Madhya Pradesh High Court
Prahalad Singh Patel vs State Of M.P. And Ors. on 14 July, 1999
Equivalent citations: 2000(1)MPHT89
Author: C.K. Prasad
Bench: C.K. Prasad
ORDER C.K. Prasad, J.
1. In all these writ petitions filed under Article 226 of the Constitution of India, petitioners question the decision of the respondents by which they have been held to be disqualified to hold charge of Panchayat Secretaries of their respective Gram Panchayats, on the ground that they are related to one or the other office bearer of the Gram Panchayat.
2. Short facts giving rise to these writ petitions are that the petitioners were earlier appointed by their respective Gram Panchayats as the Panchayat Karmi as provided under Section 70 of the M.P. Panchayat Raj Act, 1993 (hereinafter referred to as 'the Act'). Later on, they were appointed as Panchayat Secretaries by the prescribed authority as contemplated under Section 69 (1) of the Act. In some of the cases these appointments have taken place prior to 7-1-1997, i.e., before coming into force of the Madhya Pradesh Panchayat Raj (Amendment) Act, 1996. However, in some cases these appointments have taken place after the aforesaid date. Further there is no controversy that petitioners in all these writ petitions are related to one or the other office bearer of the Panchayat.
3. Section 69 (1) of the Act prior to its amendment by the M.P. Panchayat Raj (Amendment) Act, 1996 (M.P. Act No. 2 of 1997) inter-alias provided that the State Government or the prescribed authority may appoint Secretary for Gram Panchayat or group of two or more Gram Panchayats. Section 15 of the Act No. 2 of 1997 added besides other provisions, a proviso in 69 (1) of the Act which provided that person, relative of any office bearer of the concerned Gram Panchayat shall not hold charge of Secretary of Gram Panchayat. Expression "relative" has also been explained. It is relevant here to state that the aforesaid amendment came into force on 7-1-1997. Section 15 of the Act No. 2 of 1997 which is relevant for the purpose is being quoted below :--
"15. Amendment of Section 69.--In Section 69 of the principal Act,--
(1) in Sub-section (1) after the first proviso, the following proviso shall be added, namely :--
"Provided further that a person shall not hold charge of a Secretary of Gram Panchayat, if such a person happens to be relative of any office bearer of the concerned Gram Panchayat. Explanation :-- For the purpose of this sub-section the expression 'relative' shall mean father, mother, brother, sister, husband, wife, son, daughter, father-in-law, mother-in-law, brother-in-law, sister-in-law, son-in-law, or daughter-in-law."
Section 69 (1) of the Act, after the amendment reads as follows :--
"69. Appointment of Secretary and Chief Executive Officer.--(1) The State Government or the prescribed authority may appoint a Secretary for a Gram Panchayat or group of two or more Gram Panchayats :
Provided that the person holding the charge of a Secretary of Gram Panchayat immediately before the commencement of this Act shall continue to function as such till a Secretary is appointed in accordance with this Section :
Provided further that a person shall not hold charge of a Secretary of Gram Panchayat, if such a person happens to be relative of any office bearer of the concerned Gram Panchayat.
Explanation :--For the purpose of this sub-section the expression 'relative' shall mean father, mother, brother, sister, husband, wife, son, daughter, father-in-law, mother-in-law, brother-in-law, sister-in-law, son-in-law, or daughter-in-law."
4. Before the aforesaid proviso was added in Section 69 (1) of the Act, the State Government issued instruction known as Panchayat Karmi Yojna in exercise of the powers conferred under Section 70 (1) read with Section 69 (1) of the Act, on 12-9-1995. Clause 2.4 of the Panchayat Karmi Yojna inter-alia provides for appointment of Panchayat Karmi by the Gram Panchayat and it further provided that such Panchayat Karmis be declared Panchayat Secretaries. Panchayat Karmi Yojna has provided for the qualification for appointment as Panchayat Karmi, the process of selection as also the manner in which the Panchayat Karmis can be removed.
5. After coming into force of Act No. 2 of 1997, State Government on 18-6-1997 wrote to the Collectors drawing their attention to the amendment brought in Section 69 (1) of the Act and stated that the aforesaid amendment has not been made with retrospective effect, hence amended provision shall not be applicable to the Panchayat Secretaries appointed prior to 7-1-1997. Aforesaid communication further directed the Collectors that those Panchayat Secretaries who were appointed later than 7-1-1997 and whose relations are office bearer of Panchayat, their appointment as Secretaries be cancelled by the prescribed authority after due enquiry. Later on, the State Government issued another letter on 9-2-1999 addressed to all the Collectors stating therein that amendment in Section 69 (1) of the Act has not been made with retrospective effect and it has come into force on 7-1-1997. State Government in the aforesaid communication opined that after 7-1-1997 only those persons can be appointed as Panchayat Secretaries when they do not suffer disqualification, as provided under the proviso to Section 69 (1) of the Act. It further went on to say that in relation to those Panchayat Secretaries who were appointed prior to 7-1-1997 enquiry has to be made as to whether they suffer disqualification provided under second proviso to Section 69 (1) of the Act. State Government directed the Collectors that on such an enquiry if it is found that they suffer from disqualification, their appointment as Panchayat Secretaries be cancelled. It seems that in the light of the aforesaid decision of the State Government enquiry was made and the petitioners having been found related to one or the other office bearer of the Gram Panchayat they have been disqualified to hold the post of Panchayat Secretary, and their service as Panchayat Secretaries have been terminated.
6. Learned counsel of those petitioners who were appointed as Panchayat Secretaries prior to 7-1-1997 contend that at the time they were appointed there was no impediment in their way and the disqualification, which has been provided under second proviso to Section 69 (1) of the Act, being not retrospective, their cancellation of appointments as Panchayat Secretaries are illegal. They submit that Section 15 of Act No. 2 of 1997 which has brought about amendment in Section 69 of the Act cannot be said to be retrospective. They submit that every amendment has to be read as prospective unless specifically or by necessary implication the legislature makes the same to be retrospective. Learned counsels contend that there is nothing in the scheme which directly or by necessary implication contemplates that Section 15 of Act No. 2 of 1997 is retrospective in nature. In support of this submission reliance has been placed on a decision of the Supreme Court in the case of State of Bombay (now Maharashtra) v., Vishnu Ramchandra, (AIR 1961 S.C. 307), and my attention has been drawn to the following passage from paragraph 6 of the judgment--
"The cardinal principle is that statutes must always be interpreted prospectively, unless the language of the statutes makes them retrospective, either expressly or by necessary implication. Penal statutes which create new offences are always prospective, but penal statutes which create disabilities, though ordinarily interpreted prospectively, are some times interpreted retrospectively when there is a clear intendment that they are to be applied to past events."
7. In my opinion the real issue in the case is as to the scope of second proviso to Section 69 of the Act, having regard to its language and the object discernible from the said provision. Second proviso to Section 69 (1) of the Act provides that 'a person shall not hold charge of Secretary' if such a person happens to be relative of any office bearer of the concerned Gram Panchayat. It is relevant here to state that Panchayat Secretary is an important functionery of the Gram Panchayat and he has to perform various statutory functions which include recording of minutes, proceeding and decision of every meeting of Gram Sabha. It seems that the legislature in enacting the aforesaid provision thought that any nexus between the office bearer of a Gram Panchayat and the Panchayat Secretary shall destroy the basic fabric on which the institution of Gram Panchayat is based or it may lead to corruption and nepotism, it enacted in mandatory term that a person shall not hold charge of a Secretary of Gram Panchayat if such a person happens to be the relative of any office bearer of Gram Panchayat.
8. A plain reading of the aforesaid provision makes it clear that continuance of a person as a Panchayat Secretary is prohibited if such a person happens to be the relative of any office bearer of Gram Panchayat. Thus, notwithstanding the fact that in relation to the Panchayat Secretaries appointed prior to 7-1-1997, there was no impediment in their way to hold charge of the office of the Secretary, but in view of the legislative mandate discernible from second proviso to Section 69 (1) of the Act, Panchayat Secretaries who are related to any office bearer of the Gram Panchayat cannot be allowed to hold charge of the Secretary. Use of the expression 'shall' in the second proviso referred to above raises a presumption that prohibition of a relative of the office bearer of the Gram Panchayat to hold charge of the Secretary is imperative. Another reason to hold that a relative cannot be allowed to hold charge of the Secretary is the use of the negative expression in the proviso. It is well settled that prohibitory or negative words can rarely if ever be directory.
9. Thus, there is definite command of the legislature by enacting the aforesaid provision to prohibit a relative to hold charge of Secretary of Gram Panchayat. Therefore, in my opinion Panchayat Secretaries who were appointed even prior to 7-1-1997 i.e., before coming into force of second proviso to Section 69 of the Act, in view of the mandatory and imperative nature of legislation they cannot be allowed to hold charge of the office of the Secretary. The word 'happens' clearly connotes that at given point of time if the person happens to be relative of any office bearer of the Gram Panchayat, he shall not hold charge of the Secretary, notwithstanding the fact that at the time when such appointment was made none of the office bearer was his relative. Provision under consideration is designed to protect the public against possible nexus between the Panchayat Secretary whose relative is the office bearer of the Gram Panchayat. Having regard to the real issue as to the scope of the second proviso to Section 69 (1) of the Act and having regard to its language and the object discernible, I am of the opinion that persons coming within the ambit of relative after coming into force of the aforesaid provision, i.e., 7-1-1997 at any point of time, cannot be permitted to hold charge of the Secretary of the Gram Panchayat, notwithstanding the fact that such appointment was made prior to 7-1-1997. No distinction can be made between persons appointed prior to 7-1-1997 or later and all such appointees whose relative is office bearer of Gram Panchayat cannot be allowed to hold charge of Panchayat Secretary.
10. Having answered the aforesaid question against the petitioners, I proceed to consider as to whether such Panchayat Secretaries can still be allowed to continue as Panchayat Karmi. It is to be borne in mind that Section 70 of the Act provides for appointment of officers and servants by Panchayat as it considers necessary for the discharge of its duties with previous approval of the prescribed authority. Section 70 (2) of the Act provides for prescription of qualification, method of recruitment, salaries, leave, allowances and other conditions of service including disciplinary matters. In exercise of the aforesaid powers the State Government has issued Panchayat Karmi Yojna dated 12-9-1995. So far as the power of appointment of a Secretary of a Gram Panchayat is concerned, same is conferred on the State Government or the prescribed authority. Paragraph 2.4 of the aforesaid Panchayat Karmi Yojna provides for that the person appointed by the Gram Panchayat in accordance with the procedure prescribed under the Panchayat Karmi Yojna shall be known as Panchayat Karmi. It further provided that Panchayat Karmis so appointed are declared Panchayat Secretaries. Paragraph 5 of the Panchayat Karmi Yojna provides for fixation of monthly honorarium for the Panchayat Karmis by the General Body of the Gram Panchayat taking into consideration the work load of the Panchayat and its financial position. This clause further provides that the State Government will grant in aid at the rate of Rs. 500/- for each of the Panchayat Karmi. Clause 7 of the Panchayat Karmi Yojna provides for disciplinary action against the Panchayat Karmi.
11. From the reading of Sections 69 and 70 of the Act as also the various clauses of the Panchayat Karmi Yojna, I have no manner of doubt that Panchayat Karmi and Panchayat Secretary are different and distinct entity. A person who is appointed as Panchayat Karmi may be appointed as the Panchayat Secretary, but it is not necessary that every Panchayat Karmi is the Panchayat Secretary. A Gram Panchayat may according to its work load choose to appoint more than one Panchayat Karmis on such monthly honorarium as decided by its general body taking into consideration the work load and the financial position. The State Government is obliged to grant in aid at the rate of Rs. 500/- for each of such Panchayat Karmis appointed.
12. Petitioners claim that they were earlier appointed as Panchayat Karmis by their respective Gram Panchayats and, later on, were appointed as its Secretaries. Second proviso to Section 69 (1) of the Act being mandatory in character; petitioners cannot be allowed to hold charge of the Secretaries. Still on my conclusion that Panchayat Karmis and Panchayat Secretaries are not synonymous with each other, as also there is no legislative or other impediment in continuance of such persons as Panchayat Karmis appointed in accordance with law, they may not be allowed to hold the charge of the Secretaries, but they cannot be removed from the office of Panchayat Karmi except as a measure of punishment as provided under Clause 7 of the Panchayat Karmi Yojna or any other ground permissible under the law. It is made clear that I have not gone into the question of validity of the appointment of petitioners as Panchayat Karmi.
13. Result of the aforesaid discussion is that the petitioners cannot be allowed to hold charge of the Panchayat Secretary and as such the impugned decision of the respondents communicating to the petitioners that they are disqualified to perform the function of the Panchayat Secretary cannot be interfered with. However, petitioners cannot be prohibited from functioning as Panchayat Karmis only on the ground that they are relative of office bearer of Gram Panchayat. This may not be construed to mean that respondents cannot go into the question of validity of the appointment of petitioners as Panchayat Karmis. However, respondents cannot hold the petitioners appointment as Panchayat Karmi illegal only on the ground that they are relative of office bearer of Gram Panchayat.
14. All the writ petitions stand dismissed with the aforesaid observation. No cost.