IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 WP(C).No. 14620 of 2010(B) -------------------------- PETITIONER(S): --------------- K.K.SOBHANAKUMARI, SPECIAL GRADE SECRETARY, EZHAMKULAM GRAMA PANCHAYATH, (UNDER ORDERS OF TRANSFER), PATHANAMTHITTA DISTRICT. BY ADV. SRI.D.KISHORE RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PANCHAYATS, THIRUVANANTHAPURAM. 3. THE ADDITIONAL DIRECTOR OF PANCHAYATS, THIRUVANANTHAPURAM. 4. THE EZHAMKULAM GRAMA PANCHAYAT, PARAKKODE P.O., PATHANAMTHITTA DISTRICT-691554, REPRESENTED BY ITS PRESIDENT. ADV. SRI. K.SHAJ FOR R4 GP SRI.P.NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J ....................... W.P.(C).14620/2010 ....................... Dated this the 17th day of May, 2010 JUDGMENT Petitioner is presently working as the Special Grade Secretary of the 4th respondent Panchayat. According to her, she had certain difference of opinion with the President of the Panchayat. It is stated that on account of the above, President issued Ext.P1 show cause notice detailing certain irregularities on her part and calling upon her to show cause why recommendation shall not be made to the Director of Panchayats to take action against her. On its receipt, petitioner submitted her reply dated 29.4.2010 denying the allegations. Panchayat thereafter convened a meeting on 5.5.2010 and the agenda reads as follows:- ...................................................................................................... ................................................................. 2. On the above agenda Ext.P3 resolution was passed resolving to recommend to the Minister for Local Self Government W.P.(C).14620/10 2 Department and the Director of Panchayats to immediately transfer the petitioner and to appoint another person in her place. Based on Ext.P4, the Additional Director of Panchayats ordered transfer of the petitioner to Kareepra Grama Panchayat in Kollam District. It is thereupon, this writ petition has been filed challenging her transfer. 3. The contention raised by the learned counsel for the petitioner is that in passing Ext.P3 resolution, Panchayat has violated the provisions contained in Section 179(4) of the Kerala Panchayat Raj Act (in short 'the Act') and Rule 4 of the Kerala Panchayat Raj (Procedure for Panchayat meeting) Rules, 1995. The stand taken by the panchayat is that there is substantial compliance with the provisions of the Panchayat Raj Act and Rules. According to them, in view of the irregularities committed, petitioner could not be continued as Secretary of the Panchayat and that it was therefore, the President issued Ext.P1 notice to which the petitioner submitted Ext.R4(d) reply. Thereafter the matter was discussed by the Panchayat and Ext.P3 resolution was passed. Therefore, the Panchayat contend W.P.(C).14620/10 3 that the challenge against Exts.P3 and P4 is unsustainable. 4. The first issue that arises for consideration is whether in passing the impugned resolution, the provisions of Section 179 (4) of the Act have been complied with. Section 179(4), along with the proviso, reads as follows. “The Government or any authority authorized by Government may, at any time, transfer Secretary from a Panchayat and shall do so if such transfer is recommended by a resolution of the Panchayat to pass at a special meeting call for the purpose and supported by a simple majority of votes of the allotted strength of the Panchayat Provided that before considering such a resolution by the Panchayat the Secretary shall be given an opportunity to make a representation before the Panchayat or the President and shall be heard by them, if necessary.” 5. A reading of Section 179(4) of the Act shows that it is open to the Panchayat to convene a special meeting and pass the W.P.(C).14620/10 4 resolution with simple majority recommending transfer of its Secretary. If such a resolution is passed, the Government or any authority authorized by the Government is bound to transfer the Secretary. However such exercise of power is conditioned by the proviso which requires that the Secretary shall be given an opportunity to make a representation before the panchayat or the President and shall be heard by them, if necessary, and this necessarily shall be done before passing the resolution. 6. It is the settled position in law that if a statute requires something to be done in a particular manner, it shall be done in that manner or not at all. A reading of the provisions contained in Section 179(4) of the Act and its proviso would show that if the Panchayat proposes to pass a resolution, it should first give the Secretary an opportunity to make representation against the proposal, then a special meeting shall be convened and in that meeting, resolution has to be moved and should be passed by a simple majority. In this case, Ext.P1, is the notice issued to the Secretary. In the said notice, apart from detailing certain irregularities alleged against the petitioner, there is not even a W.P.(C).14620/10 5 mention of any proposal to pass a resolution as contemplated in Section 179(4). Thus, the petitioner did not have notice of the proposed resolution in order to enable the petitioner to make a representation as contemplated in the proviso to Section 179(4). Therefore, there is non compliance with the proviso to Section 179(4) of the Act in this case. If there is non compliance with the proviso, rest of the action taken by the Panchayat in convening the meeting, considering the matter and passing the resolution will automatically become irregular. Thus, there is non compliance of Section 179(4) and hence the resolution passed is illegal. 7. The other contention raised by the learned counsel for the petitioner is that in terms of Rule 4 of the Kerala Panchayat Raj (Procedure for Panchayat Meeting) Rules, 1995, a subject which is not included in the agenda for a particular meeting shall not be considered in that meeting. The agenda of the meeting held on 5.5.2010 is what is indicated in Ext.P2 notice which has been extracted in the earlier portion of this judgment. A reading of the agenda shows that it did not contain anything against the W.P.(C).14620/10 6 proposal for passing a resolution under Section 179(4) recommending transfer of the petitioner. Therefore, the resolution as reflected in Ext.P3 recommending the transfer of the petitioner, did not find a place in the agenda in the meeting held on 5.5.2010 and thus, there is violation of Rule 4 of the Meeting Rules as well. 8. As already stated, if the statute requires something to be done in a particular manner, it shall be done in that manner. Therefore, the statute having laid down in clear terms the manner in which the resolution should be passed and the agenda is to be prepared, this Court will not be justified in diluting the statutory requirement by an interpretation process. Therefore, I am not prepared to accept the contention of the learned counsel for the 4th respondent and there is substantial compliance and uphold Ext.P3 resolution in spite of non compliance with the statutory provisions. Therefore I accept the contention that Ext.P3 is vitiated for the aforesaid reasons and consequently Ext.P4 order also is vitiated. W.P.(C).14620/10 7 9. Therefore, the writ petition is disposed of quashing Exts.P3 and P4 to the extent the petitioner is transferred. Needless to say that this judgment will not stand in the way of the Panchayat taking a fresh decision in accordance with law. ANTONY DOMINIC, Judge mrcs