Maniyur Panchayat vs The Secretary to Government, Local Administration and Social Welfare and Others

V. Balakrishna Eradi, J.—The petitioner before me is the Maniyur Panchayat represented by its Acting President and the challenge in the writ petition is directed against the action of the State Government in issuing the communication Exhibit P-1 dated 30-5-1972 to the Executive Officer of the petitioner-Panchayat directing him that no appointment to any post in the Maniyur Panchayat should he made until further orders from Government. The petitioner contends that the Government had no jurisdiction at all to issue any such direction to the Executive Officer since there is no provision in the Kerala Panchayats Act or in any rules framed thereunder conferring such a power on the State Government. It is also alleged in the original petition that the impugned order causes great hardship to the Panchayat in its day-to-day administration and efficient working and that it stands in the way of filling up vacancies of two High School assistants in the Secondary School run by the Panchayat resulting in considerable inconvenience to the students of said school. It would appear that a notice dated 23-3-1972 had been issued by the State Government proposing to supersede the Panchayat and calling upon the Panchayat to put forward its objections, if any, to the said proposal. The petitioner filed O.P. No. 2237 of 1972 challenging the validity of that notice and had obtained an interim stay of further proceedings in that matter as per an order dated 1-5-1972 passed in C.M.P. No. 5688 of 1972. It is alleged by the petitioner that Exhibit P-1 which is impugned in this case has been issued by the State Government only after the stay order was passed by this Court and that the said action is illegal on that ground as well.

In the counter-affidavit filed on behalf of the State Government it is stated that the Government had received information that appointments were about to be made to many posts by the authorities of the Maniyur Panchayat in respect of which a proposal for supersession was pending and that it was therefore considered necessary to issue the impugned order Exhibit P-l since the Government thought it proper not to allow the Panchayat to fill up the vacancies and thereby impose a financial burden on the Panchayat. In answer to the petitioner''s contention that the Government had no power to issue the impugned direction, it is asserted in the counter-affidavit that under Sections 39(2), 143 and 144(3)(1) of the K. P. Act and Rule 5 of the Kerala Panchayat (Establishment) Rules, 1967 "the Government have absolute control in the matter of appointment in Panchayats." Reliance is also placed in the counter-affidavit on Sections 55 and 56 of the Act as investing the Government with power to issue such directions to a Panchayat.

Section 4(3) of the K. P. Act states that every panchayat shall be a body corporate having perpetual succession and a common seal; and subject to any restriction or qualification imposed by or under the Act or any other law, it shall be vested with the capacity of acquiring, holding and transferring property, movable or immovable, of entering into contracts, and of doing all things necessary, proper or expedient for the purposes for which it is constituted. Section 39 (2) relied on by the respondents merely confers powers on the State Government to make rules regarding the authorities who may appoint the officers and servants of panchayats other than the executive officers, and the classification, methods of recruitment, pay and allowances, discipline and conduct, and other conditions of service of such officers and servants. There is nothing in the said rule which empowers the Government to issue a direction to the Panchayat not to make any appointments for filling the vacancies of posts in its service. No doubt, under sub-section (1) of the same section power is conferred on the Director to fix the number, designations and grades, etc. of the officers and servants of every Panchayat other than the Executive Officer. So long as the Panchayat does not transgress the limitations imposed u/s 310(f) regarding the number of posts sanctioned for its service, there is no power vested by the said sub-section either in the Director or in any other authority to interfere in the matter of filling up by the Panchayat of the vacancies arising in those sanctioned posts,. Sections 55 and 56 deal with the subject of dissolution and supersession of Panchayats and they have no relevancy for determining the validity of the impugned order since the panchayat in question has not so far been superseded. The remaining two sections of the Act relied on by the respondents, namely, Sections 143 and 144(3)(1) are not even remotely relevant since the former deals with the delegation by the Government of the powers vested in it in favour of any authority, officer or person and the latter is merely a provision conferring lights of appeal and revision on persons aggrieved by actions taken by the executive authority, to the Panchayat in the first instance and thereafter to the superior officers. Rule 5 of the Kerala Panchayats Establishment Rules, 1967, relates only to the Director''s power to fix the staff strength of Panchayats and does not advance the case of the respondents beyond what is contained in Section 39(2) "of the Act. No other provision either in the Act or in the Rules confer a power on the State Government to interfere with the exercise by the Panchayat of its rights to fill up vacancies arising in the sanctioned posts belonging to its service has been brought to my notice by the Government Pleader appearing on behalf of the respondents. The resulting position is that the order Exhibit P-l must be held to be completely devoid of jurisdiction and hence illegal.

The original petition is, therefore, allowed and Exhibit P-1 is quashed. The parties will bear their respective costs.