# Smt. Somawati and others v. The District Magistrate, Bareilly and others

- **Citation:** (2010) 1 ILRA 301
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-03-15
- **Case number:** Civil Misc. Writ Petition No. 61111 of 2008
- **Bench:** B.K. Narayana
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-somawati-and-others-v-the-district-magistrate-bareilly-and-others-41612
- **Pages:** 4

## Headnote

Sri S.N. Rahul
C.S.C.

Uttar Pradesh Punchayat Raj (Removal
of Pradhan-Up Pradhan and Member)
enquiry
Rules
1997-Rule
4
(2)-
Preliminary enquiry by executive officervillage Pradhan was found prima faci
guilty
of
mis
appropriation-ceasing
financial and administrative power-three
members
committee
appointed-under
political pressure the D.M. appointed
joint
enquiry
committee-based
upon
such
collusive
enquiry
report-power
restored back to village Pradhan-heldillegal-No provision of joint enquiry-nor
any satisfactory explanation given for
appointment of second joint enquiryorder passed by D.M.-restoring financial
&
administrative
power
quasheddirection
issued
to
finilised
the
proceeding for Removal within time
bound period.

Held: Para 11

The financial and administrative powers
of the Gram Pradhan so ceased cannot
be
restored
unless
the
Pradhan
is
exonerated of the charges made against
him in the final enquiry as provided by
first proviso to Section 95 (1) (g) of the
Act. This having not been done in the
present
case,
the
impugned
order
restoring
the
financial
and
administrative
powers
of
the
Gram
Pradhan cannot be sustained.
Case law discussed:
2005 (99) R.D. 434.

## Text

1 All] Pankaj Kumar V. Hon'ble High Court of Judicature at Allahabad and others

301

"With the appointment of the first
candidate for the only post in respect of
which the consideration came to be made
and select list prepared, the panel ceased
to exist and has outlived its utility and at
any rate, no one else in the panel can
legitimately contend that he should have
been offered appointment either in the
vacancy arising on account of the
subsequent resignation of the person
appointed from the panel or any other
vacancies arising subsequently."

15. Any appointment made beyond
the number of vacancies advertised, is
without jurisdiction, therefore, a nullity,
in-executable and un-enforceable in law.

16. The factual situation in this case
is worst, as there was no vacancy against
any sanctioned post qua which the four
persons could be appointed.

17. This Court may clarify that
petitioner relied upon an order passed by
the Administrative Judge of the Judgeship
of Saharanpur at the relevant time,
wherein petitioner was directed to be
adjusted in the Fast Track Courts. I am of
the prima facie opinion that such orders of
the Administrative Judge will not infuse
life in void appointment of the petitioner
and the High Court should have normally
taken appropriate action to ensure that any
person appointed in excess of the
sanctioned and advertised post, is not
permitted to work. Mistake, if any, should
have been corrected, but such is not the
practice in the High Court. For five years,
the Registrar General has slept over the
file and today an affidavit is being filed
on his behalf that since the petitioners are
working, they should be paid salary.

18. In my opinion, the stand of the
Registrar General is patently a negation of
rule of law, which applies to the
employees of the Courts under the
superintendence of the High Court like to
any other citizens of the Country. Public
money cannot be permitted to be used for
payment
of
salary
to
such
void
appointees.

19. However, if the Registrar
General of the High Court has taken a
decision to pay salary to such class of
appointees, let him do so from his own
pocket. It is made clear that Government
money shall not be utilized for the
purposes of payment of salary to the
petitioners, whose appointment, prima
facie, has been made in excess of the
sanctioned
post
and
in
excess
of
advertised
posts.
He
must
transmit
requisite money to the District Judge,
Sahanpur for the purpose from his
personal account within four weeks from
today.

20. List this matter for further orders
after four weeks. In the meantime,
petitioners are at liberty to file an affidavit
justifying their appointment.
---------
ORIGINAL JURISDCITION
CIVIL SIDE
DATED: ALLAHABAD 15.03.2010

BEFORE
THE HON'BLE B.K. NARAYANA, J.

Civil Misc. Writ Petition No. 61111 of 2008

Smt. Somawati and others ...Petitioners
Versus
The District Magistrate, Bareilly and
others

 ...Respondents
302 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

Counsel for the Petitioner:
Sri Pradeep Saxena

Counsel for the Respondents:
Sri S.N. Rahul
C.S.C.

Uttar Pradesh Punchayat Raj (Removal
of Pradhan-Up Pradhan and Member)
enquiry
Rules
1997-Rule
4
(2)-
Preliminary enquiry by executive officervillage Pradhan was found prima faci
guilty
of
mis
appropriation-ceasing
financial and administrative power-three
members
committee
appointed-under
political pressure the D.M. appointed
joint
enquiry
committee-based
upon
such
collusive
enquiry
report-power
restored back to village Pradhan-heldillegal-No provision of joint enquiry-nor
any satisfactory explanation given for
appointment of second joint enquiryorder passed by D.M.-restoring financial
&
administrative
power
quasheddirection
issued
to
finilised
the
proceeding for Removal within time
bound period.

Held: Para 11

The financial and administrative powers
of the Gram Pradhan so ceased cannot
be
restored
unless
the
Pradhan
is
exonerated of the charges made against
him in the final enquiry as provided by
first proviso to Section 95 (1) (g) of the
Act. This having not been done in the
present
case,
the
impugned
order
restoring
the
financial
and
administrative
powers
of
the
Gram
Pradhan cannot be sustained.
Case law discussed:
2005 (99) R.D. 434.

(Delivered by Hon'ble B. K. Narayana, J.)

1. Heard learned counsel for the
petitioners and the learned standing
counsel for the respondents.

2. This writ petition has been filed
challenging the order dated 22.11.2008
passed
by
the
District
Magistrate,
Bareilly.

3. The petitioners claim that they are
elected members of Gram Panchayat,
Badagaon,
Village-Badagaon,
Block
Bhadpura, Tehsil-Nawabganj, DistrictBareilly. The Gram Sabha consists of
three villages. One member of Gram
Panchayat was elected from each of the
village. On a complaint made by the Gaon
Sabha regarding irregularity in working of
the Gram Pradhan, his financial and
administrative powers were ceased.

4. A preliminary enquiry was
conducted by the respondent no. 2 the
Zila Panchayat Raj Officer, Bareilly
wherein he found that respondent no. 5
guilty
of
misappropriation
and
recommended for action against the Gram
Pradhan in accordance with law.

5. The Zila Panchayat Raj Adhikari,
Bareilly
thereafter
constituted
a
Committee for exercise of financial
powers of Gram Pradhan. The members
of the Gram Sabha were not satisfied with
the steps taken by the D.P.R.O., hence
they made a complaint to the District
Magistrate,
Bareilly
in
this
regard.
Thereafter
the
Zila
Panchayat
Raj
Adhikari, Bareilly, directed the Block
Development Officer, Block Bhadpura,
District- Bareilly for convening a meeting
of elected members of Gram Panchayat
for
constituting
a
three
members
committee
amongst
themselves
for
functioning in place of Gram Pradhan.
After the meeting the District Magistrate
(1)
constituted
a
three
members
committee including the petitioners and
also nominated Sri D. K. Jain Executive
1 All] Smt. Somawati and others V. The D.M., Bareilly and others

303
Engineer, PWD, Bareilly as Enquiry
Officer, who has submitted his report with
the finding that respondent no. 5 had
misappropriated
an
amount
of
Rs.
74,457/- in the various development
works undertaken under the government
schemes for upliftment of the village.
6. Consequently a show- cause
notice dated 24.03.2008 was issued by the
District Magistrate under Section 95 (1)
(g) to the Gram Pradhan to show cause as
to why he should not be removed from the
post of Gram Pradhan. By the same
notice, the financial and administrative
powers of the Gram Pradhan were also
ceased by him in the exercise of his power
under first proviso to Section 95 (1) (g) of
the U.P. Panchayat Raj Act, 1947
(hereinafter referred to as the Act).

7. The grievance of the petitioners is
that instead of showing cause, the
Pradhan brought political pressure upon
the authorities for nomination of another
enquiry officer and the District Magistrate
thereafter appointed Sahayak Nidesak
(Matsya), Bareilly and Junior Engineer
(Gram
Abhiyantran
Sewa),
Block
Nawabganj, District-Bareilly, Sri D. K.
Jain to inquire into the matter afresh, who
has been arrayed as respondent no. 3 and
4 in the writ petition.

8. It is stated that that without
considering the facts and circumstances of
the case, the enquiry officers submitted
enquiry report in favour of the Gram
Pradhan and the District Magistrate on the
basis of report so submitted by respondent
nos. 3 and 4 restored the financial and
administrative powers of respondent no.
5.

9.

Learned
counsel
for
the
petitioners contended that the enquiry
report submitted by the respondent no. 3
and 4 is collusive and that it has been
given under political pressure as they
were appointed under political pressure
exerted by the Gram Pradhan, respondent
no. 5 through the Minister/MLS's and
MP's of various political parties.
10. Learned standing counsel
submitted that the second enquiry was
ordered in view of the fact that the
enquiry report submitted by the Executive
Officer was not found to be satisfactory
however
he
miserably
failed
to
substantiate
his
submission
and
to
indicate any reason as to why the enquiry
report submitted by the Executive Officer
was not satisfactory. He also failed to
show any provisions under the Act
authorising the District Magistrate upon
receipt of the preliminary enquiry report
under Rule 4 (2) of the Uttar Pradesh
Panchayat Raj (Removal of Pradhans,
U.P.-Pradhans and Members) Enquiry
Rules, 1997 (hereinafter referred to as the
Rules) to order a fresh preliminary
enquiry.

11. After examining the contentions
advanced by the learned counsel for the
parties and perusing the record of the writ
petition as well as the impugned order, I
have no hesitation in holding that there is
no provision either under the Act or the
Rules for holding joint enquiry after the
preliminary enquiry report under Rule 4
(2) of the Rules has been submitted. The
District Magistrate clearly erred in law
and acted without jurisdiction in ordering
joint enquiry in the matter after the
preliminary enquiry was conducted by the
Executive Officer and he submitted in his
report that the Pradhan of the Gram Sabha
was guilty of all the charges made against
him and thereafter the show cause notice
was issued on the
basis of
said
304 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

preliminary
enquiry
report
to
the
respondent no. 5 for filing his reply to the
charge sheet and his financial and
administrative powers were ceased. The
financial and administrative powers of the
Gram Pradhan so ceased cannot be
restored unless the Pradhan is exonerated
of the charges made against him in the
final enquiry as provided by first proviso
to Section 95 (1) (g) of the Act. This
having not been done in the present case,
the impugned order restoring the financial
and administrative powers of the Gram
Pradhan cannot be sustained.

12. It is apparent that the the second
enquiry
was
conducted
without
jurisdiction with a view to confer undue
advantage upon the petitioners.

13. This court in the case of Govind
Prasad Vs. State of U.P. and other
reported in 2005 (99) R.D. 434, while
considering the same issue, held in
paragraph 9 and 10, as quoted here under:

"9. Thus, it is not open to the
District Magistrate to recall his order
ceasing the financial and administrative
powers of the Pradhan until the final
enquiry report has been obtained and the
Pradhan is exonerated of the charges
levelled against him/her.
10. In view of the aforesaid settled
legal position, the Court is satisfied that
the District Magistrate had no authority
of law to recall the order whereby the
financial and administrative powers of
the Pradhan had been ceased, so long as
final enquiry report as contemplated by
Rule 5 had not been obtained from the
nominated final Enquiry Officer and the
District Magistrate on the basis of said
enquiry report is satisfied that the
charges as levelled against the Pradhan
were not made out."

14. For the aforesaid, the impugned
order dated 22.11.2008 as well as the
enquiry report date 12.11.2008 cannot be
sustained and are liable to be set aside.

15. The writ petition is allowed. The
order dated 22.11.2008 (Annexure no. 1
to the writ petition) passed by respondent
no. 1 District Magistrate Bareilly and the
enquiry
report
dated
12.11.2008
submitted by respondent nos. 3 and 4 are
hereby quahsed.

16. The District Magistrate Bareilly
is directed to finalise the proceedings for
removal of Pradhan of Gram Sabha within
a period of one month from the date of
production of certified copy of this order
before him.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.03.2010

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 67881 of 2006

Allahabad Bank Staff Association and
others

...Petitioners
Versus
Chairman and M.D., Allahabad Bank H.O.
Kolkata and others
...Respondents

Counsel for the Petitioners:
Smt. C.K. Chaturvedi

Counsel for the Respondents:
Sri Tarun Varma
Sri Himanshu Tiwari

Constitution
of
India,
Art.
226Compassionate
appointment-claim
of