FAQ's

Dispute Resolution Under Madhya Pradesh Panchyati Raj Adhiniyam, 1993

Q.6. What are the disqualifications for election as members of the panchayat?

Ans.

• Children: Disqualification shall be ascertained according to the provision at the time of the order passed by the authority. Accordingly, when a candidate stood disqualified on the premise of having more then two children, then subsequent deletion of provision would not waive off the disqualification unless the provision is specifically retrospective in nature.
• Conviction: A candidate is not eligible for contesting the election unless five years have elapsed since the date he was released from imprisonment under a sentence which is for a period more then six months. Accordingly, PIL stood allowed and ordered removal of such elected candidate.
• Questioned & decided: As it appears under this provision requires that the issue involved in the subsequent election petition ought to have been questioned as well as decided. Accordingly, when earlier election petition was dismissed as barred by limitation, then this provision does not stand attracted.
• Questioned & decided: When proceedings are initiated against the candidate for recovery of excess payment obtained for installation of tube-well, then mere payment of such excess money by itself is not sufficient to impose liability upon the concerned person. In absence of any motive and affording reasonable opportunity, it cannot be said that such person is accused and stands disqualified for standing for elections under this provision.
• Reference: Even when election petition is not maintainable due to technical reasons, then on pointing of disqualifications, such petition ought to have been taken as a representation and referred to the Collector, who shall then decide the same as a reference.
• Factors: Such removal can take place only in two conditions: (a) Employee is found guilty of misconduct in discharge of his duties; (b) His continuance in office is undesirable in the interest of public.
• Natural justice: Order of removal of the office-bearers requires that principles of natural justice are complied with by the authority, more so when the removal entails disqualification for a period of five years. Accordingly, when the departmental witnesses named in the enquiry report not cross-examined in spite of specific application, then order of removal quashed.

Q.7. Panchayat is required to discharge large number of functions. How are the employees' of the panchayat appointed?

Ans. As per s.2 of Adhiniyam read with notification dated 05-03-1994, existing authorities under the M.P. Land Revenue Code have been entrusted with the additional responsibility for discharge of functions under this Adhiniyam as well. Further, with constitution of the panchayat at various levels, powers have been vested upon them as well. Broadly speaking, following in the division of powers:

• Advertisement: When the criterion not mentioned in the advertisement or notification is the basis for rejection of candidature, then it would not be permissible.
• Authority: He can either be appointed by the prescribed authority i.e., Collector or by the Gram Panchayat wherein he would be subsequently notified u/s.69(1) by the Collector. Further, u/s.86 the Chief Executive Officer is simply empowered to discharge executive functions which does not include appointment of panchayat-karmi. However, when the gram-panchayat failed to appoint one, then it would be within the powers of the Collector to direct appointment through CEO, Janpad Panchayat.
• Officers & servants: Gram panchayat with prior approval of the prescribed authority is empowered to make selection & appointment of officers & servants except Secretary or CEO of panchayat. Further, such approval is not required for any named person.
• Panchayat-karmi: Such person is required to be appointed on the basis of merit and not majority votes in the gram panchayat, accordingly, setting-aside of such selection upheld. Further, such person is required to be appointed on the basis of merit and not reservation, since there is only one post for every gram panchayat.

Q.8. What are the disciplinary checks/control against the panchayat karmi?

Ans.

• Suspension: A panchayat-karmi is appointed by the gram panchayat and notified as secretary by the Collector. Accordingly, under these rules Collector has the power to suspend powers with respect to Secretary & not that of panchayat-karmi, as latter falls within the ambit of gram panchayat.


• De-notification of a panchayat-karmi without conducting formal enquiry would be illegal, and violative of the instant provision which provides for opportunity of hearing prior to imposition of major penalty.

Q.9. What is the prescribed procedure for challenge of appointment of panchayat karmi?

Ans.

• Non-consideration: When application for appointment as panchayat-karmi was not considered at all by the gram panchayat, then resolution passed in pursuance of the same would be liable to challenge in writ petition.


• Merit: When merit at the school education level was completely ignored at the time of appointment, then writ petition without availing alternate remedy would be maintainable.


• Order of appointment: However, barring the aforesaid two factors, against all other orders of appointment of panchayat karmi only an appeal lies and directly revision would not be maintainable.


• Resolution: Appeal against resolution of Panchayat does not lie in absence of any specific provision with respect to the same. However, such substantive right of appeal cannot be completely negated, and held that revision is maintainable to such authority which is empowered under s.85 to exercise suo motu powers against resolution.


• Resolution: Clarifying the aforesaid judgement held that appeal would lie under the relevant rules against a resolution on the basis of which employees are appointed by the Gram Panchayat.


• Resolution: When resolution merely recommends appointment of panchayat-karmi, then no appeal/ revision lies. However, when in pursuance of resolution appointment order is issued, then such resolution along with order of appointment is appealable.

Q.10. There has been decentralization of number of activities, including appointment of teachers, such as Samvida Shala Shikshak at the village level. What is the procedure regarding disputes of such nature?

Ans.

• Rule 6: Interview: Provision dispensing with the requirement of interview, and instead providing for allocation of marks for specified criterion held to be legal & valid, as it is not necessary that interview shall or subjective discretion of appointing authority be integral part of the selection process.


• Rule 9: Provision with regard to educational qualifications & award of marks stipulated that those holding B.Ed. degree would not be awarded additional weightage whereas those having D.Ed./ B.T.C./D.S.E would be given with respect to Grade-III employment. Further, rules also provided different weightage with respect to teaching experience and category of applicants, Grade-I, II & III. Such rules upheld as reasonable classification.


• Rule 10: Candidates engaged under these rules are appointed under a contract and not entitled for the benefits admissible to the government employee.

Q.11. Can the Panchayat sue or be sued in its own name?

Ans.It has been provided under the provision that the Panchayat is a body-corporate, which can sue and be sued under its own name. Accordingly, Sarpanch cannot represent the panchayat in litigation without a resolution to that affect from the gram panchayat.

Q.12. What is the nature of disputes which generally arises under the Adhiniyam?

Ans. Primarily, the disputes can be classified into two broad categories, first being related to office bearers/employees under the panchayat and second being related to affairs of the panchayat in the following manner:

It is further pertinent to note that the there is no provision for second appeal or second revision under the Adhiniyam. After the appellate order, the aggrieved party has the recourse to revision, and thereafter the revisional order could be challenged before the Hon'ble High Court of Madhya Pradesh under Article 227 of the Constitution of India. Such writ petitions are heard by the learned Single Judge as per the M.P. High Court Rules, 2008. Against the appellate order passed by Collector, there is provision of revision before the Commissioner. Writ petition preferred without availing the alternate remedy would not be maintainable.