Patna High Court
Indrajeet Mishra vs State Of Bihar And Ors. on 5 August, 1993
Equivalent citations: AIR1995PAT54, AIR 1995 PATNA 54, (1993) 2 PAT LJR 772
Author: Aftab Alam
Bench: Aftab Alam
ORDER Aftab Alam, J.
1. A Mukhiya has the right to preside over a meeting of the executive committee of the Gram Panchayat in terms of Rule 20 of the Bihar Conduct of Business of Panchayat Rules, 1960. He also has a second or casting vote (vide Rule 26) in case of equality of votes among the members Of the executive committee. Does a Mukhiya have the right to exercise the second or casting vote in favour of his son at a meeting of the Executive Committee for appointment to the post of the Chief Officer (Dalpati) of the village Volunteer Force? This is one of the questions failing for consideration in this application.
2. The facts of this case can be summarised as follows: The petitioner claims that initially he was selected for appointment as Dalpati of Bhatma Neharwa Gram Pan-chayat by a resolution dated 15-2-1988 of the Executive Committee of the Gram Panchayat and his name was duly forwarded to the District Panchayat Officer, respondent No. 3 for his approval in terms of Rule 4 of the Bihar Panchayat Village Volunteer Force, Rules, 1949. It appears that at this stage respondent No. 4 made a complaint before the District Panchayat Raj Officer that he had been kept out of consideration to favour the petitioner. This led to; a controversy which was enquired, into by different officials. One need not go into those details as they are no longer relevant for the purpose of this application. Suffice it to say that the controversy led to the District Panchayat Raj Officer issuing a notice dated 6-5-1989 asking the members of the Executive Committee to assemble in his office chamber on 24-5-1989 for making a selection between petitioner and respondent No. 4. The aforesaid notice issued by the District Panchayat Officer was challenged by the petitioner before this Court in CWJC No. 5075 of 1989. That writ petition was disposed of at the stage of admission itself by order dated 11-8-1989 and a copy of that order is to be found at Annexure 3. As regards the petitioner's case that he had been appointed in the meeting of the Executive Committee held on 15-2-1988, it was conceded on his behalf that that claim would not be pressed before the Court and the concession was recorded in the order in the following words:
"The petitioner has, however, prayed that he had been appointed as Dalpati. This is denied in the counter-affidavit filed on behalf of the respondents. Mr. Verma, learned counsel for the petitioner has very fairly submitted that he is not pressing that part of the prayer."
This Court upheld the petitioner's plea that the impugned notice issued by the District Panchayat Officer was contrary to law and it accordingly quashed the same. Consequently the writ petition was disposed of with the following directions:
"We accordingly direct the District Panchayat Officer to personally invite fresh application for appointment of Chief Officer (Dalpati) from the Gram Panchayat concerned. After receiving applications the District Gram Panchayat Officer shall convene a meeting of the Executive Committee which will consider the applications which would have been received and shall make appointment of the Chief Officer (Dalpati) in accordance with law under Section 26 of the Gram Panchayat Act. The petitioner and respondent No. 4 shall have the liberty to apply afresh."
Following this order, the District Panchayat Raj Officer issued a notice dated 7-8-1989 inviting applications to be submitted at his office by 7-9-1989. A copy of this notice is at Annexure 4. The meeting of the Executive Committee of the Gram Panchayat, in terms of the directions of this Court was earlier fixed on 19-9-1989. It was, however, postponed to 26-9-1989 by a notice dated 18-9-. 1989 issued by respondent No. 3. A copy of this notice is Annexure 5.
3. Finally a meeting of the Executive Committee was held in the Chamber of respondent No. 3 on 26-9-1989 which was attended by six members of the committee, including the Mukhiya. The meeting was presided over by the Mukhiya. The proceedings of the meeting was written down in the form of minutes, a photo stat copy of which has been enclosed as Annexure 6. It is recorded in the minutes that there were applications of five candidates before the Committee and the application of respondent No. 4 was presented to it at the time of meeting. It is however, clarified that from the office records of the District Panchayat Officer, it appeared that the application was submitted on 12-9-1989 itself. From the minutes, it further appears that the members of the Executive Committee were equally divided on the question of selection between the petitioner and respondent No. 4; three members wanted respondent No. 4 while the other three members, including the Mukhiya, were in favour of selecting the petitioner. The minutes then proceed to take note of the qualifications of the two candidates. Thereafter resolution No. 4 records that all the members were advised to make the selection within one hour. It, however, appears that the equal division among the members of the Executive Committee rigidly persisted and neither the petitioner nor respondent No. 4 could get a majority support. Under the circumstances, the members of the Executive Committee agree among themselves to authorise the District Panchayat Raj Officer to make the selection for appointment of Dalpati for the Gram Panchayat. The proceedings of the meeting were thus recorded and were duly signed by the Mukhiya.
4. It is to be noted that in course of the meeting held on 26-9-1989 it did not occur to the Mukhiya to assert his right for the second or casting vote as the President of the Meeting. It, however, appears that on 12-12-1989 he addressed a communication to respondent No. 3 wherein he purported to exercise his second or casting vote in favour of the petitioner. A copy of this communication is to be found at Annexure 7. Respondent No. 3 made note in the margin of this communication stating that since the Mukhiya and the committee in the meeting held on 26-9-1989 had authorised him to make the selection, it was no longer open for the Mukhiya to exercise his second or casting vote. Later on respondent No. 3 by his letter No. 45, dated 23-1-1990 appointed respondent No. 4 as Dalpati of the concerned Gram Panchayat, A copy of the aforesaid letter dated 23-1-1990 is to be found at Annexure 8 and it is this letter which comes under challenge in this application.
5. Before concluding the facts, it is to be noted that the petitioner is no other but the own son of the Mukhiya.
6. Mr. B.P. Verma, learned counsel appearing on behalf of the petitioner submitted that respondent No. 4 had not made any application pursuant to the notice dated 7-9-1989 and his application was wrongly placed for consideration before the Executive Committee at the instance of the District Panchayat Raj Officer. The submission is noted only to be rejected. The notice inviting applications clearly stated that the applications were to be submitted at the office of the District Panchayat Raj Officer. Even the minutes of the meeting of the Executive Commttee noticed that the office records of respondent No. 3 showed that the application was submitted in the office on 12-9-1989. Moreover, a receipt showing submission of application on 12-9-1989 has been enclosed as Annexure R/2 with the counter-affidavit, filed by respondent No. 4 in this case. In the face of these materials, I find no substance in this objection raised on behalf of the petitioner.
7. Mr. Verma then urged me to undertake a scrutiny of the various qualifications possessed by the two candidates and pur-suaded me to hold that the petitioner, being a more suitable candidate, should have been selected by the Committee. Such an exercise being compeletely foreign to the limits of the writ jurisdiction, I declined to enter into a consideration of the relative merits of the two candidates. Thereupon Mr. Verma concentrated his submissions on the following two questions :
8. Referring to Section 26 of the Bihar Panchayat Raj Act, 1947 and Rule 4 of the Bihar Panchayat Village Volunteer Force Rules, 1949 Mr. Verma first submitted that it was the executive committee of the panchayat which alone was required to make the selection for appointment and the action of the members of the Executive Committee in authorising the District Panchayat Raj Officer in that regard was patently bad and untenable in law. Mr. Verma submitted that if the law laid down a procedure for selection and authorised a particular body to make the selection, it was not competent for that body to delegate its power to some other authority and in doing so it only abdicated a duty cast upon it by law. Secondly, referring to Rules 20 and 26 of the Bihar Conduct of Business of panchayat rules, 1960, Mr. Verma submitted that the Mukhiya as the President of the meeting was plainly entitled to a second or casting vote and this right having been conferred upon him by the statutory rules, he could not have been denied the exercise of this right.
9. I propose to take up the second submission first for consideration. At this stage, it will be useful to take a look at Rules 20 and 26 of the Conduct of Business of Panchayat Rules, 1960. The two rules are as follows:
"20. The Mukhiya or in his absence, the Up-Mukhiya shall preside at the meetings of the Executive Committee :
Provided that a meeting of the Executive Committee specially convened for passing a vote of no-confidence against the Mukhiya the members of the executive committee shall elect one from amongst themselves to preside at such meeting of the Executive Committee."
"26. The President of a meeting of the Executive Committee shall have the right of single vote but, in the case of equality of votes, he shall have a second or casting vote. He shall be responsible for regulating the orderly conduct of business brought foward before the Executive Committee:
Provided that the President shall not exercise his second or casting vote if his own election to an office or his own conduct in any other manner connected with the 'Panchayat' is involved."
From Rule 26, it is manifest that the second or casting vote is not an unqualified right of the President and the President is not to exercise his second or casting vote if his own election to office or his own conduct, in any manner connected with the panchayat, was involved. In the facts and circumstances of this case, I am of the considered opinion that there was no question for the Mukhiya to have a second or casting vote. In fact it was not proper for him to have participated in the meeting and espoused the candidature of his son, the; petitioner, let alone the offending demand to exercise the right of casting vote. On 26-9-1989, the Executive Committee was meeting as a Selection Committee and hence propriety demanded that he should have kept himself away from the meeting where the question of selection of his own son was under consideration. This is not to suggest that any one should suffer any handicap on account of being the son of a Mukhiya or any other authority but in case such a person was superior in merits, there is no reason why he should not be selected by the other remaining members of the Committee. On the other hand it cannot be over emphasised that no person should be appointed simply because he is the son of the Mukhiya (or any other authority); nor should an impression be created that the appointment was based on the candidates' relationship with the Mukhiya, What has been said regarding administration of justice can also be said, with slight modification, in respect of public employment:
"appointments should not only be made on the basis of a fair procedure but they should also appear to have been so made."
The lifeless letters of law alone are not sufficient for the survival and functioning of the basic democratic institutions. What is required equally, if not more, to sustain these institutions is the peoples' trust and confidence. Now, the spectacle of a Mukhiya not only actively spousing the candidature of his son as the President of the Selection Committee but also insisting to exercise his right of casting vote is surely not going to reinforce peoples' faith in the appointments made by the Gram Panchayat. I am accordingly of the firm opinion that the Mukhiya committed an impropriety in participating in the meeting where the question of selection of his son was under consideration. When his participation and casting even the first vote was improper, there cannot be any question for him to cast the second vote and I think such restraint must be read into the proviso to Rule 26.
10. Now coming to the first submission advanced by Mr. Verma that the Executive Committee was not right in authorising respondent No. 3 to make the selection on its behalf, I am of the view that as an abstract proposition, the submission is quite sound and no fault can be found with it. But in the given facts and circumstances the point raised by him can be answered in more ways than one. I have already held that it was improper on the part of the Mukhiya to participate in the meeting and to cast his vote in favour of his son. If that vote is discounted, then respondent No. 4 was clearly in a majority of 3 to 2. Specondly, it is to be noted that in the Executive Committee there was a rigid tie which could not be resolved even after an hour of deliberation. It is further to be noted that in terms of Rule 4, the District Panchayat Officer is at least the approving authority in respect of the selection made by the Executive Committee. Under the circumstances, if the Executive Committee entrusted the matter to the Panchayat Raj Officer, I see no reason to interfere in the peculiar facts and circumstances of this case.
11. For the reasons stated, I find the petitioner not entitled to any relief and I see no substance in this application. This application is accordingly dismissed. There shall, however, be no order as to costs.