^•^Si's'^. ^M'^i ,. .O.J?-l(.f^—^ Mj —:^^^aMC^^ dateB...-.%3-^^";"-"&""""" KlJN THEHIQH COURT OFJWDICATURE AT BI&ASPUR ai®.;. : . ICHHATTISGARH1 ; ' WRIT PETITION No.'$8&3 /2005 gjp^ l^iaTFKMTER -^ Subrat Sana, aged about 30 years S/o Shri P.K. Sana, R/o Village P.V. 45, Gram Panchayat ; Ghodagaon, Tah. Pankanjur, Distt. U.B. Kan6er (C.G.) VERSUS RESPONDBNTS .o^i^ /1. The State of Chhattisgarh, Throygh Secretary, Panchayat and Rural Di i Departinent, Mantralaya D. K.S. Bhawan, Raipur / €^'s' ; •%v t wm ^^ 5. y 6. Sub Divisional Officer (R)^Pankanjur Distt. U.B. Kanker Chief Executive Officer, Janpad < Panehayat, Koyalibeda Distt. Kanker Jaideo Mandal S/o Harpilash Mandal, R/oViUage FV.45 Gram " Panchayat Ghodagaon, Tahsil Pankanjur, Distt. U.B. Kanker(C.G.) Sarpanch, Grani Panchayat Ghodagaon Tahsil Pankaryur, Distt. U.B. Bastar (C.Gj ' | DeputyBirector, Panchayat and || Social Welfare, Uttar Bastar iKanker|j Wirei^^ETITIO^WNDma ABTICI»B226ASD2S7 OFTHS CO^TITUtIQS <W INOIA iia i,IK mOH COURT OF CHHATTISGARH AT BILASPUR PETITIONER RE8PONDENTS WRITPETITIONNo. 5883 of2005 Subrat Sana. VERSUS The State ofChhattisgarh & Others. Writ Petition Under Article 226 And 227 OfThe Constitution Oflndia SB: Hon'ble Shri Satish K. Aenihotri. J. Present: Shri Parag Kotecha, Advocate for the petitioner. Shri N.N.Roy, Panel Lawyer for the State/respondent No. 1, 2 & 6. Shri Bhaskar Payasi, Advocate for the respondent No. 4. Shri B.D.Gum, Advocate for the respondent No. 5. ORDERfORAL) (Passed on 01st day of April, 2010) 1. By this petition, the petitioner seeks a writ quashing/setting aside the resolution dated 20.06.2005 (Annexure P/5) and the order dated 27.6.2005 (Annexure P/6) whereby the respondent No. 4 was declared as Panchayat Secretary for the Gram Panchayat, Ghoda Gaon, Block Koyalibeda, Dista-ict Uttar Bastar, Kanker. ^ 2. Shri Kotecha, leamed counsel appearing for the petitioner submits that m the resolution dated 12.04.2005 (Annexure P/l) of Gram Panchayat, Ghodagaon, having regard to the essential qualification at that point of time which was class 10 pass certificate, the petitioner was selected for the post of Panchayat Karmi and found his name at serial No. 1. Thereafter, the resolution as required was not placed before the Gram Sabha for approval and the resolution died its own death as no effect could be given. Subsequently, on 21.04.2005 (Annexure R/5-1), the qualification for appointment on the post of Panchayat Karmi, was amended and increased to 12 pass. Thereafter, the Gram Panchayat passed resolution on 16.6.2005 on the basis of minimum essential qualification i.e. class 12 pass, the respondent No. 4 was recomniended and after approval ofthe Gram Sabha, the Deputy Director, Panchayat ^ and Social Welfare passed the order of appointment on 27-6-2005 (Annexure-R/5-3). 3. Shri Kotecha furfher submits that it is well settled principle of law that once the selection process has started, no amendment either in the qualification or in other process may be made during selection process, till it results into selection of a candidate, The process was initiated by inviting applications, on 12.04.2005 when the resolution was passed. At fhat point oftime, the.essential minimum qualification was class 10 pass and the petitioner was placed at serial No.l. The respondent authorities ought to have taken resolution to the Gram Sabha for approval and thereafter, the appointment order should have been passed. The authorities abandoned the process in between and after amendment in the essential qualification, second resolution was held on 16.6.2005 and the respondent No. 4 was recommended for appointment and the resolution was thereafter approved by the Gram Sabha and consequently, the appointment order was passed. Even in the second resolution, other meritorious candidates have been ignored. The petitioner was not under consideration in the second resolution dated 16.6.2005. Shri Kotecha further contends that fhe statement of fhe respondent No. 5 that the resolution dated 16.6.2005 has been passed by the Gram Panchayat is contrary to fhe records as is evident from several affidavits swom and filed in this Court by the Panchas of the Gram Panchayat vide Annexure P/9. Thus, the appointment ofthe respondent No. 4 is vitiated. 4. On the other hand, Shri Guru, leamed counsel appearing for the respondent No. 5 submits that the affidavits filed by different panchas after approval of resolution in Gram Sabha may not be taken mto i consideration as this is not a fact fmdmg Court. The resolution was ^' passed m accordance with law which is evident from the document (Annexure R/5-2) wherem the signatures of all the panchas are present who were present at the time ofpassing the resolution. Shri Bhaskar Payasi, leamed counsel appearmg for the respondent No. 4 adopts the submissions made by Shri Guru and submits that clause 3.3. of Annexure P/3 i.e. Panchayat Karmi Scheme makes it clear that in addition to the minimum essential qualification, ofher qualifications may also be added. The respondent No.4 is admittedly more qualified, as he is m possession of 12 class pass exammation certificate and the petitioner is having 10 class examination certificate. Thus, &om all angles, the allegations of the petitioner are without any basis and deserves to be rejected. On consideration of the rival submissions made by leamed counsel appearmg for the parties, it is evident that the petitioner was found at serial No. 1 in the resolution dated 12.04.2005. It is further evident that the essential qualification prescribed in the Panchayat Kanni scheme was 10 class pass certificate or the High School Certificate under the 10+2 scheme. Clause 3.3 of the scheme wherein it is provided that additional qualification may be added, cannot be ignored. The contention ofthe petitioner that though the resolution dated 12.04.2005 was not given effect but the resolution dated 16.6.2005 which according to certain affidavits filed by the panchas, was never held, may be treated as continuation of the first selection process and by amendment, this cannot be changed, deserves to be rejected on a simple ground that in case of appointment of Panchayat Karmi, the first and foremost test is consideration in general meeting of'the Gram Panchayat. The first resolution dated 12.4.2005 could not be given efEect to. It camiQt be held that the process was abandoned. The second process cannot be held as continuation ofthe first process and thus, the subsequent amendment does not change the rule of game after the game has started. In the second resolution, the petitioner was not in consideration for selection and as such, he has no locus also. The petitioner is having lesser qualification i.e. 10 class examination certificate whereas the respondent No.4 is having 12 class pass examination certificate. 7. Even otherwise, in the instant petition, wherein the appointment of the respondent No.4 is in question, ofher issue raised in regard to presence ofpanchas in the meeting ofthe Gram Panchayat cannot be decided by fhis Court. Resolution dated 16-6-2005 passed by the Gram Panchayat was later on approved by the Gram Sabha and thereafter, the order of appointment m favour ofthe respondent No.4 was passed. The issue of presence ofpanchas in Gram Panchayat has not been raised either m the Gram Sabha or before the Deputy Director. Even otherwise, having considered the fact that the appointment was made in the year 2005 and thereafter, the respondent No. 4 has been working on fhe post, the petitioner has also not made out any case for quashing ofthe impugned orders. 8. Furfher, a resolution of a Gram Panchayat/Gram Sabha cannot be tenned as fmal order as it is well settled principle of law that the resolution is a mere recommendation. Resolution is an expression of the opinion ofthe members who have come to a unanunous conclusion but the 'resolution' by itself does not have the force of law. Even if a wrong recoinmendation has been made, it is for the appointmg authority to pass the order. In case of the petitioner, no order has been passed at any point oftune appointing him on the post and as such, he has no \ right to appointment on the basis of resolution, which has been held as -r-^ in the nature of recommendation and fiirther, no fomial order was passed. 9. The Supreme Court, in New India Asswance Co. Ltd v. Nusli Neville Wadia & another, while considering a resolution passed by the Govemment of Iridia for eviction of the unauthorized occupants ftoffl fhe occupancy ofthe premises on the basis ofthe resolution passed by the Govemment, observed that the resolution are mere guidelinps and not controlled by the statutory provisions. 10. In view ofthe above and for the reasons stated hereinabove, the writ petition is dismissed. 11. There shall be no order asto costs. Amit Sd/— K. Agnihotri Judge