Chandrapal Yadav Versus State of Madhya Pradesh and others

Supreme Court of India (Full Bench (FB)- Three Judge)

651 of 2013, Judgment Date: Jan 06, 2016

HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
JABALPUR
(Full Bench: Hon’ble the Chief Justice Shri A.M. Khanwilkar,
 Hon’ble Shri Justice S.K.Gangele &
 Hon’ble Shri Justice Alok Aradhe)
*******
Writ Appeal No.651 of 2013
Chandrapal Yadav
Versus
State of Madhya Pradesh and others
For appellant : Shri Vivek Ranjan Pandey, Advocate
 and Shri Alok Kumar, Advocate.
For respondents/State : Shri Samdarshi Tiwari, Dy. Advocate General.
Whether approved for reporting : Yes.
 *******
ORDER
(Reserved on : 05/10/2015)
 (Pronounced on : 06/01/2016)

Per S. K. Gangele J.
 A Division Bench of this Court vide order dated 05.08.2013 doubted
the correctness of the ratio laid down by another Division Bench in the case
of Lalla Prasad Burman vs. State of M.P. and others, 2008 (3) MPLJ
394 and has referred the following question for consideration of the Full
Bench:-
“In aforesaid circumstances, disagreeing to the judgment of
Lalla Prasad Burman (supra), we refer it to the Larger Bench
to examine the correctness of the aforesaid judgment in the
light of circumstances that if a criminal case is registered
against a Panchayat Karmi and he has been arrested in the
said offence, whether he is still required to be served a show
cause notice or an opportunity of hearing before withdrawing
the powers of Secretary and whether Hariom still holds the
field.”
2
2. Facts leading to passing an order of reference, briefly stated, are that
the appellant was appointed as the ‘Panchayat Karmi’ by Gram Panchayat,
Badaua, District Rewa. Thereafter, he was notified as Secretary of the Gram
Panchayat. After notification of the appellant as Secretary of the Gram
Panchayat, on 14.09.2012 a criminal case for offences under sections 409,
420, 467, 468, 471, 477, 477-A and 120-B of the Indian Penal Code was
registered against him. The appellant was taken into custody and thereafter
was sent to judicial custody for a period from 14.09.2012 to 02.12.2012. On
account of registration of criminal case against the appellant as well as his
detention, by order dated 06.10.2012 he was de-notified from the post of
Secretary by the Chief Executive Officer, District Panchayat, Rewa. One
Chindalal Saket was given the additional charge of Panchayat Secretary by
way of an ad hoc arrangement. The aforesaid order was challenged by the
appellant before the Collector in revision which was dismissed vide order
dated 11.03.2013. The order passed by the Collector was the subject matter
of challenge before the Additional Commissioner, who also affirmed the
same. The appellant approached this Court by filing the writ petition, inter
alia, on the ground that the order of de-notification of the appellant from the
post of Panchayat Secretary was punitive in nature and it suffered from the
procedural irregularity inasmuch as the same was passed de hors the
procedure prescribed under the provisions of Madhya Pradesh Panchayat
Service (Gram Panchayat Service Discipline & Appeal) Rules, 1999
[hereinafter after referred to as the “Rules of 1999”]. The learned Single
Judge dismissed the writ petition and upheld the order of de-notification on
the ground that the same was rightly passed on account of registration of the
3
criminal case as well as detention of the appellant in jail. Being aggrieved,
the appellant filed the instant appeal.
3. As stated above, the Division Bench vide order dated 05.8.2013,
took note of the decision of the learned Single Judge in the case of Hariom
Singh Rajput vs. State of Madhya Pradesh and others, 2002 (3) MPLJ
204 and decision rendered by the Division Bench in the case of Lalla
Prasad Burman (supra), and doubted the correctness of the law laid down
by Division Bench in the case of Lalla Prasad Burman (supra) and, inter
alia, observed that when a criminal case is registered against the Panchayat
Secretary and allegations of embezzlement of funds are made against him,
de-notification of such a ‘Panchayat Secretary’ is in larger interest of Gram
Panchayat and it would be inappropriate to continue such an employee as
Panchayat Secretary. However, he may be permitted to continue as
Panchayat Karmi and before passing an order of de-notification no
opportunity of hearing is required to be given to such an employee. In the
aforesaid factual background the order of reference was passed.
4. Learned counsel for the appellant submitted that Rules of 1999 are
applicable to Panchayat Secretary and he could neither be de-notified nor be
suspended from the post of Panchayat Secretary without following the
procedure laid down in the Rules and without compliance of principles of
natural justice, even if a criminal case is registered against him. It was
further submitted that withdrawal of power of Panchayat Secretary amounts
to reduction in rank from the post of Panchayat Secretary to Panchayat
Karmi and, therefore, the same being punitive in nature, the procedure
prescribed under Rule 7 of 1999 is required to be followed. In support of
aforesaid submissions, learned counsel has placed reliance on the decisions
in the cases of Lalla Prasad Burman (supra), Kunjan Singh vs. State of
4
M.P. and others, 2003 (3) MPHT 370, Rooplal Nayak vs. State of
Chhattisgarh, 2006 (4) MPHT 99 (CG) and Mool Chand Soni vs. State
of M.P. and others, 2007 (1) MPLJ 343.
5. On the other hand, learned Deputy Advocate General has contended
that appointment of Panchayat Secretary is governed by Section 69 of
Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993
(hereinafter referred to as the “Act of 1993”). It was further submitted that
under the aforesaid provision the State Government or the Prescribed
Authority has the powers to appoint the Panchayat Secretary for a Gram
Panchayat and Rules of 1999 are not applicable to the case of Panchayat
Secretary. It was also pointed out that under Rule 6 of 1999 Rules the
Disciplinary Authority or any Authority to whom such authority is
subordinate can impose penalty specified in Rule 5 to the extent mentioned
in the Appendix to the Rules. The Prescribed Authority mentioned in
Section 69 of 1993 Act is different than the Disciplinary Authority
mentioned in Schedule of the Rules of 1999. However, aforesaid aspect of
the matter has not been considered by the Division Bench while deciding the
case of Lalla Prasad Burman (supra). It was also urged that notification of
Panchayat Karmi as Panchayat Secretary is neither promotion nor an
upgradation of the post and if the Panchayat Secretary is de-notified as
Panchayat Karmi or is restrained to work as such, the same does not amount
to reduction in rank. Lastly, it was pointed out that the State Government has
framed Madhya Pradesh Panchayat Service (Gram Panchayat Secretary
Recruitment and Conditions of Service Rules), 2011 [hereinafter referred to
as the “Rules of 2011”] which have come into force and the service
conditions of the Secretary of Gram Panchayat are now governed in
accordance with the Rules of 2011. In support of aforesaid submissions,
5
reliance has been placed on the decisions in the cases of Gram Panchayat
Bamrol vs. Jagdish Singh Rawat and others, 2008 (4) MPHT 132 (DB),
Neelesh Dubey vs. State of M.P. and others, 2007 (4) MPHT 431,
Kamlesh Dubey vs. State of M.P. and others, 2009 (2) MPHT 372 (DB),
Debesh Chandra Das vs. Union of India and others, AIR 1970 SC and
State of Uttar Pradesh and others vs. Sughar Singh, AIR 1974 SC 423.
6. The principal question posed in the reference order is about the
correctness of the view taken by the Division Bench in Lalla Prasad
Burman’s case (supra). In that case, the appellant was appointed as
Panchayat Karmi on 13.11.1995 under the scheme – Panchayat Karmi
Yojna, 1995. He was notified as Secretary of the Gram Panchayat by the
Collector on 12.10.1999. That case dealt with the situation ‘pre Rules of
2011’. Strictly speaking the principle expounded in the said decision may
apply only to cases in which an incumbent is notified as Secretary ‘pre Rules
of 2011’. After the advent of Rules of 2011, the appointment and service
conditions of the Secretary of the Gram Panchayat is governed by the Rules
of 2011 read with Madhya Pradesh Panchayat Services (Conduct) Rules,
1998 and Madhya Pradesh Panchayat Service (Discipline and Appeal) Rules
of 1999. It is possible to suggest that the observations made by the Division
Bench in Lalla Prasad’s case (supra) may have some relevance for dealing
with cases ‘post Rules of 2011’. For which, we may have to consider the
correctness of those observations.
7. We propose to examine the question posed in the reference order
broadly in two parts. Firstly, the dispensation that must be followed by the
Authorities before de-notification of the incumbent from the post of
Secretary of the Gram Panchayat, post-Rules of 2011. This issue will have to
be answered in further two parts – namely, the dispensation to be followed
6
in respect of incumbent originally appointed as “Panchayat Karmi” and
entrusted with the charge of Secretary of Gram Panchayat post-Rules of
2011. The second is about the incumbent having been appointed directly on
the post of Secretary of Gram Panchayat post-Rules of 2011. The second
broad category will be of cases where the appointment is made on the post
of Panchayat Karmi pre-Rules of 2011 under the Panchayat Karmi Yojna,
1995 and that incumbent was notified as Secretary of Gram Panchayat and
bestowed with the responsibilities of that office pre-Rules of 2011.
8. Reverting to the second broad category of appointments made on the
post of Panchayat Karmi in terms of Panchayat Karmi Yojna, 1995; and
thereafter invested with the additional charge of Secretary of Gram
Panchayat by issuance of notification in that behalf pre Rules of 2011. The
Panchayat and Rural Development Department by notification dated 12th
September, 1995 in exercise of powers under Section 71 read with Section
69(1) of Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 formulated
Panchayat Karmi Scheme named as Panchayat Karmi Yojna. In accordance
with the aforesaid Scheme, the Gram Panchayat was competent to appoint a
Panchayat Karmi either on contract basis or temporarily or permanently. The
Panchayat Karmi would be eligible to receive honorarium, which was fixed
by the Panchayat. In accordance with Clause 7 of the Scheme the Gram
Panchayat is the disciplinary authority of the Panchayat Karmi, it is
authorized to take disciplinary action against the Panchayat Karmi. The
Panchayat Karmi could be removed from his post after issuance of show
cause notice by the general body of the Gram Panchayat.
9. Chapter VIII of the Panchayat Raj Avam Gram Swaraj Adhiniyam,
1993 prescribes establishment, budget and accounts of Panchayats. Section
7
69 under that Chapter of the Act of 1993 prescribes appointment of
Secretary of Gram Panchayat. Section 69 as applicable until 23.5.2012 reads
thus :-
“69. Appointment of Secretary and Chief Executive
Officer.- (1) [The State Government or the prescribed authority
may appoint a Secretary for a Gram Panchayat or group of two
or more Gram Panchayats, who shall discharge such functions
and perform such duties as may Secretary for a Gram
Panchayat or group of two or more Gram Panchayats, who
shall discharge such functions and perform such duties as may
be assigned to them by the State Government or prescribed
authority:]
[Provided that the person holding the charge of a
Secretary of Gram Panchayat immediately before the
commencement of this Act shall continue to function as such till
a Secretary is appointed in accordance with this section.”
Provided further that a person shall not hold charge of a
[Secretary] of Gram Panchayat, if such a person happens to be
relative of any office bearer of the concerned Gram Panchayat.
Explanation. – for the purpose of this sub-section the
expression “relative” shall mean father, mother, brother, sister,
husband, wife, son, daughter, father-in-law, mother-in-law,
brother-in-law, sister-in-law, son-in-law, daughter-in-law.]
[(2) The State Government shall appoint for every
Janpad Panchayat a Chief Executive Officer and may be also
appoint one or more Additional Chief Executive Officer, who
shall discharge such functions and perform such duties as may
be assigned to them by the Chief Executive Officer].
[(3) The State Government shall appoint for every Zila
Panchayat a Chief Executive Officer and may also appoint one
or more Additional Chief Executive Officers, Deputy Chief
Executive Officers and Executive Officers who shall discharge
such functions and perform such duties as may be assigned to
them by the Chief Executive Officer].
(4) During the absence of a Secretary of Gram
Panchayat or [Chief Executive Officer of Janpad Panchayat or
Zila Panchayat] due to leave, retirement, death, resignation or
otherwise the prescribed authority shall, as soon as possible,
make such arrangements as he deems fit, for carrying on the
office of Secretary of Gram Panchayat or [Chief Executive
Officer of Janpad Panchayat or Zila Panchayat] as the case
may be. A person while carrying on such office shall exercise
all powers conferred by this Act or rules made thereunder on
the Secretary of Gram Panchayat or [Chief Executive Officer of
Janpad Panchayat or Zila Panchayats] as the case may be.
(5) The Secretary of the Gram Panchayat, the [Chief
Executive Officer of the Janpad Panchayat and Zila
Panchayat] shall be responsible for keeping and maintaining
the records of the Gram Panchayat, Janapad Panchayat or Zila
Panchayat as the case may be.”
8
 After amendment vide M.P. Act No.26 of 2012 [23-5-2012],
the opening para of sub-Section (1) of Section 69 was substituted and in the
second proviso thereunder, the word “Secretary” was substituted. The
opening part of sub-Section (1) of Section 69 as applicable to the present
case, now reads thus :-
“69. Appointment of Secretary and Chief Executive
Officer.- (1) [The State Government or the prescribed authority
may appoint a Secretary and one or more Assistant Secretaries
for a Gram Panchayat, who shall discharge such functions and
perform such duties as may Secretary and one or more
Assistant Secretaries for a Gram Panchayat, who shall
discharge such functions and perform such duties as may be
assigned to them by the State Government or prescribed
authority:]”
Rest of the Section has been retained as it is, except the
substitution of word “Secretary” in the second proviso below sub-Section (1)
of Section 69, which now reads as “Secretary or Assistant Secretary”.
10. Be that as it may, from the aforesaid provision it is clear that Section
69 of the Act of 1993 gives an independent power to the State Government
or the prescribed Authority to appoint Secretary and one or more Assistant
Secretaries for a Gram Panchayat. This power is an independent power
given to the State Government or the prescribed Authority in addition to the
power vested in it under the Panchayat Karmi Yojna, which was introduced
by the Government on 12th September, 1995.
11. The State Government has made Rules named as Madhya Pradesh
Panchayat Service (Discipline and Appeal) Rules, 1999 in exercise of
powers conferred by sub-section (1) of Section 95 read with sub-section (2)
of Section 70 of the Act of 1993. Rule 1 (3) of the aforesaid Rules prescribes
that the Rules shall apply to all persons employed in connection with the
affairs of Gram Panchayat. The Rule 1 (3) reads as under :
9
“(3) Except as otherwise provided by or under these
rules, they apply to all persons employed in connection with the
affairs of Zila Panchayats, Janpad Panchayats and the Gram
Panchayats, and discharging the functions of Zila Panchayat,
Janpad Panchayat and Gram Panchayat.
Provided that nothing in these rules shall apply to
officers and servants of the state service who are posted under
the Panchayats under Section 69 or are on lone service to the
panchayats under section 71 of the Act.”
 Rule 2 provides for definition inter-alia of ‘Appointing
Authority’, ‘Disciplinary Authority’, ‘Member of Panchayat Service or a
Panchayat Servant’ and ‘Panchayat Service’ which read thus :-
“2. Definitions.- In these rules, unless the context otherwise
requires :-
(a) ……..
(b) “Appointing authority” in relation to a person appointed in
the Panchayat service means :-
(1) Such officer, who in that service in which he hold
the post at that time, empowered to make appointments or
such officer to whom the powers of appointment is
delegated to the service of that class or grade to which he
is a member at that time.
(2) Such officer, who at that time, hold the post in
substantive or temporary capacity in that service in which
he is appointed.
(c) “Disciplinary Authority” in relation to the imposition of
penalty on a member of the Panchayat service means the
authority declared to be the disciplinary authority under the
Appendix appended to these Rules;
(d) ……..
(e) ……..
(f) “Member of Panchayat Service or a Panchayat Servant”
means any person appointed to the Panchayat Service and
includes an officer or servant allocated to the panchayat service;
(g) ……..
(h) ……..
(i) ……..
(j) “Panchayat Service” means any Panchayat Service.”
 Part II of the Rules of 1999 makes provision for suspension.
Rule 4 reads thus :-
“4. Suspension. – (1) The appointing authority or any
authority to which it is subordinate, or disciplinary authority in
10
that behalf, may place a member of Panchayat Service under
suspension :-
(a) Where a disciplinary proceeding against him is
contemplated, or is pending or
(b) Where a case against him in respect of any
criminal offence involving moral turpitude is under
investigation inquiry or trial:
Provided that where the order of suspension is made by
an authority subordinate to or lower in rank than the appointing
authority, such authority shall forth with report to the
appointing authority the circumstances in which the order was
made.
 (2) A member of Panchayat Service shall be deemed to
have been placed under suspension by an order of appointing
authority :-
 (a) With effect from the date of his detention, on a
criminal charge or otherwise, for a period exceeding
forty eight hours,
 (b) With effect from the date of his conviction, if the
event of a conviction for an offence, he is sentenced to
a term of imprisonment exceeding forty eight hours and
is not forthwith dismissed or removed or compulsorily
retired consequent upon such conviction.
Explanation. – The period of forty eight hours referred
to in clause (b) of this sub-rule shall be computed from the
commencement of the imprisonment after the conviction and
for this purpose, intermittent periods of imprisonment if any,
shall be taken into account.
 (3) When a penalty of dismissal, removal or compulsory
retirement from service imposed upon a member of panchayat
service under suspension is set aside in appeal or on review
under these rules and the case is remitted for further inquiry of
or action or with any other directions, the order of his
suspension shall be deemed to have continued in force with
effect on and from the date of the original order of dismissal,
removal or compulsory retirement and shall remain in force
until further orders.
 (4) Whether a penalty of dismissal, removal or
compulsory retirement from service imposed upon a member of
panchayat service is set aside or declared or rendered void in
consequence of or, by a decision of a court of law, and the
Disciplinary Authority on a consideration of the circumstances
of the case, decides to hold a further inquiry against him on the
allegations on which the penalty of dismissal, removal or
compulsory retirement was originally imposed, the member of
panchayat service shall be deemed to have been placed under
suspension by the appointing authority from the date of the
original order of dismissal, removal, compulsory retirement and
shall continue to remain under suspension until further orders.
11
 (5) (a) An order suspension made or deemed to have
been made under this rule shall continue to remain in force until
it is modified or revoked by the authority competent to do so.
 (b) Where a member of Panchayat Service is suspended
or is deemed to have been suspended in connection with any
disciplinary proceeding or otherwise and any other disciplinary
proceeding is commenced against him during the continuance
of such suspension, the authority competent to place him under
suspension may, for reasons to be recorded by him in writing,
direct that the member of Panchayat Service shall continue to
be under suspension until the termination of all or any of such
proceedings.
(c) An order of suspension made or deemed to have been
made under this rule, may at any time be modified or revoked
by the authority which made or is deemed to have made it or by
any authority to which, that authority is subordinate.”
 Part III of the Rules of 1999 prescribes discipline and Rule 5
prescribes penalties, minor penalties and major penalties. One major penalty
in accordance with the Rule 5-(b) (iv) is reduction in rank. The Rule reads as
under :
“(b) Major penalties –
(iv) Reduction in rank including reduction to a lower post or
time-scale or to a lower stage in a time-scale.”
12. Rule 7 prescribes procedure imposing major penalties. Rule 6
prescribes authority to impose penalties. It reads as under :
“6. Authority to impose penalties.- Subject to the
provisions of these rules, the disciplinary authority or any
authority to whom such authority is subordinate, may impose
any of the penalties specified in rule 5 on any servant of the
panchayat service to the extent shown against in the Appendix
appended to these rules.”
13. In accordance with the aforesaid Rules, Disciplinary Authority
or any prescribed Authority is empowered to impose the penalty to the
extent shown against the Appendix to the Rules. In accordance with the
12
Appendix appended to the Rules in relation to Gram Panchayat Secretary the
General Administration Committee is empowered to impose minor and
major penalty. The relevant provision reads as under :
S.
No.
(1)
Class of
Panchayats
(2)
Class of
Service
(3)
Disciplinary
Authority
(4)
Kind of penalty
referred to in
rule 5 which
may be
imposed
(5)
Appellate
Authority
(6)
5. Gram
Panchayat
Class IV
Class III
Secretary
General
Administration
Committee
General
Administration
Committee
General Body
Minor Penalty
Major Penalty
Minor Penalty
Major Penalty
Gram
Panchayat
General
Body
General
Body
Sub
Divisional
Officer
(Revenue)
14. On a bare reading of the first proviso below sub-Section (1) of Section
69, it is clear that a person holding the charge of Secretary of Gram
Panchayat immediately before the commencement of the Act of 1993 was
allowed to be continued to function as such till the Secretary was appointed
in accordance with this section. This proviso clearly points out that the
appointment of a person must be on the post of Secretary. Whereas, person
appointed as Panchayat Karmi and called upon to discharge the duties of the
Secretary by issuance of notification in that behalf by itself, does not result
in making substantive appointment of such person on the post of Secretary
of Gram Panchayat as such. Only that person who was directly appointed as
Secretary of Gram Panchayat and by denotifying him later on is appointed or
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posted as Panchayat Karmi, could at best make a grievance of being reduced
in rank. But, on the other hand, if the person is initially appointed as
Panchayat Karmi which is his substantive appointment against that
substantive post, is asked to discharge the duties of Secretary, by virtue of
de-notification would not result in reduction of his rank or demotion; but
would result only in withdrawal of his powers of Secretary which he was
asked to discharge as per the notification issued for that purpose. For doing
so, there would be no need to give opportunity of being heard to such
person as he could not have claimed any vested right in the post of Secretary
of Gram panchayat, being appointed against the substantive post of
Panchayat Karmi only.
15. The fact that it is open for the Appropriate Authority to give charge of
the Secretary to any employee of the Gram Panchayat is reinforced from
sub-Section (4) of Section 69. It postulates that during the absence of
Secretary of Gram Panchayat (means directly appointed on the post of
Secretary), it is open to the prescribed Authority to make such arrangements
as he deems fit for carrying on the office of Secretary of Gram Panchayat;
and the person so nominated would be competent to exercise all powers
conferred by the Act of 1993 and Rules made thereunder as the Secretary of
Gram Panchayat. This power to nominate any employee of the Gram
Panchayat to discharge the duties and functions of the Secretary of Gram
Panchayat during the absence of directly appointed Secretary, would include
power to withdraw that arrangement, if the situation so warrants. For
withdrawing that arrangement, the Authority is not required to give prior
opportunity to the person to whom such charge of Secretary has been
invested as a temporary measure. For, the person discharging the additional
duties cannot claim right to continue in the said post unless the reason for
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withdrawal visits him with civil consequences. Withdrawal of nomination of
additional charge of Secretary, cannot be equated with suspension from the
post as such. There is marked difference between withdrawing the additional
charge given to an officer and of suspending him from the office held by
him as a substantive post. As regards suspension, the Discipline and Appeal
Rules of 1999 postulates two situations - when the member of Panchayat
service can be placed under suspension. None of the two situations referred
to in Rule 4 of the Rules of 1999 are relevant, when it is a case of
withdrawal of additional power of Secretary invested in the person
appointed as Panchayat Karmi of the Gram Panchayat. The suspension
necessarily means, suspension from the substantive post held by that person.
In case of withdrawal of additional power of Secretary, the person would
continue to occupy the post of Panchayat Karmi substantively held by him
and can avail all the benefits thereunder until placed under suspension qua
that post, in terms of Rule 4 of the Rules of 1999. Further, as there is no
provision in the schedule appended to the Rules of 1999 in regard to
imposition of penalty on a Panchayat Secretary, if a Panchayat Karmi is
de-notified or prohibited to work as Panchayat Secretary for a particular
period, it would not amount to reduction in rank or removal from service
because he would still continue to work as Panchayat Karmi and he would
be able to get the honorarium fixed by the Panchayat. No additional benefit
of pay has been prescribed to a Panchayat Karmi after his notification as
Panchayat Secretary. He is assigned certain duties to be performed by
Panchayat Secretary after his notification in accordance with the provisions
of Section 69 of the Act of 1993.
16. The Division Bench of this Court in the matter of Lalla Prasad
Burman (supra) has observed as under in regard to withdrawal of charge of
15
Secretary of Gram Panchayat by way of making a de-notification under
Section 69 (1) of the Act of 1993. The Division Bench held as under :
5. After hearing learned counsel for the parties, we
find that the Collector, Shahdol has lost sight of the Madhya
Pradesh Panchayat Service (Discipline and Appeal) Rules,
1999 (for short ‘the Rules, 1999) while passing the order dated
29.06.2007 denotifying the appellant as Panchayat Secretary
under Section 69 (1) of the Act. Sub-rule (3) of Rule 1 of the
Rules, 1999 states that except otherwise provided by or under
these rules, they apply to all persons employed in connection
with the affairs of inter alia the Gram Panchayat and
discharging the functions of Gram Panchayat. Secretary of
Gram Panchayat is employed in connection with the affairs of
Gram Panchayat and discharging the functions of Gram
Panchayat. Hence, the Rules, 1999 are applicable to him. It is
not disputed that the appellant was notified as Panchayat
Secretary as far back as on 12.10.1999 and is working as such
Panchayat Secretary for about eight years. Hence, any action
against the appellant for misconduct could only be taken in
accordance with the Rules, 1999 and not otherwise.
 6. Part III of the Rules, 1999 provides for penalties.
Rule 5 categorized the minor penalties and the major penalties
which can be imposed on a member of the Panchayat Service.
Under clause (b) major penalties which can be imposed on a
member of a Panchayat Service have been enumerated and
reduction in rank and removal from service have been
categorized as major penalties. When a Secretary of a Gram
Panchayat is either reverted to the rank of Panchayat Karmi or
removed from the post of Secretary, he suffers a major penalty
mentioned under clause (b) of Rule 5 of the Rules, 1999.
 7. Rule 7 of the Rules, 1999 provides that no order
imposing on a member of the Panchayat Service; any of the
major penalties shall be passed except after a formal inquiry is
held as far as may be in the manner provided therein. Hence,
16
unless the procedure laid down in the Rule 7 of the Rules, 1999
is followed, the Secretary of the Gram Panchayat cannot be
removed or reverted from the post of Secretary, Gram
Panchayat. Therefore, the stand taken by the appellant that he
could not have been removed from the post of Secretary, Gram
Panchayat or could not have been reverted to a lower post of
Panchayat Karmi without any inquiry appears to be correct.
17. The Division Bench has placed reliance on Sub-rule (3) of Rule 1 and
held that the provisions of Rule of 1999 are applicable to Panchayat
Secretary. The Division Bench further held that the Secretary of Gram
Panchayat could not have been reverted to a lower post of Panchayat Karmi
without an inquiry. The Division Bench has not considered the aspect that
whether the nomination as Panchayat Secretary amounts to promotion from
the post of Panchayat Karmi or the post of Panchayat Karmi is lower to the
post of Panchayat Secretary, as the case may be. As stated earlier, there was
no difference between the salary of Panchayat Secretary and Panchayat
Karmi because no additional allowance was paid to the Panchayat Karmi
after his notification as Panchayat Secretary before coming into force the
Rules of 2011.
18. The Supreme Court in the matter of The High Court, Calcutta and
another vs Amal Kumar Roy and others reported AIR 1962 Supreme Court
1704 has held as under in regard to reduction in rank.
“The plaintiff sought to argue that “rank”, in
accordance with dictionary meaning, signifies “relative
position or status or place”, according to Oxford English
Dictionary. The word “rank” can be and has been used in
different senses in different contexts. The expression “rank” in
Art. 311(2) has reference to a persons’s classification and not
his particular place in the same cadre in the hierarchy of the
17
service to which he belongs. Hence, in the context of the
Judicial Service of West Bengal, “reduction in rank” would
imply that a person who is already holding the post of a
Subordinate Judge has been reduced to the position of a
Munsif, the rank of a Subordinate Judge being higher than that
of a Munsif. But Subordinate Judges in the same cadre hold the
same rank, though they have to be listed in order of seniority in
the Civil List. Therefore, losing some places in the seniority list
is not tantamount to reduction in rank. Hence, it must be held
that the provisions of Article 311(2) of the Constitution are not
attracted to this case.”
19. A Constitution Bench of the Supreme Court in a celebrated case
Parshotam Lal Dhingra vs. Union of India reported in AIR 1958 SC 36 has
held as under in regard to reduction in rank :
 “Applying the principles discussed above it is quite clear
that the petitioner before us was appointed to the higher post on
an officiating basis, that is to say, he was appointed to officiate
in that post which, according to Indian Railway Code, R. 2003
(19) corresponding to F. R. 9 (19) means, that he was
appointed only to perform the duties of that post. He had no
right to continue in that post and under the general law the
implied term of such appointment was that it was terminable at
any time on reasonable notice by the Government and,
therefore, his reduction did not operate as a forfeiture of any
right and could not be described as reduction in rank by way of
punishment.”
20. When a Panchayat Karmi is notified to work as Panchayat Secretary
in accordance with the provisions of Section 69 of the Act of 1993, he has to
perform certain duties in accordance with the provisions of the Act of 1993
and Rules made thereunder and further he enjoys a position in accordance
with the provisions of the Act of 1993. Under Section 69 of the Act of 1993
no pay scale or pay of Panchayat Secretary is fixed neither his service
18
conditions are prescribed nor there is a provision of disciplinary control.
Hence, it cannot be said that the Panchayat Secretary was considered
independent post or a promotional post from the post of Panchayat Karmi.
Even under the Scheme of 1995 named as Panchayat Karmi Yojna a
Panchayat Karmi is eligible to get an honorarium.
21. The Division Bench in Lalla Prasad Burman (supra) has not
considered these aspects while holding that the Rules of 1999 are applicable
to the Panchayat Secretary that as per the schedule appended with the Rules
of 1999 for Gram Panchayat Class IV and Class III services, the Panchayat
Secretary and the General Body of the Gram Panchayat is authorized to
impose minor and major penalty. However, as per Section 69 of the Act of
1993 the State Government or the prescribed Authority has been empowered
to nominate or designate the incumbent as a Panchayat Secretary. It means
that the State Government or the prescribed Authority is the Disciplinary
Authority of Panchayat Secretary. The Rules of 1999 cannot over ride this
statutory provision of the Act of 1993. In holding that the Panchayat
Secretary is governed by the Rules of 1999, there would be anomaly and
absurdity because the Disciplinary Authority in regard to Panchayat
Secretary as per Section 69 of the Act of 1993 is quite different than the
disciplinary authority of Panchayat employee mentioned in the Appendix of
the Rules of 1999.
22. It is well settled principle of Rule of interpretation that interpretation
which would lead to absurdity and inconsistency must be avoided, as held by
the Constitution Bench judgment of the Supreme Court in the matter of The
Central India Spinning and Weaving and Manufacturing Co., Ltd., The
19
Empress Mill, Nagpur vs. The Municipal Committee, Wardha, AIR 1958
Supreme Court 341.
23. In Kunjan Singh vs. State of M.P. and others, 2003 (3) M.P.H.T.
370, the learned Judge did not consider the fact that Disciplinary Authority
in the Rules of 1999 is different in regard to Disciplinary Authority
mentioned in Section 69 of the Act of 1993. That has also not been
considered by the Division Bench of Chhattisgarh High Court in Rooplal
Nayak vs State of Chattisgarh and others, reported in (2006) 4 M.P.H.T.
99. Hence, these cases are distinguishable. In the case of Mool Chand Soni
vs. State of M.P. reported in (2007) 1 M.P.L.J. 343, the petition was
disposed off with the observation that the petitioner can avail alternate
remedy of appeal. None of the cases cited by the learned counsel for the
appellant has noticed the legal position as discussed hitherto, hence, the
cases are distinguishable.
24. On the basis of above discussion, in our opinion, the nomination of
Panchayat Karmi of the Gram Panchayat as Panchayat Secretary, prior to
coming into force of the statutory Rules named as Madhya Pradesh
Panchayat Service (Gram Panchayat Secretary Recruitment and Conditions
of Service) Rules, 2011, was a pleasure appointment. For that reason, the
Panchayat Secretary could be de-notified by the State Government or the
prescribed Authority in accordance with the procedure prescribed by the
Government in this regard.
25. The learned Deputy Advocate General placed circular issued by the
Panchayat and Rural Development Department dated 02.11.2006. It is
mentioned in the circular that the State had taken a decision that before
removal of Panchayat Secretary the Sub-Divisional Officer shall conduct an
20
inquiry and adopt quasi judicial procedure and he shall afford opportunity of
hearing to the concerned persons and thereafter, he shall take appropriate
decision and the action be taken against the Panchayat Secretary in
accordance with the decision taken by the Sub-Divisional Officer (Revenue).
26. We answer the reference in affirmative by holding that the case of
Lalla Prasad Burman vs State of M.P. and others, reported in 2008 (3)
M.P.L.J. 394 does not expound the correct law – to the extent of
applicability of Rules of 1999 in regard to Panchayat Karmi nominated as
Panchayat Secretary prior to coming into force of the Rules of 2011.
However, after introduction of the circular dated 02.11.2006, action against
the Panchayat Secretary nominated prior to coming into force of Rules of
2011, was required to be taken in accordance with the said circular issued by
the Department.
27. We further hold that the powers of a Panchayat Secretary appointed
prior to coming into force of the Rules of 2011, could be suspended
temporarily or withdrawn (de-notified) – without serving a show cause
notice or by giving an opportunity of hearing in the event of registration of a
criminal case against him.
28. Now we may revert to the dispensation in relation to the
appointments made on the post of Gram Panchayat Secretary post-Rules of
2011. These Rules are called Madhya Pradesh Panchayat Service (Gram
Panchayat Secretary Recruitment and Conditions of Service) Rules, 2011.
Rule 3 provides for definition inter alia of ‘Appointing Authority’, ‘Gram
Panchayat Secretary’ and ‘Qualification’, which read thus :-
 “3.Definitions.- (1) In these rules unless the context
otherwise requires,-
 (a) ……..
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 (b) “Appointing Authority” with respect to Gram
Panchayat Secretary means the Chief Executive Officer, Zila
Panchayat;
 (c) …….
 (d) “Gram Panchayat Secretary” means such person
appointed by Chief Executive Officer, Zila Panchayat in the
Gram Panchayat coming under its control;
 (e) …….
 (f) “Qualification” means the qualification for Gram
Panchayat Secretary as specified in Schedule II;”

29. Rule 5 provides for method of absorption and selection. The
incumbents who were nominated as Gram Panchayat Secretary and holding
that office immediately before the commencement of the said Rules, were
absorbed to the post and pay scale of Gram Panchayat Secretary through a
one time absorption on specified terms. In the present case, which came up
for consideration before the Division Bench, admittedly, it is an appointment
made on the post of Panchayat Karmi for the session 2007-08. He was
notified as Secretary of the said Panchayat on 14.09.2012, after coming into
force Rules of 2011. As a result, the provision regarding absorption to the
post and pay scale of Gram Panchayat Secretary did not arise, nor it is a case
where the appellant has been substantively appointed on the post of Gram
Panchayat Secretary post-Rules of 2011. Thus, the case before the Division
Bench was in respect of the first category of appointment on the post of
Panchayat Karmi and notified to discharge duties and functions of Gram
Panchayat Secretary in absence of the Secretary directly appointed on that
post. Not being a case of substantive appointment on the post of Gram
Panchayat Secretary, but only one of invested with powers of Gram
Panchayat Secretary, to such a case, the same principle as discussed earlier
must apply with regard to the consequence of withdrawal of nomination. In
other words, cases in which charge of Secretary is given to a Panchayat
Karmi of the Gram Panchayat by issuance of notification, it would not be a
22
case of suspension but limited to withdrawal of charge of the Secretary.
Even in respect of suspension of the member of Panchayat service in terms
of Rule 4, if applicable does not require prior notice, unlike in the case of
procedure to be followed for taking disciplinary action and imposing
penalty. Had it been a case of appointment of a Panchayat Karmi who
entered Panchayat service prior to coming into force of Rules of 2011 and
after coming into force of the said Rules having been absorbed or
substantively appointed on the post of Gram Panchayat Secretary; and as a
consequence of order issued by the Appropriate Authority, he would stand
reverted to his original post of Panchayat Karmi, the question of giving him
opportunity of hearing may arise.
30. After the Rules of 2011, the post of Gram Panchayat Secretary has
been made a substantive post. The incumbent may be absorbed or freshly
appointed against that substantive post, as the case may be. For being
appointed to that post, the procedure prescribed in the said Rules will have
to be followed. As regards discipline and control, Rule 7 of the Rules of
2011 stipulates that Rules of Madhya Pradesh Panchayat Services (Conduct)
Rules, 1998 would apply. The Rules of 1998, however, do not provide for
the situation in which the incumbent can be placed under suspension or for
imposing penalty. For that, the principle underlying Discipline and Appeal
Rules of 1999 may have to be invoked - which apply to all persons
employed in connection with the affairs of Zila Panchayat, Janpad Panchayat
and Gram Panchayat and discharge the functions of Zila Panchayat, Janpad
Panchayat and Gram Panchayat. The exception is only of officers and
servants of the State service who are posted under the Panchayats under
Section 69 or are on lone service to the Panchayats under Section 71 of the
Act of 1993. Any person, if appointed as Panchayat Karmi or Gram
23
Panchayat Secretary, may be considered as a member of Panchayat service
or Panchayat servant to whom Rules of 1999 would apply in respect of
action of suspension or disciplinary proceedings, as the case may be.
However, as aforesaid, withdrawal of charge bestowed on any employee of
the Gram Panchayat to discharge the duties and functions of Secretary of the
Gram Panchayat cannot and does not result in disciplinary action or for that
matter reduction in rank or suspension. In the present case, the appointment
of the appellant is on the substantive post of Panchayat Karmi with investure
of charge of Gram Panchayat Secretary after coming into force of Rules of
2011; and for which reason, it was always open to the Authority to withdraw
the said charge for which prior notice was not required to be given.
31. We, accordingly, conclude that the legal principles stated in the case
of Lalla Prasad Burman (supra) of the Division Bench to hold that prior
notice should be given in such a case, is not the correct position of law. We
hold that no prior notice or opportunity of hearing before suspension of the
Gram Panchayat Secretary or for that matter withdrawal (de-notified) of
such charge given to the Panchayat Karmi, is required to be given by the
competent Authority to the concerned employee much less who is facing
serious criminal case.
32. We answer the reference accordingly.
33. As the reference has been answered, appeal be placed before
the appropriate Court for further consideration on any other questions and
for decision on merits.
(A.M. Khanwilkar) (S. K. Gangele) (Alok Aradhe)
 Chief Justice Judge Judge
Vkt.
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