KALAWATI DEVI Vs. DISTRICT PANCHAYAT RAJ ADHIKARI MIRZAPUR

JUDGEMENT

(1.) The petitioner has been removed from the post of Pradhan by non-confidence motion carried out against her in a meeting held on 30.7.1998. Mr. A. S. Diwakar learned counsel for the petitioner submits that the said motion was carried on after the writ petition was filed challenging the issue of the notice. Since in view of the decision of this Court that after the motion is carried on, the question of notice may not be gone into, Shri. Diwakar confined his submission on the merits of the motion that has been carried out. This fact has been brought by way of supplementary affidavit filed subsequently annexing the minutes of the 'No-Confidence Motion' itself.

(2.) Mr. Diwakar contends that Rule 33B of the U. P. Panchayat Rules, 1947 (hereinafter called as the Rules) in sub-rule (3) provides that after the discussion is over the motion shall be put to vote and the voting shall be by secret ballot. Sub-rule (5) prescribes the detail procedure as (o how the voting is to be conducted and the ballots are to be counted. According to him, in this case, this procedure has not been followed. On the other hand, on the alleged ground that 9 out of 10 members of the Panchayat who had participated in the meeting and or discussion had unanimously agreed that the petitioner should be removed and, therefore, there was no necessity of voting and accordingly, the motion was alleged to have been carried on. He contends further that by reason of such decision and the motion having not been put to vote by ballots, the entire democratic process has been flouted. He further contends that there has been an infraction of the sub-rules (3) and (5) of Rule 33B of the said Rules which are mandatory in nature and therefore has to be followed. Any infraction thereof would render the motion invalid.

(3.) Mr. C. B, Yadav, learned counsel for respondents on the other hand contends relying on various decisions that the procedure is only a procedure for determining the carriage of the no-confidence motion. Any infraction thereof would be an irregularity and will not invalidate the motion. So far as the sub-rule (2) of Rule 33B is concerned, according to him, it has been held by the Full Bench of this Court to be directory and not mandatory. Relying on the same analogy, he contends that the provisions contained in sub-rules (3] and (5) of Rule 33B of the said Rules are also directory and not mandatory and any infraction in respect thereof would only be an irregularity and not illegality resulting into invalidity. He next contends that the procedures are handmaids of Justice and it has to be seen whether there has been any substantial compliance of the procedure of the rules or whether the petitioner has suffered any prejudice. In the present case since all the participants in the meeting had openly agreed that the Pradhan should be removed 'and they having not asked for any ballot to keep their decision secret, the question of secrecy becomes irrelevant and immaterial. On all these grounds he submits that the writ petition should be dismissed.