Parmai Lal vs Collector, Hardoi and Others

Writ petitionerappellant, aggrieved by order dated 26.2.2009 passed by a learned Single Judge in Writ Petition (S/S) of 2009, has preferred this appeal under Rule 5 Chapter VIII of the High Court Rules.

Short facts giving rise to the present appeal that the writ petitionerappellant (hereinafter referred to as the ''petitioner'') and respondent No.4, Smt. Soni Dwivedi beside other persons were candidates for appointment as Gram Rojgar Sewak for Gram Panchayat Eira Bhadar within block Sandi in the district of Hardoi. By order dated 28th January, 2009, respondent No.4 was appointed as such. The petitioner challenged the same in the writ petition inter alia alleging that she being not the domicile of the said Gram Panchayat is not eligible for appointment as Gram Rojgar Sewak. Challenge made has failed before the learned Single Judge on its finding that the engagement as Gram Rojgar Sewak earlier known as Panchayat Mitra is not governed by any statutory rules and therefore, the writ petition is not maintainable.

Mr. Pankaj Gupta, learned counsel appearing on behalf of the petitioner submits that the petitioner as also respondent No.4 were candidates for appointment as Gram Rojgar Sewak and the appointment of respondent No.4 being illegal made by the functionary of the State, writ petition is maintainable. In support of the submission, reliance has been placed on a Division Bench judgment of this Court in the case of Meena Srivastava v. State of U.P. and others, reported in [2009 (1) LBESR 90 (All)] and our attention has been drawn to paragraph 9 of the judgment, which reads as follows:

�In the facts of the present case writ petition has been filed against an action of a Government Officer, who is public authority. The writ petition under Article 226 of the Constitution of India is maintainable against a public authority. The public authorities, who are Stateauthorities and instrumentalities are not to act arbitrarily, irrationally or unreasonably. Any action of public authority can always be impugned in the writ petition and it cannot be said that the writ petition is not maintainable in such case.�

Mr. Gupta further points out that reliance on the decision of the Supreme Court in the case of State of Karnataka and others v. Ameer Bi and others, reported in (2007) 2 SCC 681 is absolutely misplaced.

Ms. Kriti Srivastava appearing on behalf of respondent Nos.1 to 3 submits that the view taken by the learned Single Judge does not suffer from any error and hence does not call for interference.

Despite service of notice to respondent No.4, nobody has chosen to appear on her behalf.

Having appreciated the rival submission, we find substance in the submission of Mr. Gupta and the decision relied on clearly supports his submission.

In the case in hand, the petitioner as also the respondent No.4 were candidates for appointment and petitioner questioned the appointment of respondent No.4 on the ground that she is not eligible. Said appointment has approved by the District Development Officer, a functionary of the State.

The decision of the Supreme Court in the case of Ameer Bi does not lay down as a proposition of law that a writ does not lie in which the question of appointment by the functionary of the State is under challenge.

In that view of the matter, we are of the opinion that the learned Single Judge erred in dismissing the writ petition as not maintainable.

Whether respondent No.4 is a domicile of the Gram Panchayat for which she was appointed and further as to whether domicile of a particular Panchayat is necessary for such an appointment needs examination of facts.

We are of the opinion, that the aforesaid question can best and appropriately be adjudicated by the District Magistrate, Hardoi.

Accordingly, we direct the appellant to appear before the District Magistrate within two weeks from today and place such materials which are relevant for decision on the issue of domicile. The District Magistrate, Hardoi after giving notice to the persons concerned shall adjudicate the issue within six weeks from the date the petitioner files application.

It is made clear that we have not expressed any opinion in regard to the claim made by the petitioner and that shall be considered by the District Magistrate in accordance with law.

In the result, the appeal stands allowed. Impugned order of the learned Single Judge is set aside with the direction aforesaid. No cost.

(Appeal allowed)