 absolute accordingly. No costs. The petitioner meanwhile may be allowed to join the duty subject to the final adjudication of the disputed facts about her liability and the service, if any, will be deemed as ad-hoc uptill period of such adjudication. Sd/- [V.R. KINGAONKAR, J.] arp