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2005 DIGILAW 59 (PAT)

Amod Kr. Singh v. State

2005-01-19

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ORDER Heard Shri Jitendra Kumar Roy for the petitioners and Sri Rajeshwar Prasad, G.P.VI for the State. 2. Petitioners are Dalpatis and are being paid stipend of Rs. 175 per month. They have filed this writ application for a direction to the respondents - State of Bihar and its functionaries to make appointment on the vacant post of Panchayat Sewak (Secretary) in the district of Gopalganj. Petitioners have earlier approached this court in C.W.J.C. No. 11078/1996 which was disposed of under order dated 4.12.1996, annexure - 3, directing the State respondents to create 23 posts of Panchayat Sewak in the district of Gopalganj, so that, in every gram panchayat there should be a Panchayat Sewak (Secretary) for carrying out the duties and responsibility of the panchayat enshrined in the 11th Schedule of the Constitution of India and the provisions contained in the Bihar Panchayati Raj Act, 1993 (here in after referred to as the 'Act') and there after to make recruitment on those posts in accordance with law. In compliance of the aforesaid order of this court dated 4.12.1996, annexure - 3, the authorities of the State of Bihar after recommendation of the Personnel Administrative Committee sanctioned 843 posts, of Panchayat Sewak in the scale of Rs. 975 - 1540/- under memo No. 2610 dated 20.8.1988, annexure - 4, so that, in every panchayat of the State a Panchayat Sewak (Secretary) is appointed in terms of Section 32 of the Act to carry out the duties and responsibilities of the Panchayat enshrined in the Constitution of India and the Act. 3. It appears from the counter - affidavit filed by respondent Nos. 5 & 7 that appointment on the vacant post of Panchayat Sewak (Secretary) including 843 posts created under annexure - 4 could not take place as the State Government in view of financial stringency had imposed a , ban ,on class 3/4 appointments including posts sanctioned under non - plan head vide departmental circular No. 8560 dated 30.12.1986 which was further reiterated under departmental circular 4675 dated 27.7.1998 and letter No.10 dated 2.1.2002, annexure - B, to the said counter - affidavit. Perusal of circular letter No.10 dated 2.1.2002, annexure - B, further indicates that in the event any class - 3/4 post was necessarily required to be filled up then the Secretary of the concerned department had to take the approval for making such appointment from the Finance Department of the State Government. It also appears from the said counter - affidavit that procedure to fill up the vacant posts of Panchayat Sweak (Secretary) in the district of Gopalganj was initiated and in that connection District Selection Committee even selected 19 Dalpatis for appointment on the post of Panchayat Sewak in its meeting dated 8.9.2001 and there after referred the matter to the Divisional Commissioner, Saran for roster clearance. Having obtained the roster clearance from the Divisional Commissioner the District Magistrate under letter No. 231 dated 10.5.2002, annexure - A to the counter - affidavit even requested the Director, Panchayati Raj Bihar, Patna, to obtain necessary clear ance from the Finance Department for making the appointment on the vacant posts of Panchayat Sewak, as in terms of the circular dated 30.12.1986 & 27.7.1998 in view of prevailing financial stringency approval of the Finance Department was necessary for making appointment on those posts. 4. During the pendency of this writ application the State-respondents have filed a supplementary - counter - affidavit on behalf of the respondent No.2. Perusal where of indicates that, as the financial stringency continued, the State Government resolved not to make appointment on the post of Panchayat Sewak and decided to fill up the vacant post of Panchayat Sewak by giving additional charge to village level workers and Halka Karmchari and for that purpose resolution of the State Government bearing No. 3619 dated 29.10.2003, Annexure - A to the supplementary - counter - affidavit was issued. Having made the aforesaid interim arrangement the State of Bihar framed Bihar Gram Panchayat Appointment Powers and Duties of Secretary)' Rules, 2003, in terms of the provisions contained in Section 121 of the Act. Those rules were notified under notification bearing No. 188 dated 15.1.2004, annexure - B, to the supplementary – counter - affidavit. Perusal of those rules further indicates that the rules have been made effective with retrospective effect from 27.7.2001. Those rules were notified under notification bearing No. 188 dated 15.1.2004, annexure - B, to the supplementary – counter - affidavit. Perusal of those rules further indicates that the rules have been made effective with retrospective effect from 27.7.2001. In terms of Subrule (3) of Rule 3 of the Rules District Magistrate of every district has been authorised to depute eligible village level workers, Revenue Karmchari, to perform the functions and duties of the Secretary of the Gram Panchayat. 5. Learned counsel for the petitioners has filed rejoinder with which they have brought on record instructions of the Chief Secretary issued from the Finance Department bearing memo No. 6139 dated 23.8.2004, annexure - 8. Perusal where of indicates that the ban imposed on class 3/ 4 appointments on account of financial stringency under circular letter No. 8560 dated 30.12.1986 & 4675 dated 27.7.1998 has since been revoked and the appointing authorities are empowered to proceed with the appointment on class-3/4 post without the approval of the State Government. 6. Counsel in support of this application submitted that the State Government and the respondent authorities are obliged to fill up the vacant post of Panchayat Sewak (Secretary) within the district of Gopalganj including those posts which have been created under memo No. 2610 dated 20.8.1998, annexure - 4, as directions to that effect were issued by this court way back in 1996 when order dated 4.12.1996, annexure - 3, was passed. Learned counsel further submitted that it appears from the counter - affidavit of respondent Nos. 5 & 7 that respondent authorities did not comply those directions, as there was financial stringency in the State and State Government had imposed a ban on making appointment on class - 3/4 post including the post which are within the non - plan head. Learned counsel further submitted that it appears from the counter - affidavit of respondent Nos. 5 & 7 that respondent authorities did not comply those directions, as there was financial stringency in the State and State Government had imposed a ban on making appointment on class - 3/4 post including the post which are within the non - plan head. The ban imposed in 1986 was reiterated in 1998 and further reiterated in 2002 under letter No.10 dated 2.1.2002, annexure - B, has since been revoked under the letter of the Chief Secretary bearing memo No.6139 dated 23.8.2004, annexure - 8, as such, the respondent authorities now by framing the Rule under Section 121 of the Act and notifying the same with retrospective effect from 27.7.2001 can not prevent the Dalpatis from being considered for appointment on the post of Panchayat Sewak (Secretary) as when the direction to create and fill up the vacant post of Panchayat Sewak was issued on 4.12.1996, annexure - 3, the present rules notified on 15.1.2004, annexure - B, were not in existence. In this connection, he referred to Sections 32, 121 & 142 of the Act and submitted that rules notified on 15.1.2004 can not be made effective from retrospective dated 27.7.2001, as in terms of Subsection (2) of Section 121 of the Act the reasons for making the rules retrospective were neither specified nor laid before the Houses of the State legislature as is specifically required under Subsection (2) of Sections 121 and 142 of the Act. In sum and substance learned counsel for the petitioners submitted that appointment on the post of Panchayat Sewak (Secretary) in terms of the High Court's order dated 4.12.1996, annexure - 3, could not be made as the State was passing through a phase of grave financial stringency w.e.f.30.12.1986 which continued until 23.8.2004 and during that period the petitioners and other Dalpatis patiently waited for removal of the financial stringency and now after removal of the financial stringency w.e.f. 23.8.2004 they are being told that in terms of the Rules notified on 15.1.2004, annexure - B, w.e.f. 27.7.2001 they are not eligible for appointment on the post of Panchayat Sewak (Secretary). According to learned counsel provisions of the Rules can not have any retrospective operation on account of non compliance of the provisions contained in subsection 2 of Section 121 and Section 142 of the Act and the petitioners and other Dalpatis are eligible for appointment on the post of Panchayat Sewak (Secretary). 7. On the other hand, Shri Rajeshwar Prasad, G.P.VI, with reference to the counter - affidavit and supplementary -counter - affidavit, submitted that the rules have been notified on 15.1.2004 with retrospective effect, i.e., on 27.7.2001 and, according to him, with effect from that date all the circulars as also the rules framed for the purpose of appointment on the post of Panchayat Sewak (Secretary) stands superseded and the petitioners, who are holding the post of Dalpatis, are not within the zone of consideration for appointment on the post of Panchayat Sewak and, as such, this writ application may be dismissed. 8. Having heard the counsel for the parties and having perused the pleadings filed by them, I am of the view that the Rules. Annexure - B. have been notified with retrospective effect without indicating specific reasons for notifying the same with retrospective effect as also without placing those Rules Before the Houses of Legislature as is required under Sections 121 (2) & 142 of the Act accordingly the rules can not have retrospective operation unless reasons there for are specified and placed before the Houses of Legislature. Petitioners and other Dalpatis are paid stipend of Rs. 175 per month they have been waiting patiently for financial position of the State to improve, so that the ban imposed on appointment of Panchayat Sewak (Secretary) since 1986 and reiterated from time to time is removed and they are considered for appointment on the post of Panchayat Sewak (Secretary). Petitioners and other Dalpatis are paid stipend of Rs. 175 per month they have been waiting patiently for financial position of the State to improve, so that the ban imposed on appointment of Panchayat Sewak (Secretary) since 1986 and reiterated from time to time is removed and they are considered for appointment on the post of Panchayat Sewak (Secretary). Now when the ban imposed on the aforesaid appointment of Panchayat Sewak (Secretary) has been removed under instructions of the Chief Secretary Bihar issued from the Finance Department bearing letter No. 6139 dated 23.8.2004, annexure - 8, then it shall be highly arbitrary and violative of Article 14 of the Constitution to relegate the Dalpatis beyond the Zone of consideration for appointment on .the post of Panchayat Sewak (Secretary) by notifying the Rules with retrospective effect from 27.7.2001 without specifying reasons there for and placing those reasons in the Houses of Legislature as is required under Sections 121 (2) & 142 of the Act. It is, accordingly, held that petitioners and other Dalpatis are within the zone of consideration for appointment on the post of Panchayat Sewak (Secretary). Respondents have not filled up the posts of Panchayat Sewak (Secretary) created in terms of the orders of this court dated 4.12.1996 annexure - 3, on account of financial stringency and the ban imposed on those appointment has since been removed under the instructor s of the Chief Secretary, Bihar, issued from the Finance Department bearing letter No.6139 dated 23.8.2004, annexure - 8, as such the authorities are obliged to fill up all the vacant posts of the Panchayat Sewak (Secretary) created under letter No. 2610 dated 20.8.1998 annexure - 4, in compliance of the order of this court dated 4.12.1996, annexure - 3. The process to fill up the vacant posts of Panchayat Sewak (Secretary) within the district of Gopalganj was initiated much before the filing of the writ case should be completed within a period of four months from the date of receipt/production of a copy of this order. 9. The present writ application is allowed to the aforesaid extent. No cost.