IN THE HIGH COURT OF JUDICATURE AT BILASPUR , ' ' (CHHATTISGARH) " WRIT PETITION No. l 4 5;] /2004 / PETITIONER ‘ Gendlal Kobragade agsd about 35 1; years S/o Late Anandram Kobrag'ade R/o Gram Panchayat Kalyanpur "1lahs11 Y Dongargarh Dlstt Kajnandgacnm G ) gi;§:%3\“ . r V Th6 State of Chhattlsgarh Through Secretary, Panchayat and Rural, Department D K S Bhawan RaIILur‘ Director ' L ‘ Panchayat Raipur,(C_.G.) 3:. 13 ‘ s . , duw‘ . ERSUS , ‘ ; . 3' ‘ ‘ > “ 3. ¢ .-' j v 5 /, ‘ ,.(§.L\uo ,The Dlstt Collector Rajnandgaon (C G) _ i 6 Chref Executlve Offrcer ‘Janpad Panchayat ' Dongargarh Drsttt Rajnandgaon WRIT PETITION UNDER ARTICLE ZZ [ , CONSTITUTION OF INDI -‘ A ‘ l ‘ : i ‘ z 1 ?)“ J L /N :2 HIGH COURT OF CHHATTISGARH BILASPUR w.p.No. 2356 of 2004 ' Brindwah Vishwakarma Vs. State of Chhatr’tisgarh 8r, others Agpearance: Shri RD. Guru with Shn' SR4}. JaiswaL cmmSe] fm‘ the. petitioner. ’ Shn‘ Sushi] Dubey, Govt, Advaéate for the Snate/ «v1 mspondcnts no. 1, 2 8o 3 . ‘ Shri Sunil Sahu, counsel for respondent no.4. Writ Petggion No.1451 [2004 Gsndlal Kobmgad e Vs. State of Chhattjsgarh and others; A22ear®ce: Shri Parag Kotgcha, counsel for the petitionar. ' Shn‘ Sushi} Dubey, Govt. Advocate for the State] respondents no. 1, 2 8a 3. Shxi Rakesh Pandey. counsel for respondcnt no.4. ORDER (18.09 .2006) Sunil Kumar Sinha, J. (1) A common question is raised for consideration in both these Writ petitions as to Whether a Pdnchayat Karmi, iater on ‘ declaxed as the Secretary u/s 69(1) of the M.P.(C.G} Panchayar Raj Adhiniyam 1993, hereinafter referred to as the Act, can be removed from the post of Secretary without following the ; procedure laid down under Rule 7 of the M.P. Panchayat Service (DiSCipljne and Appeal) Rules 1999 {hereinafter referred to as the Rules) 7’ In other WOIds, whether the said nxles of 1999 are applicable to the Panchayat Karmis who are subsequently declaxed/ appointed as Sectetan‘es also by order of the prescribed authority u/ s 69(1) of the said Act ? (2) was initiaHy appointed as a Panchayat Karmi of Gram Panchayat, Deosaral, Block Pithora, Distt. Mahasamund vide order of. Sarpanch dated 4.11.1995. He was declared as the Secretary of I the Gram Panchayat lys' 69(1) of the aforesaid Act. On some complaint being made against him, a preliminary epquiry was: ordered and a report Was obtained by the Collector. The collecfor ac‘ted on the said report and. passed an order-dated 22.11.2002 by which he set aside the earlier order whereby the petitioner was declared as the Secretary of the said Gram Panchayat. The petitioner filed a Ievision against the aforesaid order before the Director, Pahchayat, Raipur, vide Case No.28/B-l2l jO2—03. The Director, Panchayat, dismissed his revision and confirmed the. order passed by the Cc)llec_tr)r. ’l‘he petitioner has raised the point, that since the Rules of 1999 were applicable in case of the. petitioner, therefore, his removal from the post of Secretary was not possible without following the procedure laid down in Rule 7 of the said Rules as by virtue of provisions of Rule 5, the penalty imposed against the petitioner was a major penalty and the same deserves to be. set aside. His contention is that. the principles of <\natural justice have not been followed. in, this case, The The brief facts are that the petitioner in W.P‘No.2356f2004 R \ respondents have flled their return in which it is stated that the impugned order of removal was passed by the Collector on an cnquixy feport submitted and recommendations made by the Deputy Direcmr, Pa11chayat, Distt. Mahasamund. In fact they could not show any record regarding domestic enquiry, pursuant t‘to Rule 7 of the afmesaid Rules. ~(3) The petitioner in W.P.No.l451/2004 was also initially appointed as a Panchayat Karmi, Gram Panchayat, Kalyanpur; Sub-Division Dongargarh, Distt. Rajnandgaon. Later on. he was declared as Secretary of the said Gram Panchayat vide order dated 10.8.2000 (Annexure P- 1) issued u/s 69(1) of the Aforesaid Act. On some compiaint being made against the petitioner, the Executive Ofi'lce of Janpad Pauchayat, Dongargarh', issued a Memo dated 25.9.2000 and called upon the petitioner to me reply to the said complaint. The petitioner submitted his reply on 04.10.2000 and thereafter, an enquiry was conducted by one Shri R.K. Soni, Parwhayat Evam Samaj Shiksha Swvghatak, Dongargarh, who submitted a report to the Deputy Director and thereafter on theubasis of this report, the District Collector Rajnandgaon passed the impugned ordei; dated 23.10.2000 cancelling the earlier order. regard ing appointment] declaration of the petitioner as Secretary of the said Gram Panchayat. Against the order passed by the Collector, the petitioner preten‘ed a I revision before the Commissioner which was ultimately dismissed on 15.7.2002. This revision ’was dismissed holding that the revision does not lie against such an order. Then the petitioner preferred an appeal before the Commissioner which finally, after ‘ abolition of the post of‘:-Commission‘er in .fhe State of Chhattisgarh, went before the Director Paochayat, who ultimately dismissed the appeal of the petitioner gvidc hast order dated 27.4.2004. This petitioner has also raised the ground that, the pmcedule laid down in Rule 7 of the aforesaid Rules 1999 were :x not followed} therefore, initial order of the removal and consequential orders passed in revision and appeals are required to e set aside. b (4:) A similar question arose before this Court in the matter of Prakash Chandra Patel 4’s State o Chh arh and others, reported in 20% Law Times (C.G) Pg. 142. It was argued in that case that the provisions of the aforesaid Rules of 1999 were not applicable in cases of Panchayat secretary by virtue of proviso to sub-rule (3) of Rule 1 of the aforesaid Rules. The single bench. of the High Court presided over by Hon’hle Shri Justice L.C.Bhadoo ruled out that in the given situation provisions of the Rules of 1999 were fully applicable to the cases of Secretaries who were appointed/declared as Secretary u/s 69(1) of the said Act. While hearing another writ petition vide ‘W.P.No.l656/2()()4, Hon’ble Shri Justice SK; Agnihotri came across the propositions laid down in PraJcash Chandra Patel’s ease (supra) and referred the matter to the Larger Bench for further, opinion on this point. Thereafter, the said W.P.No.1656/2006 came up before the Division Bench of this Court and the Division Bench’ eomprising of Hon’ble the Chief Justice Shri S.R.Nayak and Hon’ble Shri Justice D.R. Deshmukh \decided the matter on 25.7.2006 hy holding that the proviso to K \ \ \ 7% sub-rule (3) of R'ule 1 of the said Rules of 11 999 has no application to the cases like present one and the judgment rcndemd by Shn' Bhadoo, J, was held to be unexceptionable. (5) Sub-r1116 (3) of Rule (1) of Rules 1Q99 provides fhat except as otherwise provided by or under these rules, they app1y to all persons employed in connection with the aillairs of Zila Panchayats, Janpad Panchayats and the Gram Panehayats and discharging the functions of Zila Panchayat, Janpad and Gram Panchayat provided that nothing in these rules shall apply to the Omcers and Servants of the State service who are. posted. under the Panchayats u/s 69 or are on lone service to the ‘Panchayats u/s 71 of the Act. Sub-section (1) of Section 69 provides that the State Government or the prescn'bed authority may appoint a Secretmy for a Gram Panchayat or group of two or more Gram Panchayats wheteas section 71 provides for deputation of Government servants that the State Govt. may depute to the service of the Panchayat such of its servants as it considers necessary and the service conditions of such deputed servants shall be such as may be prescribed by the State Government, from time to time. ’l‘hese provisions make it abundantly clear that the Rules of 1999 would have no application in case of appointments either being made by the State Government or the prescribed authority u/ s 69(1) of the Act and also to the persons who being the govemment servants have been sent on deputatiOn to the concerned Panchayats having their own service cadre. Therefore, for classification in relation to applicability of these Rules, the Character of appointment and also the character of post held by ml..;. , the persons concerned is a decisive factor and the distinguishable poiht is that if the persons ale afpointed by the State Government or the bfcscfibedsauthority, as the case may he, holding the charactér of Govt. sewant, then only the Rules of 1999 will have no application in their cases. In contrast, the rules will have application Ito all the persons employed in v connection with the'atfairs of Zila Panchayat, Janpad Panchayat and the Gram Panchayats and. discharging the functions of Zila Panchayat, Janpad Panchayat and Gram Panchayat, except the exceptions Ieferred to above that, is when the appointment is made either u/ s 69 or the employees weie sent on. deputation u/ s 71 of the Act i.e., in case of officers who happen to’be members of State service and are posted under the Panchayat u/s 6C) or they are on deputation u/ s 7 1 of the Act. (6) This is further supported with the provisions of section '70 of the Act which independently provide forlappointmen’r of other othcers and servants of Panchayat. It has been provided by sub- section (1) that subject to the provisions of section 69, every Panchayat may, with previous approval of the prescribed authority, appoint such other officers and servants as it. considers ecessary for the .eiiicient discharge of its duties. Subsection (2) provides that qualifications, method of recruitment, salaries, leave allowances and other conditions of service including disciplinary matters of such ohicers and servants shall be such as may be prescribed. Itwvsho‘uld be noticed that for the appointments of Panchayt Kan/ms, the State Government has prepared bne Scheme known as“The Panrlmyat Karmi Vnjna” and n \K ,/% their appointments are being made by the Gram, Panchayat under the said Scheme which Wés prepared udder sub-section (1) of section 70 of the Act. The frame work of rules of 1999 would Show that in exercise of the powers conferred. by sub-section (1) of section 95 mad with sub—section (2) of section 70 of the ‘Act, the State Government made the aforesaid Ruies. A conjoint reading of sub-sections l 85 2 kof section 7O of the Act would show that these rules are framed to xegulate the service conditions of such officers or the servants who were appointed .hy the Gram Panchayat under sub-section (1). Therefore, admittedly, the peso as anca K ue e P L sc f sh o e an o ? h o a c in rns appointed Phdyt wmis ndr th anehayat Karmi Yojna, rwhich was a heme under subvsection (1) o Section 70, a11 als be included within. th meing f wow “suc dicer nd servants” as ontemplated sub-section (2) of section 7O of th Act d tey ould be governd by t Rules of 1999 hich has been prescr with reeren sub—section (2) of section 70 of the said Act. (7) Therefore, it is held that the rules f 1999 were applicable in cases of t petiers who were admittedly nitially appointed as Pancayat Karmis of their espective Pancayats and were only conferred i the power of secretary u/ s 9(1) of he Act and While imosing the pelty, referred to abov, a sutantial compliance of ule 7 of e aforesi rules was required) failing which, the impned orders'wonld he sustained in the eye of law. ”L (8) I View . I of What has been stated abov, the writ . petiuons . . are allowed. The impugned orde regardin remal of t e an h w e he w ibed fce to o he tion, i h r h wth s 6 t p na e bs r th ad ug not /'t/ y g ' n V e rs g ov he ‘ petitioners from the posts of secretaries; passed by the: rcspective Collectors and all consequent ordem péssed in appeals] revisions are hereby quashed. The petitioners éhal] be entitled to all the benctits in consequence of the quashing of the impugned elders of lemoval. However, if so required, the State autho free to initiate disciplinary proceedings against the petitioners for the alleged misconduct committed by them in acconlance with the pmvisions of the'Rules, referred to above. Iities shall be No orders as to the costs.