IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JULY, 2019 PRESENT THE HON’BLE MR. ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE H.T. NARENDRA PRASAD WRIT APPEAL NO.386/2019 (S-RES) BETWEEN:
SMT. LAVANYA K H W/O NAGESH D/O HANUMANTHARAYAPPA AGED ABOUT 30 YEARS GOKULA EXTENSION NEAR TALUK OFFICE KORATAGERE TOWN TUMKUR DISTRICT-572102 ... APPELLANT (BY SRI JAYAKUMAR S. PATIL, SENIOR COUNSEL A/W SRI PRUTHVI WODEYAR, ADVOCATE) AND:
1. THE CHIEF EXECUTIVE OFFICER ZILLA PANCHAYATH TUMAKURU-572102 2. THE EXECUTIVE OFFICER TALUK PANCHAYATH KORATAGERE TUMAKURU DISTRICT-572102 3. THE PANCHAYATH DEVELOPMENT OFFICER TUMBADI VILLAGE PANCHAYATH TUMBADI KORATAGERE TALUK TUMAKURU DISTRICT-572102 4. THE PRESIDENT TUMBADI VILLAGE PANCHAYATH TUMBADI KORATAGERE TALUK TUMAKURU DISTRICT-572102 5. SMT. LALITHAMMA D/O NARAYANAPPA TUMBADI VILLAGE KORATAGERE TALUK TUMAKURU DISTRICT-572102 ... RESPONDENTS (BY SRI A NAGARAJAPPA, ADVOCATE FOR R-1 & 2; SRI MOHAN S, ADVOCATE FOR C/R-3;
SRI HARISCHANDRA M, ADVOCATE FOR R-5; SERVICE OF NOTICE TO R-4 IS ACCEPTED V/O DATED 29.05.2019) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE ORDER DATED 11/01/2019 PASSED BY THE LEARNED SINGLE JUDGE IN W.P.NO.35739/2018 AND ALLOW THE WRIT PETITION.
THIS WRIT APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned Senior Counsel appearing for the appellant, the learned counsel appearing for the third respondent and the learned counsel appearing for the fifth respondent.
2. By the impugned order, the learned Single Judge has dismissed the writ petition filed by the present appellant for challenging the order dated 10th July 2018 passed by the Chief Executive Officer of the Zilla Panchayat (first respondent) on an appeal preferred by the fifth respondent under Section 113 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (for short ‘the said Act’). A copy of the appeal preferred by the fifth respondent is placed on record by the learned counsel appearing for the third respondent. By the said order, the first respondent dismissed the appeal preferred by the fifth respondent. The first respondent further proceeded to cancel the order of appointment of the present appellant.
3. The submission of the learned Senior Counsel appearing for the appellant is that the appeal before the first respondent was confined to the order of dismissal of the fifth respondent and in the appeal, the issue regarding the validity of the appointment of the appellant could not have been considered. He would, therefore, submit that the order passed by the first respondent to that extent is illegal.
4. The learned counsel appearing for the third respondent supported the order passed by the first respondent by pointing out that in exercise of the jurisdiction under Section 113 of the said Act, the first respondent could have gone into the issue of the legality and validity of the appointment of the appellant as Data Entry Operator.
5. The learned counsel appearing for the fifth respondent states that the fifth respondent has also challenged the order dated 10th July 2018 passed by the first respondent as her appeal has been dismissed.
6. We have carefully considered the submissions.
Section 113 of the said Act reads thus:
“113. Appointment and control of employees.- (1) Subject to the provisions of Sections 111 and 112 the Grama Panchayat may, with the prior approval of the Chief Executive Officer appoint other employees of the Grama Panchayat and pay their salaries from the Grama Panchayat Fund:
Provided that in making appointments the appointing authority shall reserve posts for the Scheduled Castes, the Scheduled Tribes and other socially and educationally backward classes of citizens in the same manner and to the same extent as is applicable for the recruitment to posts in the State Civil Services.
(2) The Panchayat Development Officer may, by order, fine or withhold, the increment of any employee appointed by the Grama Panchayat.
(3) The Grama Panchayat may reduce in rank, remove or dismiss any employee appointed by it.
(4) An appeal shall lie against an order passed by the Panchayat Development Officer under sub-section (2) to the Executive Officer and against an order passed by the Grama Panchayat under sub-section (3) to the Chief Executive Officer.
(5) Any appeal under sub-section (4) pending before the Mandal Panchayat or the Zilla Parishad on the date of commencement of the Karnataka Panchayat Raj Act, 1993, shall stand transferred respectively to the Executive Officer and the Chief Executive Officer and such appeal shall be decided by them as if it had been filed before them.”
7. We have perused the memorandum of appeal preferred by the fifth respondent before the first respondent. What was invoked was the appellate power of the first respondent under sub-section (4) Section 113 of the said Act. Perusal of the memorandum of appeal shows that what was challenged was a show cause notice issued to the fifth respondent and also the order of termination of employment issued to her.
8. As can be seen from sub-section (4) of Section 113 of the said Act, an appeal is maintainable before the first respondent against an order passed by the Grama Panchayat under sub-section (3). Sub-section (3) confers power on the Grama Panchayat to reduce in rank, remove or dismiss any employee appointed by it. Thus, an appeal is maintainable under sub-section (4) of Section 113 only against an order against any employee passed by the Grama Panchayat to reduce him in rank, or to remove or dismiss him. Appeal is not available for challenging an order of appointment made by the Grama Panchayat.
9. Perusal of the order passed by the first respondent shows that he has gone into the issue of validity of the order of appointment of the present appellant while dismissing the appeal preferred by the fifth respondent. The first respondent purported to cancel the order of appointment of the appellant which was certainly beyond the scope of appeal under sub-section (4) of Section 113 of the said Act. It is well settled that an appeal is a creation of a statute. An Appellate Authority does not get inherent power to entertain an appeal against an order which is not made expressly available under the statute. Therefore, in our view, the first respondent committed an error by going into the legality and validity of the appointment of the appellant and by purporting to cancel the appointment of the appellant.
10. Perusal of the order of the learned Single Judge shows that he has also gone into the merits of the appointment of the appellant and has recorded a finding that the appointment was fraudulent. In our view, as the writ petition was filed challenging the order of the Appellate Authority on the ground that the direction to cancel the appointment of the appellant was without jurisdiction, it was not appropriate for the writ Court to go into the question about the manner in which the appellant was appointed.
11. Therefore, the appeal must succeed in part and we pass the following order:
(i) The impugned order dated 11th January 2019 passed by the learned Single Judge is set aside;
(ii) The order dated 10th July 2018 passed by the first respondent in the Appeal bearing Case No.106/2014-15 is set aside only to the extent to which a direction has been issued cancelling the appointment of the appellant;
(iii) As the same order is subject matter of challenge by the fifth respondent insofar as the order of termination of the fifth respondent is concerned, we specifically make it clear that we have made no adjudication on the issue of the legality and validity of the order of termination passed against the fifth respondent. The said issue will be decided in the pending writ petition filed by the fifth respondent;
(iv) We also make it clear that it will be always open for the concerned authorities to proceed against the appellant in accordance with law, if according to their case, the appointment of the appellant was not lawful;
(v) The appeal is partly allowed on the above terms.
The pending interlocutory application does not survive and is accordingly disposed of.
Sd/- CHIEF JUSTICE Sd/- JUDGE bkv