Allahabad High Court
Santosh Kumar Verma vs State Of U.P. And 5 Others on 23 May, 2016
Author: Pradeep Kumar Singh Baghel
Bench: Pradeep Kumar Singh Baghel
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 4 Case :- WRIT - A No. - 23609 of 2016 Petitioner :- Santosh Kumar Verma Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Pradeep Chandra,Pratik Chandra Counsel for Respondent :- C.S.C.,Gaurav Singh Tomar Hon'ble Pradeep Kumar Singh Baghel,J.
The petitioner is a Gram Panchayat Adhikari. He has been placed under suspension vide order dated 30.04.2016.
The submission of the learned counsel for the petitioner is that the Zila Panchayat Raj Adhikari is not the disciplinary authority as under the amended rule, the District Magistrate is the appropriate authority to place the petitioner under suspension. Hence, the order of the suspension is without jurisdiction.
Supplementary affidavit filed today is taken on record.
Learned counsel for the petitioner has placed reliance on several interim orders which were brought on record through supplementary affidavit, passed by this Court in Writ-A No.55404 of 2012 (Mithilesh Kumar Srivastava v. State of U.P. and others), Writ-A No.51432 of 2013 (Rajman v. State of U.P. and others), Writ-A No.35012 of 2015 (Harvansh Kumar v. State of U.P. and others), Writ-A No.49056 of 2012 (Santosh Kumar V. State of U.P. and others) and Writ-A No.53791 of 2012 (Vishnu Dutt Sharma Gram Panchayat Adhikari v. State of U.P. and others). In one of the cases i.e. Santosh Kumar (Supra) this Court has considered in detail the statutory provision which indicate that the prior approval of the District Magistrate appears to be necessary. The order dated 17.10.2012 passed in the case of Santosh Kumar (Supra) is quoted hereinbelow.
"Learned Standing counsel who had accepted notice on behalf of the respondents submits that as per the Uttar Pradesh Gram Panchayat Adhikari Service Rules, 1978 as amended in 1989 clearly provides that the appointing authority shall be the District Panchayat Raj Officer.
Under the Uttar Pradesh Gram Panchayat Adhikari Rules, 1978 which have been framed under Article 309 of the Constitution of India the District Panchayat Raj Officer is the appointing authority of the Gram Panchayat Adhikari and as such he is also the disciplinary authority entitle to pass the order of suspension. However, it appears that subsequently another set of rules have been framed namely Gram Panchayat Vikas Adhikari Bharti Niyamawali, 1999 in exercise of power under Section 110 read with Section 25 and 25'A' of the U.P. Panchayat Raj Adhiniyam, 1947. The said rules provide that District Magistrate of the district concerned shall be the prescribed authority. The post of Gram Panchayat Vikas Adhikari shall be created by the Gram Panchayat concerned with the prior approval of the prescribed authority i.e. the District Magistrate. As regards the power to appoint and to take disciplinary action against the Gram Panchayat Vikas Adhikari, the said rules provide that the power would vest in the Gram Panchayat. Rule 8 of the aforesaid Rules of 1999 clearly provides that the Gram Panchayat shall exercise complete administrative control over the Gram Panchayat Vikas Adhikari and it alone shall have the power to take disciplinary action and to remove him from service on the resolution of the Administrative Committee of the Gram Panchayat. Thus, under the aforesaid Rules of 1999 neither the District Panchayat Raj Officer nor the District Magistrate who is only designated as the prescribed authority has any competence to pass any order of suspension of the Gram Panchayat Vikas Adhikari. The said Rules of 1999 nowhere provides that they have been issued in supersession of previous rules on the subject or that the earlier rules 1978 stand repealed by the same.
In view of the aforesaid facts and circumstances treating the Gram Panchayat Adhikari and Gram Panchayat Vikas Adhikari to be one and the same as informed by counsel for the parties, a question of law as to whether the U.P. Gram Panchayat Adhikari Rules, 1978 shall continue to apply or the U.P. Gram Panchayat Adhikari Bharti Niyamawai, 1999 would over ride the said rules and would apply is required to be adjudicated first before deciding as to who is the appointing/disciplinary authority to take action against the Gram Panchayat Adhikari/Gram Panchayat Vikas Adhikari.
Accordingly, learned Standing counsel is allowed a month's time to file counter affidavit clarifying the position as stated above. Two weeks thereafter are allowed to the petitioner for filing rejoinder affidavit.
List for admission/final disposal on the expiry of the above period.
Considering the earlier interim orders passed by the various benches in respect of the similar and identical matters and the nature of allegations on which the petitioner has been suspended, as an interim measure it is provided that the operation of the impugned order dated 25.7.2012 shall remain stayed until further orders of this Court.
However, it shall be open for the respondents to complete the departmental enquiry and to pass final orders as expeditiously as possible."
Tag this writ petition with Writ-A No.49056 of 2012 (Santosh Kumar v. State of U.P. and others).
Learned Standing Counsel is granted six weeks time to file counter affidavit. Rejoinder affidavit, if any, may be filed within a week thereafter.
In view of the order passed in similar matter in Santosh Kumar case (Supra), till the next date of listing, the effect and operation of the impugned orders dated 30.04.2016 and 02.05.2016 passed by respondent nos. 3 and 5 shall remain stayed.
List this case on 22.08.2016.
However, it is made clear that the disciplinary proceedings are not stayed by the interim order.
Order Date :- 23.5.2016 AU