Sujata Parmar vs State Of Madhya Pradesh And Others

Instant intra court appeal preferred under Section 2(i) of Madhya Pradesh Uchcha Nyayalay ( Khand Nyay Peeth Ko Apeal) Adhiniyam, 2005 assails the final order dated 24/09/2020 passed in WP No.13723/2020(s), whereby the learned single judge exercising the writ jurisdiction under Article 226 of the Constitution of India has disposed of the writ petition with certain directions. The appellant/petitioner had prayed for following reliefs in the writ petition:-

''7(1) That, the impugned order annexure P/1 dated 26.08.2020) may kindly be quashed.

7(ii) That, it may be held that the respondent No.2 to 4 have not authority under the policy to take action or to terminate the service of the petitioner.

7(iii) That, during pendency of the present petition if the termination order is passed then the respondents may kindly be directed to reinstate the petitioner in service with all consequential benefits.

7(iv) That, other relief which is just and proper in the facts and circumstances of the case may also be granted.''

Learned counsel for the appellant submitted that though the learned single judge had accepted the contention that the respondent No. 3/Chief Medical and Health Officer had no jurisdiction to pass the impugned order dated 26.08.2020, by which the authorities have directed to remove the appellant/petitioner. The Gram Sabha is the competent authority to decide the matter. However, the learned single judge relying upon the judgment passed in W.P. No. 8875/2020 (Shyam Sunder Vyas Vs. State of M.P. and others) has disposed of the writ petition with the following directions:-

"Accordingly, it is directed that the Gram Sabha shall look into the allegations made against the petitioner and shall take a decision. It is further directed that the Gram Sabha shall decide the question of retaining or removing her from service without getting prejudiced by the direction given by respondent No.3. It is made clear that while taking decision in the matter, the Gram Sabha shall not take any lenient view, because the health of the residents of the village is of paramount consideration.

Let the entire exercise be completed within a period of two months from today.

The petitioner is directed to supply a copy of this order to the Gram Sabha within a period of eight days from today, failing which this order shall automatically lose its effect.

With aforesaid observation, this petition is finally disposed of."

Learned counsel for the appellant submitted that on one hand the learned single judge has deleted the observation made by the CMHO regarding removal of the petitioner from the post of Asha worker and to appoint new incumbent in her place and the Gram Sabha shall look into the allegations made against the appellant and shall take a decision and on the other hand directions have been given to the Gram Sabha to the effect that lenient view should not be taken. Learned counsel for the appellant submitted that such an observation could not have been inserted in the order as the Gram Sabha would be prejudiced by the aforesaid observation. In fact the Gram Sabha is the competent authority and it is open for it to take a decision in accordance with law without being influenced by any observation made by anyone. Learned counsel for the appellant seeks modification in the order only to the extend of deleting the observation made by the learned single judge that "It is made clear that while taking decision in the matter, the Gram Sabha shall not take any lenient view, because the health of the residents of the village is of paramount consideration.".

Learned counsel for the appellant has relied upon the judgment in the case of Mansukhlal Vithaldas Chauhan vs State Of Gujarat reported in 1997 (7) SCC 622, wherein, it has been held as under:-

"23. In the performance of this Study, if the authority in whom the discretion is vested under the Statute, does not act independently and passes an order under the instructions and orders of another authority, the Court would intervene in the matter, quash the orders and issue a mandamus to that authority to exercise its own discretion."

In view of the above the observation made by the learned single judge that "It is made clear that while taking decision in the matter, the Gram Sabha shall not take any lenient view, because the health of the residents of the village is of paramount consideration.", is hereby deleted.

The Gram Sabha is directed to consider the case of the appellant in accordance with law.

The rest of the order passed by the learned single judge shall remain intact.

This order shall be read in conjunction with the order dated 24/09/2020 passed in WP No.13723/2020(s).

With the aforesaid modification, the writ appeal stands disposed of.