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1999 DIGILAW 582 (PAT)

Mahesh Jha v. State of Bihar

1999-07-09

AFTAB ALAM

body1999
JUDGMENT Aftab Alam, J.- There are five petitioners in this case. They seek to challenge the directions given by the Collector, Sitamarhi to return their services from different Panchayat Samities to the Zila Parishad, Sitamarhi and to recover from the petitioners the salary paid to them in the capacity as Government servant while they worked in the Panchayat Samities on being transferred from the Zila Parishad. The impugned directions are contained in letter no. 212, dated 9.2.1994 (Annexure 5) issued by the Collector to the Deputy Development Commissioner-cum-Chief Executive Officer and Secretary, Zila Parishad, Sitamarhi. 2. Petitioners 1 to 4 were appointed, on different dates as Road Peons in the District Board, Muzaffarpur and were posted to work in the different blocks as stated in the writ petition; petitioner no.5 was appointed as a Road Peon in the District Board, Sitamarhi and was posted to work at Belsand block. It appears that after the abolition of the District Board, Sitamarhi with effect from 14.11.1998 the Deputy Development Commissioner took up correspondence with the Panchayati Raj Directorate regarding the adjustment/absorption of the petitioners. In reply to his letter dated 2.6.1988, he received a letter, dated 20.8.1988 (Annexure 1/1) from the Director, Panchayati Raj-cum-Addl. Secretary in the Government. In that letter, it has stated that the Road Peons of Sitamarhi Zila Parishad could be posted in Panchayat Samities for collection of bullock cart tax and be given the pay scale of Rs. 180-193-338-342, admissible to the Assessor. It was further stated that their payments would be made from the head "2515-other rural development programmes-District Panchayat Establishment. On the basis of the letter from the Director, Panchayati Raj, the Deputy Development Commissioner, Sitamarhi by his letter, dated 10.5.1989 (Annexure-1) addressed to the Block Development Officer, Panchayat Samiti, Pupri directed for transferring the services of the petitioners to the different Panchayat Samities as indicated in that letter. Pursuant to the letter issued by the Deputy Development Commissioner, the petitioners joined the respective Panchayat Samities and started getting their salary in the pay scale as indicated in the letter of the Director, Panchayati Raj. 3. Pursuant to the letter issued by the Deputy Development Commissioner, the petitioners joined the respective Panchayat Samities and started getting their salary in the pay scale as indicated in the letter of the Director, Panchayati Raj. 3. A few years afterwards with the revision of salary of Government employees in terms of the report of the 5th pay revision committee, a question arose regarding the scale of pay that might be given to the petitioners and in course of correspondence on that question it transpired that their transfer to the Panchayat Samities itself was on the basis of a letter was cancelled shortly after its issuance. 4. In response to a letter from the Deputy Development Commissioner, the Deputy Director, Panchayati Raj by his letter, dated 14.4.1994 pointed out that letter no. 6140, dated 20.8.1988 earlier issued by the Director, Panchayati Raj and on the basis of which the petitioners' services were transferred to the Panchayat Samities was cancelled by letter on 6359, dated 20.7.1989 issued by the Director. A copy of the letter, dated 20.7.1989 cancelling the earlier letter dated 20.8.1988 was also enclosed with the letter, dated 14.1.1994. It was on the basis of these two letters that the Collector issued the impugned order dated 9.2.1994 directing for the immediate return of the petitioners services to the Zila parishad and for taking steps for recovery of the amounts paid to them as salary in their capacity as Government employees. 5. In the counter affidavit filed on behalf of the respondents, it is stated that by notification no. 6189, dated 18.11.1980, the District Board, Sitamarhi was abolished, with effect from 14.11.1980 and the different functions being carried out by the District Board, Sitamarhi were assigned to the Zila Parishad, Sitamarhi and the Panchayat Samities. From the notification, dated 18.11.1980 (Annexure-A) it appears that the power to exercise control over vehicles and collecti6n of tax from vehicles, other than motor vehicles was assigned to Panchayat Samities. 6. The consequence of abclition of the District Board is provided in section 66(3) of the Bihar Panchayat Samiti & Zila Parishad Act, 1961 according to which the officers and other employees of the abolished. District Board would be absorbed in the establishment of the Zila Parishad or the Panchayat Samities or otherwise as the State Government may deem fit. 7. The consequence of abclition of the District Board is provided in section 66(3) of the Bihar Panchayat Samiti & Zila Parishad Act, 1961 according to which the officers and other employees of the abolished. District Board would be absorbed in the establishment of the Zila Parishad or the Panchayat Samities or otherwise as the State Government may deem fit. 7. It is further stated in the counter affidavit that in this case there was no direction of the State Government to absorb the petitioners in the Panchayat Samities as Government employees and hence they would continue to be the employees of the Zila Parishad coming in place of the abolished District Board. This according to the counter affidavit on behalf of the respondents was in terms of the proviso to sub-section (1) of section 50 of the Act which is as follows: "Provided that the posts in existence in the District Board on the day the Zila Parishad takes charge of office for the first time, shall be deemed to have been created under the Zila Parishad with the previous approval of the State Government." 8. It is further stated in the counter affidavit that letter, dated 20.3.1988 was issued by the Director, Panchayat Raj under a mistake of fact but when it was discovered that there was no Government decision to absorb the petitioners as Government employees, that letter was cancelled by the subsequent letter, dated 20.7.1989. 9. The stand of the respondent authorities as appears from the counter affidavit is that the services of the petitioners could not be transferred to the Panchayat Samities as there was no such decision or direction by the State Government and in the absence of any such decision they would continue to be the employees of the Zila Parishad in terms of the proviso to section 51 of the Act. 10. At this stage, it will be appropriate to take a look at section 66(3) of the Bihar Panchayat Samiti & Zila Parishad Act. It is as follows : "The Officers and other employees of the abolished District Board shall be absorbed in the establishment of the Zila Parishad or the Panchayat Samities or otherwise as the State Government may deem fit." (emphasis added) 11. It is as follows : "The Officers and other employees of the abolished District Board shall be absorbed in the establishment of the Zila Parishad or the Panchayat Samities or otherwise as the State Government may deem fit." (emphasis added) 11. The above quoted provision, makes it clear that it is incumbent upon the State Government to take decision concerning the officers and other employees of the abolished District Board as to whether they would be absorbed in the establishment of the Zila Parishad or the Panchayat Samities or otherwise. The proviso to section 51 of the Act only deals with the creation of posts and lays down that the posts in existence in the erstwhile District Board would be deemed to have been created under the Zila Parishad with the previous approval of the State Government. Section 50 or the proviso to its sub-section (1) does not deal with the question of absorption of the officers and the staff of the erstwhile District Board and in' that regard a decision has to be taken by the Government in terms of section 66(3) of the Act. 12. As regards the petitioners, it is further to be noted that they worked as Road Peons and after the abolition of the District Board, Sitamarhi, the work of collection of taxes on vehicles (other than motor vehicles) was assigned to the Panchayat Samities and, thus, the petitioners were left with no 1 work in the Zila Parishad. 13. From the materials on record of this case it is further clear that the State Government never took a decision in terms of section 66(3) of the Act on the question of absorption of the petitioners. First, a letter was issued by the Director, Panchayati Raj on 20.8.1988 permitting the transfer of the petitioners' services to the Panchayat Samities. Afterwards, by letter dated 20.7.1989 the Deputy Development Commissioner was directed that he was to find work for the petitioners and to take work from them treating them to be the employees of Zila Parishad. From neither of the two letters it appears that the State Government took a decision in terms of section 66(3) of the Act on a consideration of the material facts and circumstances of the case. 14. From neither of the two letters it appears that the State Government took a decision in terms of section 66(3) of the Act on a consideration of the material facts and circumstances of the case. 14. I accordingly direct the State Government to take a decision on the question of the petitioners' absorption in terms of section 66(3) of the Act after taking into account all the material facts and circumstances. The decision must be taken within three months from the date of receipt/production of a copy of this order. The petitioners' continuance in the different Panchayat Samities will abide by the final decision taken by the Government. Till a final decision is taken by the Government, the petitioners will continue to be treated as employees of the Panchayat Samities, having been transferred there by order, dated 6.5.1989. Needless to say that they will also be entitled to their salary from their respective Panchayat Samities. The petitioners' current salary as well as the arrears of their salary, if any, must be paid to them from their respective Panchayat Samities without any delay. 15. In the result, this writ petition is allowed subject to the aforesaid observations and directions.