1- As the question involved in both these petitions are common and challenge is made to an order-dated 29.8.08, passed by the Commissioner Sagar Division, pertaining to appointment of Panchayat Karmi to Gram Panchayat Kishanpura under Janpad Panchayat Shahgarh in Tehsil Banda, District Sagar, both these petitions are being disposed of by this common order.
2- Facts that have come on record, on a perusal of the original records produced by Shri Rajesh Tiwari, learned counsel for the State, indicates that in pursuance to the policy of the State Government dated 19.7.2007, available in the record of W.P.No.10886/2008 as Annexure P/3, the Collector concerned issued instructions to the Gram Panchayat for appointment of a Panchayat Karmi. Accordingly, an advertisement was issued and on the basis of the same three persons applied. They were Shri Munnalal Lodhi - respondent No.7 in W.P.No.10886/08 and petitioner in W.P.No.12755/08; Smt. Pratibha Yadav petitioner in W.P.No.10886/08 and respondent No.6 in W.P.No.12755/08; and Shri Arvind Pandey respondent No.7 in both the cases. The Panchayat held a meeting to consider the candidature's on 21.8.2007 and prepared a merit list in accordance to the marks obtained. Munnalal Lodhi with 69.2% marks was placed at Serial No.1; Smt. Pratibha Yadav with 53% marks was placed at Serial No.2; and, Arvind Pandey with 45.8% marks was placed at Serial No.3. However, one of the members of the Panchayat pointed out that against Shri Munnalal Lodhi some criminal case is registered and, therefore, he should not be appointed. With regard to Smt. Pratibha Yadav, it was indicated that on account of certain dues of a Co-operative Bank against her in-laws and she being a lady, she may not be able to devote much time for the Panchayat. Accordingly, it was resolved that Arvind Pandey, who was the less meritorious candidate, may be appointed, he can devote much time for the work of the Panchayat. When the aforesaid resolution was sent to SDO, Banda for further confirmation by the competent authority, the SDO, Banda found that the resolution is not properly passed, the meritorious candidate has been ignored and the least meritorious candidate is appointed, which is not in accordance to the Policies and Circulars of the State Government dated 13.8.2007 Annexure P/13 in the record of W.P.No.10886/08. The SDO passed an order on 25.8.2007 quashing the entire resolution dated 21.8.07 and directed the Panchayat to hold a fresh meeting on 30.8.2007 and decide the matter. Accordingly, the Panchayat again convened a meeting on 20.8.2007 and vide resolution Annexure P/4, available in the record of W.P.No.10886/08, so also in the original file produced by Shri Rajesh Tiwari, resolved to appoint Shri Munnalal Lodhi, the most meritorious candidate. Accordingly, the resolution was forwarded to SDO, Banda, who registered a proceeding and from the proceedings, which were held before the SDO, as is evident from the proceedings available on record as Annexure P/6, in W.P.No.12755/08; the Panchayat was heard; Munnalal Lodhi, Smt. Pratibha Yadav and Arvind Pandey were also heard and after evaluating the entire circumstances, the SDO on 24.12.2007 recommended that as Munnalal Lodhi is facing a criminal trial for offence under sections 419, 420 read with 34 IPC and as the case is pending in the Sessions Court, he should not be appointed. Finding Smt. Pratibha Yadav to be a lady belonging to the OBC category and Serial No.2 in the merit list, recommendation was made to appoint her as a Panchayat Karmi. The recommendation was placed before the Collector and the Collector on 3.1.2008 ordered for appointing Smt. Pratibha Yadav vide Annexure P/6, and the powers of secretary were also conferred upon her. When this was done, two appeals were filed one by Munnalal Lodhi and another by Arvind Pandey. As far as Shri Arvind Pandey is concerned, he challenged the order passed by the SDO on 25.8.2007, whereby his appointment made vide resolution dated 21.8.07 was cancelled. The second appeal was filed by Munnalal Lodhi, interalia contending that he was more meritorious and therefore, he should be appointed and in rejecting his claim it was stated that SDO has committed an error. Both these appeals have been decided by this common order available as Annexure P/1 in W.P.No.10886/08 and the Commissioner found that in the light of certain orders passed by a Bench of this Court, in W.P.No.7752/2008 (Akhilesh Jain v. State of MP and others), available in the record of W.P.No.10886/2008 as Annexure P/12, order-dated 25.8.2007 passed by the SDO is unsustainable and, therefore, quashed the same. Thereafter, it was found that Munnalal Lodhi is facing a criminal case, therefore, he cannot be appointed. Against Smt. Pratibha Yadav many of the office bearers of the Panchayat had reservations with regard to the fact as to whether she can devote time to work for the Panchayat and finding Arvind Pandey to be the most suitable candidate, even though less meritorious, the Commissioner ordered for appointment of Arvind Pandey. This order is challenged by Munnalal Lodhi and Smt. Pratibha Yadav in these petitions.
3- Shri Puneet Shroti, learned counsel for the petitioner in W.P.No.10886/2008, emphasized that the subject matter of both the appeals were different and, therefore, the Commissioner committed error in clubbing together both the appeals and decided them. That apart, it was argued by him that the judgment of this Court in the case of Akhilesh Jain (supra), had no bearing in the present case and, therefore, it was not applicable. It was argued by him that in this case, this Court has not given any directions to make appointment contrary to the merit consideration, which is to be made as per Circular Annexure P/13, dated 13.8.07. Accordingly, on this count Shri Puneet Shroti sought for interference into the matter.
4- Shri Praveen Verma, learned counsel for Munnalal Lodhi in W.P.No.12755/08, submitted that as Munnalal Lodhi was the more meritorious candidate in accordance to the Circular Annexure P/13 dated 13.8.07, the more meritorious candidate should have been appointed and by rejecting the claim of this petitioner on the ground that a criminal case is registered against him, illegality is committed and, therefore, the order passed by the Commissioner is unsustainable.
5- That apart, both the counsel for the petitioners submit that the Commissioner committed a grave error in interfering with the reasonable resolution of the Gram Panchayat and by directing for appointment of Arvind Pandey, who had received only 45.8% marks and was the least meritorious candidate. It was emphasized that by appointing the least meritorious candidate the Commissioner has committed an illegality.
6- Shri Rajesh Tiwari, learned counsel for the State, has produced the entire original records, including the record of the Panchayat pertaining to passing of the resolutions dated 21.8.07 and 30.8.07, emphasized that the Commissioner having taken a reasonable stand, no interference is warranted.
7- Shri R.S. Yadav, learned counsel for the Arvind Pandey, supported the case of respondent No.7 in both the cases, and submitted that as both Munnalal Lodhi and Smt. Pratibha Yadav were disqualified, for reasons indicated by the Panchayat, in the resolution passed on 21.8.07, there is no illegality in the matter and the petitions are liable to be dismissed.
8- I have heard learned counsel for the parties and perused the records.
9- Before adverting to consider the rival submissions, it is thought appropriate to take note of the preliminary objection of Shri Puneet Shroti with regard to clubbing together of both the appeals and deciding them by a common order, passed by the Commissioner.
10- Appointment in question pertains to the same Gram Panchayat and in both the petitions petitioners were the claimant to the post and as the appointment were to the same post and both the petitioners and Shri Arvind Pandey were claiming the said post, I am of the considered view that in deciding the appeals together by a common order, the Commissioner has not committed any error and on that ground the order of the Commissioner does not warrant any interference.
11- As far as the ground raised by the petitioners with regard to non-applicability of the principles laid down in the case of Akhilesh Jain (supra), is concerned, a perusal of Annexure P/12 and the order- dated 7.7.2008 passed by the learned Bench of this Court in the said writ petition indicates that appointment to the post of Panchayat Karmi was initiated by Gram Panchayat Bandri and by resolution passed on 22.8.2007, one Shri Akhilesh Jain was directed to be appointed as a Panchayat Karmi. When the resolution was sent to SDO, Khurai, District Sagar for confirmation. The SDO quashed the resolution and remanded the matter to the Panchayat to conduct fresh proceeding. After taking note of the provisions of section 85(1) and 85(2) of the Panchayat & Gram Swaraj Adhiniyam, 1993, learned Judge in the said writ petition recorded a finding that the SDO under law i.e under section 85 of the Panchayat Raj and Gram Swaraj Adhiniyam 1993, has no jurisdiction or authority to quash a resolution of the Gram Panchayat. It was held that he can only suspend the resolution and thereafter under section 85(2) forward the resolution to the State Government or the nominated officer for its confirmation, revision, modification etc. Accordingly, holding that the SDO had no authority to set aside the resolution of the Gram Panchayat and remand the matter back for reconsideration, the writ petition was allowed.
12- In the present case also similar factual and legal question is existing. When the Gram Panchayat passed the first resolution on 21.8.07 and when it went to SDO, Banda for confirmation, the SDO quashed the resolution and remanded the matter back to the Gram Panchayat for holding a fresh meeting on 30.8.2007. Keeping in view the principle laid down in the case of Akhilesh Jain (supra), vide order passed on 7.7.08, the Commissioner found that the SDO could not do so and, therefore, he quashed the order-dated 25.8.07 passed by the SDO, setting aside the first resolution passed on 21.8.07 with regard to appointment of Shri Arvind Pandey. Even though the order passed by the learned Commissioner is not very happily worded, but in sum and substance the Commissioner has held that the SDO while exercising power under section 85(1) cannot quash a resolution of the Gram Panchayat and it was for this reason that he followed the principle laid down in the case of Akhilesh Jain (supra) and quashed the resolution dated 25.8.07. In doing so, the Commissioner has not committed any error. However, thereafter the Commissioner considered the second resolution dated 30.8.07, and the merits of the candidates and ordered for appointment of Arvind Pandey on the ground that Munnalal Lodhi is facing a criminal case; Pratibha Yadav's appointment is not approved by most of the Panchas and, therefore, Shri Arvind Pandey may be appointed. This in the considered view of this Court was not a proper approach. Once the resolution dated 21.8.07 was quashed, then the further direction of the SDO to hold a fresh meeting on 30.8.2007 would also be illegal in view of the order-dated 25.8.07 being illegal, the Commissioner, therefore, should have remanded the matter back to the Gram Panchayat for conducting a fresh meeting and decide the question afresh in accordance with law. Instead, the Commissioner took note of the resolution dated 30.8.07 and by giving various reasons, which were already available in the first resolution dated 21.8.07, ordered for appointment of Arvind Pandey. Even though the resolution dated 21.8.07 did recommend for appointment of Arvind Pandey, but as this resolution was passed by giving a total go by to the merit criteria and the requirement of the circular Annexure P/13 dated 13.8.07, the Commissioner should not have ignored the reasons given by the Gram Panchayat in its resolution dated 30.8.07 and should have infact remanded the matter back to the Gram Panchayat. Even in the resolution dated 30.8.07, the Gram Panchayat has recommended for appointment of Munnalal Lodhi on the ground that he is more meritorious, but the fact of the pending criminal case and his entitlement for appointment inspite thereof is not considered.
13- Accordingly, the question now is what is the relief that can be granted by this Court.
14- Admittedly, the Gram Panchayat in both the resolutions, which were passed on 21.8.07 and 30.8.07, had misdirected itself. The merit criteria has not been followed, which is the requirement of circular Annexure P/13 dated 13.8.07 and thereafter the claim of Pratibha Yadav is rejected without their being any justification, cogent in nature, for doing so.
15- Considering the totality of the circumstances and the fact that the resolutions passed by the Gram Panchayat is not in accordance to the requirement of the circular and policies of the State Government Annexure P/13 dated 13.8.07, and is not by considering the merit properly. As such, it is not a fit case where the order passed by the Commissioner and the resolutions should be quashed and the matter remanded back to the Gram Panchayat for convening a meeting afresh and decide the claim for appointment to the post of Panchayat Karmi afresh in accordance with law.
16- Accordingly, both the petitions are allowed. Order impugned Annexure P/1 dated passed by the Commissioner on 29.8.08 is quashed. The resolutions passed by the Gram Panchayat on 21.8.07 and 30.8.07 are also quashed and the SDO, Banda is directed to convene a meeting of the Gram Panchayat and ensure passing of a resolution for appointment on the post of Panchayat Karmi in accordance to law, within a period of two months from the date of receipt of certified copy of this order.
17- Till the aforesaid exercise is not completed, the person, who is working on the post as on date by virtue of the interim orders passed by this Court, shall continue to work.
18- Petitions stand allowed and disposed of with the aforesaid.