IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT APPEAL NO. 3248 OF 2019 (S-RES) BETWEEN:
SRI.K.K.RAJU S/O KRISHNAPPA AGE: 37 YEARS, OCC: PEON BEGUR GRAMA PANCHAYAT R/O BEGUR – 577 427.
HOSUR HOBLI, SHIKARIPURA TALUK SHIVAMOGGA DISTRICT.
... APPELLANT (BY SHRI. K.MANJUNATHA RAO BHONSLE, ADVOCATE) AND:
1. THE STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY DEPT. OF RURAL DEVELOPMENT AND PANCHAYAT RAJ, M.S.BUILDING VIDHANA VEEDHI BENGALURU – 560 001.
2. THE CHIEF EXECUTIVE OFFICER ZILLA PANCHAYAT POST BOX NO.127 KUVEMPU ROAD SHIVAMOGGA – 577 201.
3. THE EXECUTIVE OFFICER TALUK PANCHAYAT SHIKARIPURA – 577 524 SHIVAMOGGA DISTRICT.
4. THE PANCHAYAT DEVELOPMENT SECRETARY BEGUR GRAMA PANCHAYAT BEGUR – 577 524.
SHIKARIPURA TALUK SHIVAMOGGA DISTRICT.
... RESPONDENTS (BY SHRI. I.THARANATH POOJARY, AGA FOR R-1 SHRI. B.J. SOMAYAJI, ADVOCATE FOR R-2 TO R-4) ---
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE ORDER DATED : 26.07.2019 IN WP.NO. 12866/2019 (S-RES) PASSED BY THE LEARNED SINGLE JUDGE BY ALLOWING THE WRIT PETITION FILED BY THE APPELLANT AND ETC.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel appearing for the appellant and the learned counsel appearing for Respondents 2 to 4.
2. The challenge in this appeal is to the order dated 26th July 2019 passed by the learned single Judge on a writ petition filed by the appellant. A notification was published by Gram Panchayath, Begur, Shikaripura Taluk, Shimoga District, inviting applications for appointment to the post of Peon. In the advertisement, qualification mentioned was of SSLC. The appellant applied for the post. The Gram Panchayath passed a resolution on 22nd November 2018 for appointing the appellant. According to the case of the appellant, the Gram Panchayath forwarded a proposal for appointing the appellant to the post to the Chief Executive Officer of Zilla Panchayath. The challenge in the writ petition before the learned single Judge was to the communication issued on behalf of the Chief Executive Officer, in which it was observed that amongst the candidates who had filed applications to the post of Peon, the appellant who has secured lesser marks has been selected and therefore, the proposal was returned back to Gram Panchayath for consideration of the candidate who has secured highest marks. The prayer in the writ petition filed by the appellant was for quashing the said communication with a consequential prayer for a writ of mandamus for appointment of the petitioner. The learned single Judge, in the impugned order, referred to the Government order dated 10th September 2014 and observed that the Chief Executive Officer has sent back the matter to Gram Panchayath for re- consideration as according to the Chief Executive Officer, the recommendation of the name of the appellant was not with reference to merits. Therefore, the learned single Judge refused to interfere.
3. The learned counsel appearing for the appellant submitted that the appointing authority is the Gram Panchayath and as per sub-section (1) of Section 113 of the Karnataka Gram Swaraj and Panchayath Raj Act, 1993 (the said Act of 1993), only an approval of the Chief Executive is required. He submitted that as per the Government order dated 10th September 2014, all that the Chief Executive Officer has to examine is whether the expenses likely to be incurred by the Gram Panchayath on appointment of employees do not exceed 40% of the total income. He submitted that there was no criteria of marks obtained by the candidates in SSLC examination. He submitted that there was nothing illegal about recommendation made by Gram Panchayath by passing a resolution and therefore, approval ought to have been granted. He relied upon the subsequent correspondence made which shows reiteration of the recommendation of the name of the appellant. He, therefore, submits that there was no impediment in the way of Chief Executive Officer granting approval.
4. The learned counsel appearing for the Respondents 2 to 5 submitted that grant of approval under sub-section (1) of Section 113 of the said Act of 1993 is not an empty formality. He submitted that the Chief Executive Officer has to examine whether the recommendation is in accordance with law. He would, therefore, submit that after finding that there are persons who have secured more marks than the appellant, the Chief Executive Officer had sent back the matter for reconsideration of the Gram Panchayath. He pointed out that one Smt.Padma who had secured more marks than the appellant filed writ petition No.274/2019 against the resolution recommending appointment of the appellant. He pointed out that the said writ petition was dismissed on the ground that in view of the impugned order, the said petition does not survive.
5. The learned counsel appearing for the appellant relied upon the decision of this Court in the case of H.RAJAPPA AND ANOTHER v/s. HARONAHALLI GRAMA PANCHAYAT, REP. BY ITS SECRETARY, DAVANAGERE DISTRICT AND OTHERS1 in support of his submissions.
6. We have carefully considered the submissions.
Sub-section (1) of Section 113 of the said Act of 1993 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 1 ILR 2005 KAR 1443 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.”
7. It contemplates that a Gram Panchayath can appoint employees with the prior approval of the Chief Executive Officer of the Zilla Panchayath. It follows that grant of prior approval is not an empty formality at all. Apart from examining the financial burden which may be put on the Gram Panchayath by appointing employees, the Chief Executive Officer has to consider whether the appointment will be lawful or not. By way of illustration, we may note here that if in a given case, the candidate recommended by a Gram Panchayath was not at all qualified, the Chief Executive Officer can always refuse to grant prior approval. We do not agree with the submission that while granting approval, the Chief Executive Officer is precluded from examining whether the candidate who is recommended by a Gram Panchayath is eligible and qualified to hold the post.
8. All that the Chief Executive Officer by the impugned notification in the writ petition has done is that he had directed reconsideration of the whole issue by the Gram Panchayath as it was found that persons who had secured more marks than the appellant were not recommended for selection. Instead of rejecting the proposal for grant of prior approval to appointment of the appellant, the Chief Executive Officer directed the Gram Panchayath to reconsider the proposal and submitted a fresh recommendation. The object of the said order appears to be that a person who is more suitable on merits, should be appointed and therefore, the Chief Executive Officer observed that the other candidates who have secured more marks than the appellant in SSLC examination have not been considered by the Gram Panchayath. It is difficult to find fault with the said approach. That is the reason why the learned single Judge has observed that there is some sort of a remand to the Gram Panchayath. At this stage, we may note that in view of Clause (c) to sub-section (1) of Section 234 of the said Act of 1993, if the concerned Village Panchayath fails to reconsider the issue of appointment to the post of Peon and submit a fresh recommendation, the Chief Officer is empowered to exercise power under Clause (c) of sub-section (1) of Section 234 to require a Gram Panchayath to do that in a specific time.
9. As far as the decision in the case of HARONAHALLI GRAMA PANCHAYAT (supra) is concerned, the issue considered is in the context of the question whether the Chief Executive Officer is the appointing authority or the Gram Panchayath. In this context, the learned single Judge of this Court observed that prior approval of the Chief Executive Officer for initiating disciplinary proceedings is not required under sub-section (1) of Section 113. The said decision will not help the appellant.
10. Hence, it is difficult to find fault with the order of the learned single Judge.
11. Considering the further correspondence relied upon by the appellant, we find that Gram Panchayath did not submit any specific recommendation as directed in Annexure-N. We may note here that Gram Panchayath consists of such number of elected members as may be notified from time to time by the State Election Commission.
The recommendation by a Gram Panchayath has to be done by passing a resolution by the Gram Panchayath. Thus, after impugned communication at Annexure-N was issued, the exercise was not done by the Gram Panchayath.
12. Accordingly, we pass the following:
ORDER If the Gram Panchayath, Begur fails to submit a revised proposal seeking prior approval within a reasonable time, it is always open for the Chief Executive Officer to exercise powers under Clause (c) of sub-section (1) of the said Act of 1993.
Subject to what is stated above, the Appeal is dismissed.
Sd/- CHIEF JUSTICE Sd/- JUDGE bnv