GANBHIR SINGH Vs. DISTRICT MAGISTRATE BIJNOR

JUDGEMENT

(1.) This petition under Article 226 of the Constitu tion of India seeks to question the validity of an order dated October 10, 1974, whereby the Prescribed Authority under the U. P. Panchayat Raj Act set aside the appointment of the petitioner as a Panch of the Nyaya Panchayat on the ground that he was not qualified to be appointed to the said post. Brief facts are these. The petitioner was a member of the Gaon Panchayat of village Pauti, Pargana Chandpur, Tahsil and District Bijnor. He was appoin ted a Panch of the Nyaya Panchayat by the prescribed Authority under Section 43 of the said Act. Opposite party 2, Hari Singh, moved an application pray ing that the said appointment should be set aside on the ground that the peti tioner was illiterate and, therefore, under the relevant provisions contained in the Rules framed from time to time under the said Act, the petitioner was not entitled to be appointed as a Panch of the Nyaya Panchayat. This application was allowed by the Prescribed Authority by the aforesaid impugned order dated October 10, 1974. Aggrieved, the petitioner has now come up in the instant petition and in support thereof, we have heard Sri Sant Prakash, learned Counsel for the petitioner. The learned Counsel contended that the aforesaid order could not be passed by the Prescribed Authority because having once made the appoint ment, the said Authority had no power to set aside the same. In our opinion, this contention is incorrect. In this connection, a reference may be made to Section 16 of the U. P. General Clauses Act, 1904, which lays down that the power to appoint also includes the power to suspend, dismiss or otherwise terminate the tenure of the office concerned. The Prescribed Authority in the impugned order has clearly stated that at the time when the appointment was made, the relevant facts were not known which went to establish that the peti tioner was not able to read and write Deonagri script and, accordingly, he was not qualified to be appointed a Panch of the Nyaya Panchayat. In other words, the appointment was made in ignorance of the true facts which clearly establish ed the lack of qualification of the petitioner to be appointed to the said post even if we were to accept the technical correctness of the contention of the learned Counsel that the appointing authority was strictly not entitled to review his order and set aside the appointment, we would like to state that we would not consider it to be a fit case for interference in our jurisdiction under Article 226 of the Constitution. It is well known that the power to interfere under Article 226 is not to be exercised merely on the basis of technical infirmities or imperfections in the orders passed by the subordinate authorities and we are entitled to take into consideration the broad equities of the cases. Learned Counsel next contended that the proper remedy for the rectifica tion of the infirmities if there was any, in the appointment of the petitioner as a panch of the Nyaya Panchayat was by way of a course to Section 12-C of the said Act. A provision has been made by the said section for the filing of election petitions for quashing the election of a person as Pradhan of a Gaon Sabha or as member of a Gaon Panchayat (including the election of a person appointed a Panch of a Nyaya Panchayat under Section 43 ). Sri Sant Prakash contended that the expression "including the election of a person appointed as a Panch of the Nyaya Panchayat under Section 43", was to be interpreted as laying down that the appointment of a Panch of a Nyaya Panchayat can also be questioned by an election petition under Section 12-C. We do not accept this interpretation of Section 12-C. In our view, the aforesaid expression merely clarifies that the election of a member of the Gaon Panchayat can be questioned by an election petition and that will be so even if that member has been appointed as a Panch of the Nyaya Panchayat. The crux of the matter is that it is the election which is liable to be questioned under Section 12-C and as the phraseology of Section 43 clearly lays down, a Panch of the Nyaya Pan chayat is not elected, but he is appointed by the Prescribed Authority. There fore in our view, Section 12-C did not apply to the facts of the case. The petition, accordingly, fails and is dismissed, but there will be no order as to costs. .