IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.W.P. No. 5102 of 2010 with C.W.P. No. 5337 of 2010. Reserved on: 05.10.2010. Decided on: 19.10.2010. _________________________________________________________ 1. Sultan Singh. …Petitioner. -Versus- State of Himachal Pradesh and Others. …Respondents. 2. Smt. Khedo and others. ….Petitioners. -Versus- State of Himachal Pradesh and Others. ….Respondents. ---------------------------------------------------------------------------------------- Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ C.W.P. No. 5102 of 2010. For the petitioner. : Mr. Ajay Mohan Goel, Advocate. For respondents No.1, 2 and 4 to 6. : Mr. P.M. Negi, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. For respondent No. 3. : Mr. Anup Rattan, Advocate. C.W.P. No. 5337 of 2010. For the petitioners. : Mr. Ajay Mohan Goel, Advocate. For respondents No.1, 2 and 6 to 8. : Mr. P.M. Negi, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. For respondents No. 3 to 5. : Mr. Anup Rattan, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: Since common questions of law and facts are involved in these petitions, these were heard together and are being disposed of by this common judgment. 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. 2. However, in order to maintain clarity in the facts, the facts of C.W.P. No. 5102 of 2010 are being referred. 3. Respondent No. 3, Mahinder Kumar alongwith Smt. Nimmo Devi, Smt. Anju Devi and Shri Dev Raj were elected as Members of Gram Panchayat, Panjoh, District Chamba. They submitted their resignations to the Deputy Commissioner, Chamba on 28.07.2009. The District Panchayat Officer, Chamba informed the President of Gram Panchayat, Panjoh that since the resignations of respondent No. 3, Smt. Nimmo Devi, Smt. Anju Devi and Shri Dev Raj were conditional, the same have not been considered and they should be permitted to mark their presence on 07.12.2009. The President of Gram Panchayat, Panjoh, District Chamba sent a letter to the Hon’ble Chief Minister on 20.03.2010, bringing to his notice the willful absence of respondent No. 3 alongwith Smt. Nimmo Devi, Smt. Anju Devi and Shri Dev Raj. The District Panchayat Officer sought the guidance from the Director of Panchayati Raj on 11.03.2010 the manner in which he should proceed with the matter. The Director, Panchayati Raj brought to the notice of the District Panchayat Officer that in case any Member absents himself from three consecutive meetings of the Panchayat or its Committee or does not attend half the number of meetings held during the period of six months without the leave of the Panchayat, action can be taken against him under Sub-section (2) of Section 131 of Himachal Pradesh Panchayati Raj Act, 1994. The Director, Panchayati Raj also informed the Deputy Commissioner, Chamba on 17th March, 2010 that the elected Member can tender his resignation, however, the same has to be forwarded through the office of Block Development Officer to the District Panchayat Officer. He also brought to the notice of the Deputy Commissioner, Chamba on 17.03.2010 that the Block Development Officer has to record his remarks regarding the genuineness of resignation. However, fact of the matter is that the Deputy Commissioner, Chamba on 18th March, 2010 accepted the resignations of respondent No. 3 alongwith Smt. Nimmo Devi, Smt. Anju Devi and Shri Dev Raj and declared four seats vacant. Thereafter, the Deputy Commissioner, Chamba sent a communication to the President, Gram Panchayat Panjoh to give details of four eligible members to be nominated on 12th April, 2010. The President of Gram Panchayat Panjoh gave the list of four persons and thereafter, the Deputy Commissioner, Chamba sent a communication to the Director, Panchayati Raj on 1st May, 2010. In sequel thereto, the Secretary, Panchayati Raj issued a notification on 28th May, 2010, whereby the present petitioner and three petitioners in C.W.P. No. 5337 of 2010 were nominated as Members of Gram Panchayat Panjoh. In pursuance thereto, the Deputy Commissioner, Chamba issued office order dated 4th June, 2010. Respondent No. 3 has filed an appeal before the Director, Panchayati Raj, Himachal Pradesh bearing No. 02 of 2010 assailing the order dated 18th March, 2010. The Appellate Authority granted the status quo on 28.04.2010. Similarly, Nimmo Devi, Anju Devi and Dev Raj also preferred an appeal against the order dated 18th March, 2010 before the Director, Panchayati Raj. He also granted interim order in their favour on 28.04.2010. The Director Panchayati Raj accepted both the appeals on 10.08.2010. 4. Mr. Ajay Mohan Goel, learned counsel for the petitioners has strenuously argued that the appellate orders dated 10.08.2010 are contrary to the principles of law and are not based on correct appreciation of oral and documentary evidence. He then contended that the order passed by the Deputy Commissioner, Chamba on 18th March, 2010 is legal and valid. According to him, the resignations were not conditional and no notice was required to be issued to the elected Members since they have not attended the three consecutive meetings of the Gram Panchayat Panjoh. 5. Mr. P.M. Negi, learned Deputy Advocate General and Mr. Anup Rattan, Advocate have supported the orders passed by the Appellate Authority on 10.08.2010. 6. I have heard the learned counsel for the parties and gone through the pleadings carefully. 7. It will be apt at this stage to take note of Sections 130 and 131 of the Himachal Pradesh Panchayati Raj Act, 1994 (hereinafter referred to as the “Act” for brevity sake), which read thus: “130. Resignation by office bearers.- (1) An office bearer of a Panchayat may resign his office by giving notice in writing to the prescribed authority. (2) The manner of giving notice and procedure of tendering resignation and of its becoming effective shall be as may be prescribed: Provided that a person tendering resignation may withdraw his resignation before it becomes effective. 131. Casual vacancies.- (1) If any person having been elected as an office bearer of a Panchayat- (a) subsequently becomes subject to any of the disqualification mentioned in Section 122 and such disqualifications is not removable or being removable is not removed.; (b) absents himself from three consecutive meetings of the Panchayat or its Committee or does not attend half the number of meetings held during the period of six months without the leave of the Panchayat; He shall, subject to the provisions of sub- section (2), cease to be such office bearer and his office shall become vacant: Provided that where an application is made by an office bearer to the Panchayat for leave to absent himself under clause (b) and the Panchayat fails to inform the applicant of its decision on the application within a period of one month from the date of receipt of the application, the leave applied for, shall be deemed to have been granted by the Panchayat. (2) In every case the authority competent to decide whether a vacancy has occurred under sub-section (1) shall be the Deputy Commissioner in respect of Gram Panchayat and Panchayat Samiti and the Director in respect of Zila Parishad who may give his decision either on an application made to him by any person or on his own motion. Until the Deputy Commissioner or the Director, as the case may be, decides that the vacancy has occurred, the person shall not cease to be an office bearer: Provided that no order shall be passed under this sub-section against any office bearer without giving him a reasonable opportunity of being heard. (3) Any person aggrieved by the decision of the Deputy Commissioner or the Director, as the case may be, under sub-section (2) may, within a period of 30 days from the date of such decision, appeal to the Director or the State Government respectively, whose orders on such appeal shall be final. (4) In the event of death, resignation or removal of an office bearer or his ceasing to be an office bearer under sub-section (1) or his becoming a Member of State Legislative Assembly or a Member of either House of Parliament before the expiry of his term, a casual vacancy shall be deemed to have occurred in his office and such vacancy shall be filled as soon as may be by election, in accordance with the provisions of the Act and the rules made thereunder. A person elected to fill the vacancy shall take office forthwith for the unexpired term of his predecessor. (5) In the event of casual vacancy occurring simultaneously in the office of the Pradhan and Up-Pradhan of a Gram Panchayat, Chairman and Vice-Chairman of Panchayat Samiti or Zila Parishad, the Gram Panchayat or the Panchayat Samiti or the Zila Parishad shall elect an office bearer qualified to hold the office of Pradhan or Chairman, as the case may be, itill new Pradhan or Chairman is elected in accordance with the provisions of this Act and the rules made thereunder. (6) In the event of occurrence of casual vacancies in a Panchayat to the extent that the number of the remaining elected office bearers do not fulfill the quorum required for convening a meeting of the Panchayat then the State Government or the prescribed authority may nominate persons to fill the casual vacancies occurred in a Panchayat till new members are elected in accordance with the provisions of this Act and the rules made thereunder: Provided that the State Government will nominate only that persons to fill a particular casual vacancy who is eligible to be elected as an office bearer of a Panchayat and to hold office of that particular Panchayat in accordance with the provisions of this Act. 8. The State has also framed ‘The Himachal Pradesh Panchayati Raj (General) Rules, 1997, Rule 135 whereof reads thus: “135. Resignation of Office bearer (Section 130 of the Act).- (1) Pradhan or Up-Pradhan or a member of the Gram Panchayat may resign his office by notifying in writing his intention to do so to the concerned District Panchayat Officer: Provided that the resignation shall be forwarded to the District Panchayat Officer through the Block Development Officer concerned. The Block Development Officer shall record his remarks regarding the genuineness of the resignation. (2) Every resignation under sub-rule (1) shall take effect on the expiry of the 20 days from the date of its receipt by the District Panchayat Officer concerned, unless within the petiod of 20 days he withdraws such resignation by wring under his hand addressed to the District Panchayat Officer. (3) An Office bearer of the Panchayat Samiti may resign his office in writing under his hand addressed to the Deputy Commissioner through the Block Development Officer concerned. The Block Development Officer shall record his remarks regarding the genuineness of the resignation and the Deputy Commissioner shall accept the resignation on the expiry of 20 clear days from the date of receipt of such resignation unless within the said period of 20 days, the office bearer concerned withdraws such resignation by writing under his hand addressed to the Deputy Commissioner. (4) An Office bearer of the Zila Parishad may resign his membership/office in writing under his hand addressed to the Director. The Director shall confirm from the office bearer concerned as to its genuineness, where the notice of the resignation is not delivered personally. The resignation shall become effective after the expiry of 30 days from the date of receipt of such resignation unless within the said period of 30 days, the office bearer concerned withdraws such resignation by writing under his hand addressed to the Director. 9. A bare perusal of Section 130 read with Rule 135 makes it abundantly clear that in case the resignation is to be tendered by the Member of the Gram Panchayat, he has to notify his intention to do so to the concerned District Panchayat Officer. The resignation is to be forwarded to the District Panchayat Officeer through the Block Development Officer concerned and the Block Development Officer is required to record his remarks regarding the genuineness of the resignation. 10. In the instant case, the resignation, as per Annexure P-1, has been tendered to the Deputy Commissioner. The Deputy Commissioner has no authority to accept the resignation. There is no material on record to show that the resignation was ever forwarded by the Block Development Officer after recording his remarks to the District Panchayat Officer. It has come on the record produced by the learned Deputy Advocate General that the District Panchayat Officer, Chamba has informed the President of Gram Panchayat Panjoh on 7th December, 2009 that since the resignations were conditional, the same could not be accepted and he should permit the elected Members to mark their presence. The Deputy Commissioner, Chamba has also been informed by the Director, Panchayati Raj on 17th March, 2010 that the resignation is to be forwarded by the Block Development Officer to the District Panchayat Officer. Accordingly, action of the Deputy Commissioner, Chamba to accept the resignations of respondent No.3 alongwith Smt. Nimmo Devi, Smt. Anju Devi and Shri Dev Raj is declared illegal. 11. Petitioners have tendered their resignations on 28.07.2009. The reasons assigned in the resignations are out-come of frustration and desperation. The Appellate Authority has come to the right conclusion that the resignations tendered by respondent No. 3 alongwith Smt. Nimmo Devi, Smt. Anju Devi and Shri Dev Raj was conditional. The District Panchayat Officer, as noticed above, has also informed the President of Gram Panchayat, Panjoh on 7th December, 2009 that the resignations could not be accepted since it was conditional. The District Panchayat Officer was the competent authority either to accept or reject the resignations tendered by respondent No. 3 alongwith Smt. Nimmo Devi, Smt. Anju Devi and Shri Dev Raj. 12. Moreover, in the instant case, the resignations have not been tendered to the competent authority and the same have been wrongly accepted by the Deputy Commissioner, Chamba. The letter has been sent by the Pradhan of the Gram Panchayat, Panjoh to the Hon’ble Chief Minister on 10th March, 2010. The District Panchayat Officer has also sought guidance from the Director of Panchayati Raj on 11th March, 2010. He was informed of the consequences in case the Members do not attend three consecutive meetings of the Gram Panchayat. The Director, Panchayati Raj has also informed the Deputy Commissioner, Chamba on 17th March, 2010 about the manner in which the resignation is to be tendered. The Deputy Commissioner, Chamba has further erred in law without hearing respondent No. 3 and Smt. Nimmo Devi, Smt. Anju Devi and Shri Dev Raj that they have not attended three consecutive meetings of the Gram Panchayat Panjoh. He has taken into consideration letter dated 10th March, 2010 sent by the President of Gram Panchayat Panjoh to the Hon’ble Chief Minister. There is nothing on record to suggest, even remotely that respondent No. 3 and Smt. Nimmo Devi, Smt. Anju Devi and Shri Dev Raj were ever afforded a reasonable opportunity of being heard before the issuance of Annexure P-2, dated 18th March, 2010. 13. It is evident from the phraseology employed in proviso to Sub-section (2) of Section 131 that no order can be passed without affording reasonable opportunity of being heard. Consequently, the order dated 18th March, 2010 issued in violation of the principles of natural justice is declared null and void. The Deputy Commissioner has mis-directed himself by initially accepting the resignation and thereafter passing orders without following the principles of natural justice. The Deputy Commissioner, Chamba thereafter sought the four names from the Pradhan of the Gram Panchayat on 12th April, 2010 and submitted the same to the Director on 1st May, 2010. The notification has been issued by the Secretary, Panchayati Raj on 28th May, 2010, whereby the petitioner Shri Sultan Singh in C.W.P. No. 5102 of 2010 and Smt. Khedo, Smt. Rato and Sh. Surrender Singh, petitioners in C.W.P. No. 5337 of 2010 were nominated as Members of the Gram Panchayat under Sub- section (6) of Section 131 of the Act. The learned Appellate Authority has granted the status quo orders on 28th April, 2010 in Appeals No. 2 and 3 of 2010 preferred by respondent No. 3 and respondents No. 3, 4 and 5 in C.W.P. No. 5337 of 2010. The order dated 28th April 2010 reads thus: “Case called. Ld. Counsel for applicant/appellant present and Official from District Panchayat Officer, Chamba are also present. Reply of Deputy Commissioner, Chamba has not been received. To come up for reply on 4.5.2010. Meanwhile, status quo be maintained.” 14. In view of the status quo order passed by the Appellate Authority, the notification dated 28th May, 2010 and order dated 04.06.2010 could not be issued. The order passed by the Appellate Authority has been flouted by the functionaries of the State. The order was passed by the Appellate Authority in accordance with law and the same was bound to be followed. The order passed by the Director of Panchayati Raj was quasi judicial. If the orders passed by the statutory authorities are not followed, it would lead to negation of rule of law. 15. I have also gone through the entire records to ascertain whether the Block Development Officer has recorded his remarks about the genuineness of the resignation tendered by respondent No. 3 in C.W.P. No. 5102 and respondents No. 3 to 5 in C.W.P. No. 5337 of 2010. In the instant case, the resignation has been tendered directly to the Deputy Commissioner and not to the District Panchayat Officer through Block Development Officer. The Deputy Commissioner, Chamba has not passed the orders in accordance with law. The Office bearers of the Gram Panchayat must be permitted to discharge their duties efficiently to strengthen the democracy. The Court is of the considered opinion that the provisions of Sections 130 and 131 read with Rule 135 are mandatory and these were required to be followed scrupulously. 16. Their Lordships of the Hon’ble Supreme Court in Laxmi Verma Versus State of Maharashtra and Others (2010) 5 Supreme Court Cases 329 while interpreting Section 41(2) of the Maharashtra Muncipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 have held as under: “16. Shri H.N. Salve, learned Senior Counsel appearing for the appellant strenuously contended before us that purposive interpretation of the aforesaid provision of law would mean that there has been a substantial compliance of sub-section (2) of Section 41 of the Act, inasmuch as there was no denial of the fact of submitting resignation by respondent 6, presenting the same by him to the Collector. On being asked by him to put initials at the places scored out by him, which he did, would be deemed to have been signed by him in the presence of the Collector. It should, thus, be construed that the same was validly accepted by the Collector. He has, therefore, contended that the Additional Commissioner in his revisional jurisdiction committed grave error in finding fault in acceptance of the resignation of Respondent 6 by the Collector. On the same analogy the orders passed by the learned Single Judge passed in the appellant’s writ petition and confirmed by the Division Bench in appeal have been attacked. 17. It was further contended by Mr. Salve that the test of tendering resignation as contemplated under sub-section (2) of Section 41 of the Act was satisfied and the resignation having been accepted, there was no question of holding otherwise. He has also placed reliance on the topic of “Express Requirements And Conditions” from Administrative Law, 10th Edn. 2009 of H.W.R. Wade & C.F. Forsyth. 18. He has contended that if the conclusion is reached that on a true construction, non- observance of the condition is fatal to the validity of the action, that condition is said to be “mandatory”. But if the conclusion is reached that non- observance does not lead to invalidity, the condition is said to be “merely directory”. He has further contended that sometimes the legislation makes it plain what the effect of non-observance is to be. But more often it does not, and then the court must determine the true import of the legislation. It is a question of construction, to be settled by looking at the whole scheme and purpose of the Act and by weighing the importance of the condition, the prejudice to private rights, and the claims of the public interest. 19. On the other hand, learned Senior Counsel Shri Vinod A. Bobde placed reliance on the following judgments starting from Nazir Ahmad V. King Emperor, Rao Shiv Bahadur Singh V. State of Vidhya Pradesh, Deep Chand V. State of Rajasthan, Ramchandra Keshav Adke V. Govind Joti Chavare and Union of India V. Gopal Chandra Misra. However, in the light of the clear provision of the Act which is as clear as daylight, it is not necessary to deal with the aforesaid judgments individually and in detail. 20. However, after going through the aforesaid sub-section (2) of Section 41 of the Act, the plain and only conclusion that can be arrived at is that resignation has to be tendered by the Councillor addressed to the Collector. It is to be delivered by him in person and then he has to affix his signature before the Collector, on compliance of the aforesaid conditions, then only such resignation shall be effective. It cannot be disputed that an obligation was created by the statute to perform it in the manner as provided therein, then in case of its non-compliance, the effect thereof would be rendered redundant and invalid in law. 21. The Collector himself admitted, in no uncertain terms, that the letter of resignation was already typed, on which the signature of Respondent 6 was already appearing. He went through the same and only asked him to put his initials at the place scored out in the said resignation. Putting of initials at the place where some portion of resignation was deleted, would neither amount nor can be construed to have been signed in the presence of the Collector. It would have been entirely different if the Collector would have asked Respondent 6 to authenticate and endorse his own signatures in the resignation at the same place where he had already put his signatures, then of course to some extent arguments advanced by Shri H. N. Salve would have made some point.” 17. Their Lordships of the Hon’ble Supreme Court in Dr. Prabha Atri Versus State of U.P. and others, AIR 2003 Supreme Court 534 have held that to constitute resignation, the letter of resignation must be unconditional and with an intention to operate as such. Their Lordships have held as under: “10. We have carefully considered the submissions of the learned Counsel appearing on either side, in the light of the materials and principles, noticed supra. This is not a case where it is required to consider as to whether the relinquishment envisaged under the rules and conditions of service is unilateral or bilateral in character but whether the letter dated 9.1.1999 could be treated or held to be a letter of resignation or relinquishment of the office, so as to severe her services once and for all. The letter cannot be construed, in our view, to convey any spontaneous intention to give up or relinquish her office accompanied by any act of relinquishment. To constitute a ‘resignation’, it must be unconditional and with an intention to operate as such. At best, as observed by this Court in the decision in P. K. Ramachandra Iyer (supra), it may amount to a threatened offer more on account of exasperation, to resign on account of a feeling of frustration born out of an idea that she was being harassed unnecessarily but not, at any rate, amounting to a resignation, actual and simple. The appellant had put in about two decades of service in the Hospital, that she was placed under suspension and exposed to disciplinary proceedings and proposed domestic enquiry and she had certain benefits flowing to her benefit, if she resigns but yet the letter dated 9.1.99 does