ASHWANI KUMAR MISHRA - (1.) A temporary vacancy in the office of Pradhan has come into existence in Gram Panchayat Senta Khera, District Rampur, which is required to be filled by way of temporary arrangement in terms of Section 12-J of the U.P. Panchayat Raj Act, 1947. It appears that the right of elected Pradhan to continue in office travelled to this Court in Writ Petition No.30020 of 2018 and a Division Bench issued following directions on 23.10.2019:- "Accordingly, we direct the District Magistrate to restrain the respondent No. 6 from performing the duties of the Pradhan from the date of communication of this order. The District Magistrate shall file a compliance report by the next date. It is further directed that the sixth respondent shall not exercise any financial power also till the next date of listing. List on 11.12.2019 for final disposal. The office to furnish copy of this order without payment of usual charges learned Standing Counsel for the communication and compliance of this order."
(2.) It is thereafter that exercise has been undertaken to fill up the temporary vacancy culminating in passing of the impugned order dated 27th April, 2020 by the District Magistrate, Rampur. This order records that initially a direction was issued to the Block Development Officer to call for a meeting of the elected members of the Gram Panchayat and to determine their views in an open meeting but holding of such meeting was not found practicable on account of various restrictions imposed due to COVID-19 pandemic. The office of Pradhan is otherwise reserved for Scheduled Caste (women) candidate, and therefore temporary arrangement also had to be made from the same category. The elected members of Panchayat have supported candidature of two persons namely Smt. Kamlesh Devi (the petitioner) and Km. Pinki Gautam (respondent no.5). Both the candidates desirous of occupying the office of Acting Pradhan had the support of 08 members each and the letter of support of such members were placed before the prescribed authority. It appears that subsequently one of the persons who initially supported respondent no.5 switched side and gave a letter of support in favour of petitioner. The District Magistrate has also taken note of the fact that one Smt. Jannat D/o Mohd. Jaan was elected from Ward No.5, but four years back she got married to one Nasir Ahmad, who is a resident of a different village and that Smt. Jannat has started living with her husband and her name has also been included in the voter list of the other panchayat. The letter of support of Smt. Jannat has thus not been considered. The prescribed authority taking note of all such factual aspects has ultimately nominated respondent no.5 to act as Officiating Pradhan. Aggrieved by this order petitioner is before this Court.
(3.) Learned counsel for the petitioner submits that letter of Smt. Jannat has not been taken note of, according to which she continues to be a resident of this village but the authorities have not examined this aspect. Learned counsel has placed reliance upon a Division Bench judgment of this Court in the case of Pushpendra Kumar Vs. State of U.P. and others, Special Appeal No.164 of 2010, decided on 22.2.2010, wherein the provisions of Section 12-J readwith Rules 60 and 60-A of the U.P. Panchayat Raj Rules fell for consideration. The Bench made following observations:- "We have perused the provisions of Sections 11-B, 11-C, 12 and 12-H of the Act and Rules 60 and 60-A of the Rules referred to by the learned counsel for the Appellant. We find that Section 12-H deals with a contingency where the vacancy in the office of Pradhan or a Member of Gram Panchayat arises by reason of his death, removal, resignation etc. In such eventuality if the term remains due for more than 6 months, then the vacancy has to be filled up as provided in Sections 11-B, 11-C or 12 as the case may be. The proviso to Section 12-A provides that if the residue of the term is less than 6 months, the vacancy need not be filled under that section. Section 11-B provides for filling up of the post of Pradhan by direct election. Section 11-C has since been omitted by U.P. Act No.44 of 2007 w.e.f. 22.8.2007. Before its omission, it dealt with the election of Up Pradhan and its duration. Section 12 provides for constitution of Gram Panchayat. Sub-section 3-A of Section 12 which starts with a non-obstante clause, empowers the State or an Officer authorized in this behalf to appoint an administrative Committee for running the Gram Panchayat in case the election is not feasible. However, Section 12-J deals with a situation for making temporary arrangement in certain cases. It provides for a contingency where the office of the Pradhan is vacant by reason of death, removal, resignation or otherwise or where the Pradhan is incapable to act by reason of absence, illness or for any reason whatsoever, then the prescribed authority shall nominate a member of the Gram Panchayat, to discharge the duties and exercise the powers of Pradhan until such vacancy in the office of the Pradhan is filled in, or until such incapacity of Pradhan is removed. Rule 60 and 60-A of the U.P. Panchayat Raj Rules provide for the procedure under which Pradhan or Up Pradhan or Members can tender their resignation. Rule 60-A deals with the provisions for transfer of charge to Pradhan and other elected members. From a perusal of the provisions mentioned herein above, we are of the considered opinion that Section 12-H and 12-J have to be read harmoniously. Section 12-H deals with the permanent vacancy which may occur by resignation or otherwise on the post of Pradhan. It provides for filling up the vacancy by way of election as provided under Section 11-B and Section 12 of the Act where the residual term is more than 6 months. However, till the elections are held, a temporary arrangement has to be made taking recourse to the provisions of Section 12-J of the Act and the Prescribed Authority has been given power to nominate a Gram Pradhan to discharge the duty of the Pradhan. The provisions of Section 12-J came up for consideration before a Division Bench in the case of Udaivir (supra) and this Court has held that the Prescribed Authority has to act in accordance with the majority opinion of the Members of the concerned Gram Panchayat while nominating the officiating Pradhan. The law laid down in the aforesaid case is in consonance with the spirit of the provisions of Chapter IX inserted in our Constitution by the Constitution (Seventy third) Amendment Act 1992 which provides for constitution of Panchayats at the village, empowering the villagers to manage their affairs at the local level themselves. The learned counsel for the appellant has not been able to persuade us to take a different view. We are in respectful agreement with the view taken by the coordinate Bench in the case of Udai Veer (supra). In this view of the matter, we are of the considered view that the learned single Judge was right in directing the District Magistrate to ascertain the wishes of the Members of the Gram Panchayat before nominating any person on officiating basis to discharge the duties and functions of the Gram Pradhan. No other point has been pressed.";