t c^ IN THE HIGH COURT OF JUDICATURE AT BILASPUR, CHHATTISGARH WRIT PETITION N0.22^ OF 2004 PETITIONER: ^-•y^- ^¥" ^'.•^ •••• ;^^' <^'' RESPONDENTS: l^^b Brindawan Vishwakarma, S/0 Devi Singh Vishwakarma, Aged about 33 years, Panchayat Karmi, Gram Panchayat, Deosaral, Block Pithora, District Mahasamund (C.G.). Versus 1. State of Chlaattisgarh, Through Secretary, Department of Panchayat and Rural Development, D.K.S. Building, Mantralaya, Raipur (C.G.). 2. Director, Panchayat, Raipur(C.G.). 3. Collector, District Mahasamund (C.G.). 4. Gram Panchayat, Deosaral, Through Sarpanch, Deosaral, Block Pithora, District Mahasamund (C.G.). WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA ^^m^^f ^ _x HIGH COURT OP CHHATTISGARH, BILASPUR W.P.No. 2356 of 2004 Brindwaii Vishwakanna Vs. State of Chhatrtisgarh & ofhers Appeayaace: Shri B,D, Gzini with Shri S.R.J. Jaiswal, counsel for the petitioner. Shri Siisbil Diibey, Govt, Advocate for tlie State/ respondents no. 1, 2 & 3 Shri Sunil Sahu, cozinsel for respoudent no.4, "T Wrlt Petition No.1451/2004 Gendlal Kobragade Vs. State of Chhattisgarh aiid oftiers Appearaiice: Shri Parag Kotecha, counsel for the petitioner. Shri Sushil Dubey, Govt, Advocate for the State/ respondents no.l, 2 & 3, Shri Rakesh Pandey, counsel for respondent 110.4. ORDBR (18.09.2006) Bmm.il Kiamar Sisaha^ J> (1) A coninion question is raised for consideration in both fhese writ petitioiis as to whefher a Panchayat Kanni, later on declai^ed as the Secretary u/s 69(1) of the M.P.(C.G) Panchayat Raj Adhuiiyani 1993, hereiaafter rcfeired to as the Act, caii be removed from fhe post of Secretary withoiit followmg fhe -.2' ^ 1"^»K' procedure laid dowu under Rule 7 ofthe M,P. Paachayat Sen^ice (Discipliue aiid Appeal) Rules 1999 (hereinafiter iiefen-ed to as tiie Rules) ? In other words, whether tiie said niles of 1999 are appUcable to the Panchayat Kmrms who are subsequentiy declared/appoiiited as Secretaries also by order ofthe prescribed autiliority u/s 69(1) ofthe said Act ? (2) The brief facts ai'e that the petitioner m W. P. No.2356/2004 was iaitiaUy appointed as a Paiichayat Karmi of Grani Panchayat, Deosaral, Block Pifhora, Distt. Mahasamund vide order of Sarpanch dated 4.11.1995. He was declared as fhe Secretaiy of the Gram Panchayat zi/s 69(1) of the aforesaid Act. On soiae coniplaint being made agamst hiin, a prelimuiary enquiry was ordered aad a report was obtaiaed by tlie CoUector, The coUector acted on fhe said report and passed au order dated 22<11.2002 by which he set aside the earlier order whereby tlie petitioner was declared as tlie Secrctaiy of the said GraBi Paachayat. The petitioner filed a revision against fhe aforesaid order before the Director, Panchayat, Raipur, vide Case No.28/B-121/02-03. The Director, Panchayat, dismissed his revision and confiraied the order passed by the Collector. The petitioner has raised the pouit that siiice the Riiles of 1999 were applicable ia case of fhe petitioner, tliercfore, his renioval froiii the post of Secretaiy was not possible wifhout followiag fhe procedure laid down iii Rxile 7 of the said Rtiles as by virtue of provisions of Rule 5, the penalty imposed agaiiist the petitioner was a niajor peiialty aiid the same deser^es to be set aside, His contention is that tlie prmciples of ^ natiiral justice have uot been followed in this case. The (^^y rcspondents have filed their retiim in which it is stated tliat the impiigned order of renioval was passed by the Collector on aii enquuy report submitted and recommendations made by fhe Depiily Director, Paiichayat, Distt, Maliasamund, Tn fact they could not show any record regardmg domestic enquiiy, pureuaat to Rule 7 ofthe aforesaid Rules. (31 The petitioner in W.P.No. 1451/2004 was also initiaUy appointed as a Panchayat Karmi, Gram Panchayat, Kalyaiipur, Sub-Division Dongargarh, Distt, Rajnandgaon. Later 011 he was declared as Secretary of the said Graia Panchayat vide order dated 10.8.2000 (Annexurc P-1) issued ii/s 69(1) ofthe Aforesaid Act, On some complamt being niade agaiiist the petitioner, the Executive Of&ce of Jaiipad Panchayat, Dongargaj'h, issued a Mesiio dated 25.9.2000 and called upon the petitioner to file reply to the said coiiiplaint. The petitioner siibinitted his reply on 04.10,2000 and thereafter, au enqiuiy was conducted by oue vShri R,K, Soir4 Panchayat Evmn Samaj Shiksha Sanghatak^ DongargaTh, who szibmitted a report to the Deputy Director and tliereafter on the basis of this report, the District CoUector Rajnaiidgaon passed the iaipugned order dated 23,10,2000 caiicelliiig the earlier order regarding appointment/declaTation of the petitioner as Secretary of tiie said Grara Paiichayat. Agauist fhe order passed by the Collector, the petitioner prefeiTed a revisioii before the Conimissioner which was ultimately disuiissed on 15.7.2002. This revision was disniissed holding that the revision does not Ue agaiast such an order, Then the petitioiier prefeiTed an appeal before the C/ommissioner which finalty, aiter abolition of fhe post of Commissioner in tlie State of Chhattisgarh, went before the Director Panchayat, who ultmiately disniissed the appeal of flie petitioner vide last order dated 27.4,2004, This petitioner has also raised the ground that the procedure laid down in Rule 7 of the aforesaid Riiles 1999 were not foUowed, therefore, initial order of the reiaovaJ and consequential orders passed in revision and appeals are required to be set aside. (41 A similar qnestioii arose before this Court in tlie inatter of PraScash Chcmdra Patel -ffs- State of Chhattisgarh and ©thers^reported in 2004 Law Tifnes fC»G) Pes. 143. It was argued ia that case that the provisions of the aforesaid Rules of 1999 were not applicable in cases of Panchayat seci'efary by virttie of proviso to sub-rule (3) of Rule l of the aforesaid Riiles. The suigle bench of the High Court presided over by Hon^le Shri Justice L.C.Bhadoo niled out fhat in the given sitiiation provisions of the Rules of 1999 were fiilly applicable to tlie cases of Secretaries who were appouited/declared as Secretary ii/s 69(1) of fhe said Act, WhUe heariiig another writ petition vide W.P.No. 1656/2004, Hon'ble Shri Jiistice S.K. Agnihotri came across fhe propositions laid down iii Pf'cikash Chandra PateVs case (supra) aad referred fhe niatter to the Larger Bench for further opinion on this p3mt, Thereafter, the said W.P.No. 1656/2006 came np before the Division Bench of fJiis Court and flie Division Bench comprising of Hon'ble the Chief Justice Shri S,R,Nayak and Hon^le Shri Justice D,R, Deshmukh decided the niatter 011 25.7.2006 by holduig fhat the proviso to siib~2iile (3) ofRule 1 ofthe said Riiles of 1999 has no appUcation to the cases lilce present one aud the jiidgment rendered by Shri Bhadoo, J, was held to be iinexceptionable. (5) Sub-mle (3) ofRule (1) ofRules 1999 provides that except as otherwise provided by or under tliese rules, they apply to all persoiis einployed ia connection with the affairs of Zila Paiichayats, Jaiipad Paiichayats aiid the Gram Panchayats and discharguig the fuiictions of Zila Paiichayat, Janpad aud Gram Panchayat provided tiiat nofliing ui these rules shall apply to the Offices-s aiid Sei-vaats of the State ses-vice who are posted under fhe Paachayats u/ s 69 or are on lone service to the Panchayats u/s 71 oftJie Act Sub-section (1) ofSectioii 69 provides that tlie State Govemment or tlie prescnbed axithority may appouit a Secretary for a Graiii Panchayat or groiip of twro or more Gram Panchayats whereas section 71 provides for deputation of Govemiiient sei-vaats that tlie State Govt. raay depute to the sen^ice of the Panchayat such of ifs servants as it considers siecessary and tiie service conditions of siich deputed servaiite shaU be such as may be prescribed by tiie State Gtoveniment from tiine to tinie. These provisions make it abzindaiitly clear that fhe Rules of 1999 would have no application in case of appouitaients either being made by the State Goveniment or the prescribed authority u/s 69(1) oftJie Act and also to the persoiis who being tlie goveniment servants have been sent on deputation to the conceraed Panchayats havuig their own sei-vice cadre. Therefore, for classification in relation to applicability of these Rules, the ! Character of appoirLtnie.nt aiid also the character of post held by ^ ../ the persons concemed is a decisive factor aiid tilie distinguishable pouit is fhat if the persoiis are appointed by the State Govemiaent or the prescribed autliority, as the case m.ay be, holdiiig fhe character of Govt. servant, theii onty tJie Rules of 1999 wUl have 110 application in theu' cases. In contrast, tJie niles will have application to all the pei^ons employed ii-i connection with the affau's of Zila Pauchayat, Jaiipad Paiichayat aiid the Gram Panchayats and dischargiag the functions of Zila Panchayat, Janpad Pauchayat and Graia Panchayat, except the exceptions refeiTed to above that is when fhe appointiiient is inade either u/s 69 or the employees were sent on deputafion u/s 71 oftlie Act i.e., in case ofofficers who happen to be members of State service aad ore posted iinder fhe Panchayat u/ s 69 or they are on deputation u/s 71 oftlie Act. (6) This is fiirtlier supported with the provisions of section 70 of Uie Act which independently provide for appointmeiit of other officers and sei-vants of Panchayat. It has been provided by sub- sectioii (1) that siibject to tlie provisions of section 69, every Panchayat raay, wifh previous approval of the prescribed authority, appoint such other officers and servajits as it considers necessaiy for the efficient discharge of its duties. STib-section (2) provides that qiialtfications, method of reciiiitjBent, salaries, leave allowaiices and otiier coinEditions of ser^ice iiicluding disciplinaiy iiiatters of siich officers aiid sei-vaiits shall be such as niay be prescribed. It should be noticed fhat for tlie appointinents of Panchayf. Karmis, the vState Goveniment has prepared one Scheme kiiown as UThe Panchayat Karmi Yojna" and ^ their appouitooGients are beuig made by fhe Gram Panchayai under tiie said Scheme which was prepared under szib-section (1) of section 70 of tlie Act. The frazae work of niles of 1999 would show fhat in exercise of fhe powers conferrcd by sub-sectioii (1) of section 95 read with sub-sectioii (2) of section 70 of the Act, the State Govemment made fhe aforesaid Rules. A conjoint rcadiug of sub-sections 1 & 2 of section 70 of the Act would show tliat these niles are franied to regiilate the service conditions of such officers or the servauts who were appoiiited by the Graai Panchayat under sub-section (1), Therefore, adiaittedly, the persons appoiiited as PancJwyat Kannis under the Panchayai Kanni Yoj^za, which was a scheme under sub-section (1) of Section 70, shaU also be mcluded wifhm the meaning of word "siich officer and servaiits" as conteiiiplated iii sub-section (2) of section 70 of tlie Act and they would be goveined by the Riiles of 1999 which has been prescribed with reference to siib-sectioii (2) ofsection 70 ofthe said Act (T| Therefore, it is held fhat the niles of 1999 were applicable ui cases of tiie petitioiiers, who were admiftedly initialty appointed as Panchayai Kannis of their respective Panchayats and were only conferred witli the powers ofsecretary u/s 69(1) of the Act aiid whUe iniposuig tlie penalty, refen'ed to above, a substaatial conipUance of i-ule 7 of flie aforesaid iiiles was required, faUing which, fhe iiiipugned orders wou1d not be sustauied in tlie eye of law. (8| In view ofwhat has been stated above, the writ petitions are allowed, The impugned orders regardiiig removal of fhe petitioners froui fhe posts of secretaries, passed by the respective CoUectors and all consequeut orderspassed in appeals/revisions are hereby quashed. The petitioners shall be entitled to all the benefite in coasequence of the qiiashing of the impugiied orders of removal, However, if so required, the State authorities shaU be free to iuitiate discipUnaiy pr<x"eeditigs agaiust the petitioners for the aUeged niisconduct conimitted by tliein ui accordance wifli the provisions of the Rules, refeiTed to above. No orders as to fhe costs. Sunil Kumar Sinha Judge /Rao/