RAM SINGH RAJPUROHIT Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS writ petition is directed against order dated 30. 4. 2007 passed by the Division Commissioner, Jodhpur, whereby the petitioner, an elected Sarpanch of Gram Panchayat, Rupawas having been found guilty of misconduct in the discharge of his duties, has been declared disqualified to hold the office and approval of the proposed action was sought from the Department of Panchayati Raj, Government of Rajasthan. The petitioner has also assailed the validity of letter of approval dated 24. 8. 07 issued by the State Government and order dated 5. 9. 07 passed by the Divisional Commissioner, Jodhpur declaring the post of the Sarpanch, Gram Panchayat, Rupawas as vacant in pursuance of the approval granted by the State Government as aforesaid.

(2.) BRIEFLY stated the facts relevant for the adjudication of the controversy involved in the present writ petition are that the petitioner was elected as Sarpanch of Gram Panchayat, Rupawas in the month of January, 05. During his tenure as Sarpanch, a work of construction of gravel road from Bhundaya Mata to Jodhpur was undertaken by the Gram Panchayat under the SGRY-30% Scheme. It is alleged that violating the norms laid down by the State Government for the construction of the work under the said Scheme, the petitioner got executed the work by using JCB machines and tractors. It was further alleged that the work was shown to be performed by the labourers by preparing fake muster roll. On receipt of a complaint alleging the irregularities committed by the petitioner, a preliminary inquiry was conducted by the Additional Executive Officer, Zila Parishad, Pali wherein he was found prima facie guilty. The preliminary inquiry report alongwith charge sheet and statement of allegation was submitted by the Additional Executive Officer to the Divisional Commissioner, Jodhpur, who in his turn issued a notice under Rule 22 of Rajasthan Panchayati Raj Rules, 1996 (in short "the Rules of 1996" hereinafter) to the petitioner to show cause as to why in exercise of power conferred by Section 39 (2) of Rajasthan Panchayati Raj Act, 1994 (in short ``the Act of 1994" hereinafter), he may not be declared disqualified to hold the office of the Sarpanch, Gram Panchayat, Rupawas. In response to the notice, the petitioner put in appearance and sought time for filing the reply. On 5. 4. 06, after hearing the counsel for the petitioner and representative of the Department of Panchayati Raj, the order was reserved by the Divisional Commissioner. It is stated that during the course of dictation of the order, it came to the notice of the Divisional Commissioner, Jodhpur that on the basis of preliminary inquiry report alone the charge against the petitioner has been held to be proved, accordingly, so as to extend opportunity of hearing to the petitioner in exercise of Rule 22 (3) of the Rules of 1996, the Sub Divisional Officer, Sojat was appointed as an inquiry officer and was directed to submit the inquiry report after giving an opportunity of hearing to the petitioner. After conclusion of the inquiry, the inquiry officer submitted the inquiry report wherein petitioner was found guilty of the charges of misconduct levelled against him. A copy of inquiry report was supplied to the petitioner and the notice for personal hearing was issued to him by the Divisional Commissioner, Jodhpur. After consideration of the material on record and hearing the petitioner, the Divisional Commissioner found the petitioner guilty of the charges of misconduct levelled against him and accordingly, while declaring him disqualified to hold the office of Sarpanch, ordered for reassessment of the construction work of the gravel road and to make recovery of the government dues alongwith penal interest. The approval of the State Government was sought and after receiving the requisite approval vide communication dated 24. 8. 07, in exercise of the power conferred by Section 39 (2) of the Act of 1994, vide order dated 5. 9. 07 passed by the Divisional Commissioner, Jodhpur, the post of Sarpanch of Gram Panchayat, Rupawas was declared vacant.

(3.) IT is contended by the learned counsel appearing on behalf of the petitioner that admittedly, the notification dated 28. 9. 99 issued by the State Government in exercise of the power conferred by Section 98 of the Act of 1994 delegating its powers to be exercised u/ss. 38 and 39 of the Act of 1994, to the Divisional Commissioners, has not been published in the official gazette, therefore, the delegation has not come into force till this date and thus, the proceeding initiated against the petitioner by the Divisional Commissioner is absolutely without jurisdiction and stands vitiated on this count alone. While reiterating the contentions raised in the writ petition noticed above, the learned counsel submitted that the entire proceeding initiated against the petitioner is total farce inasmuch as the preliminary inquiry on the basis of which the petitioner has been charge sheeted was conducted by the Additional Executive Officer, Zila Parishad, Pali, without authority of law. The learned counsel submitted that during the course of the inquiry conducted by the Sub Divisional Officer, Sojat under the directions of the Divisional Commissioner, Jodhpur, the petitioner was not afforded a reasonable opportunity of hearing inasmuch as, he was not permitted to cross examine the witnesses. The learned counsel urged that the Sub Divisional Officer so also the Divisional Commissioner has not considered the evidence on record in correct perspective. IT is submitted that the statements of the witnesses produced by the petitioner in his defence have been altogether ignored and whatever stated by the witnesses produced on behalf of the Department Panchayati Raj, who were not even permitted to be cross examined by the petitioner has been taken to be gospel truth. The learned counsel submitted that there exists no nexus between the material on record and conclusion arrived at. The learned counsel contended that even the State Government while granting approval has proceeded in mechanical manner without considering the reply submitted by the petitioner in response to the show cause notice. Accordingly, the learned counsel submitted that the entire proceedings taken against the petitioner stands vitiated.