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2006 DIGILAW 1077 (PAT)

Prem Kumar Sinha v. State Of Bihar

2006-11-16

BARIN GHOSH

body2006
Judgment 1. Although a case for issuance of a writ in the nature of mandamus has been made out and although the actions on the part of the State and its Officers are reprehensible and should be deplored, l would not issue a writ of mandamus, as has been prayed for, in the present Writ Petitions. 2. By Section 157 of the Bihar Panchayat Raj Act, 1993, amongst others, the Bihar Panchayat Raj Act, 1947 was repealed. The 1993 Act, by Section 151 thereof, imposed obligation upon the State Government to make rules relating to the method of recruitment and terms & conditions of service including the pay and allowances, provident fund and gratuity of the employees of the Panchayat. Section 32 of the 1993. Act provides that there shall be a Secretary in every Gram Panchayat, who shall be appointed by the State Government. Section 32A of the 1993 Act provides that for general watch and ward and for meeting emergent events, i.e. fire, breaking of an embankment or bridge outbreak of epidemic and to encounter burglary or dacoity etc. and also to perform such duties imposed by the Government from time to time and for maintenance of public peace and order, a Gram Raksha Dal shall be organised under a Dalpati, appointed in the prescribed manner, for every Gram Panchayat and all able-bodied persons of a village between the age of 18 and 30 years shall be members of the said 3. Under the 1947 Act, certain rules were made for appointment pf Dalpatis After the 1947 Act was repealed by the 1993 Act, no new rules were framed. Inasmuch as the 1993 Act repealed the 1947 Act and re-enacted the matters dealt with in the 1947 Act, by the 1993 Act it was urged, taking advantage of Section 27 of the General Clauses Act, that inasmuch as no new rules have been framed under the 1993 Act, the old rules framed under the 1947 Act will apply and Dalpatis may be appointed in the manner as had been provided under the 1947 Act. This Court rejected the said contention and the same reached finality. 4. This Court rejected the said contention and the same reached finality. 4. Despite it having been pointed out by this Court that the matters pertaining to appointment of Dalpati, as provided in the 1993 Act, is quite different, it was not noticed that a new employee to be appointed for the Panchayat had been conceived in the 1993 Act, as the 1947 Act authorised appointment of a Sevak, i.e. an Assistant, the 1993 Act envisaged appointment of a Secretary. 5. For appointment of a Secretary, no rules had been framed under the 1947 Act inasmuch as there was no concept of appointing a Secretary under the 1947 Act, Despite that and despite the 1993 Act, after repealing the 1947 Act, did not create any post of Sevak, the State and its Officers created posts of Sevaks and went on appointing Sevaks. In the matter of appointing Sevaks, the State and its Officers went on applying the rules framed under the 1947 Act for appointment of Sevaks from amongst Dalpatis. 6. In 1986, the Government through its Finance Department issued a circular and thereby provided that if any post remains vacant for a period in excess of six months, before filling up the post, the appointing authority must obtain clearance of the Finance Department of the Government. It has come on records that despite such direction of the Government, which has not been withdrawn but has been reiterated later on, the Government and its Officers went on filling up the posts of Sevak which purportedly remained vacant for more than six months after coming into force of the 1993 Act. 7. It appears that certain posts of Sevak were created sometimes in 1998- 1999. Those posts were purported to have been filled up by the Panchayat Establish- ment-cum-Selection Committee sometimes in 2001. By issuing appointment letters on 4th July, 2001 and 9th October, 2001, some of those posts were filled up and accordingly the petitioners, who were previously working as Dalpatis, were appointed as Panchayat Sevaks. Subsequently by the impugned order dated 29th January, 2001, the said appointments were cancelled in view of the directions contained in the letter of the Government issued through the Department of Panchayat Raj on 2nd January, 2002. Subsequently by the impugned order dated 29th January, 2001, the said appointments were cancelled in view of the directions contained in the letter of the Government issued through the Department of Panchayat Raj on 2nd January, 2002. In the letter dated 2nd January, 2002, the State through the Department of Panchayat Raj reiterated the stand of the State taken through its Finance Department in 1986 that before filling up a post lying vacant for six months, the appointing authority must obtain appropriate sanction of the Finance Department. The letter dated 2nd January, 2002 did not direct that if an appointment has been made to fill up any post lying vacant for over six months without obtaining prior permission of the Finance Department, such appointment shall be cancelled. It is the contention of the State that the decision of the Government taken in 1986 was applicable only in relation to the Government employees and that was for the first time applied to the employees of the Panchayat Raj. If that be so, on the strength of the letter dated 2nd January, 2002 the appointments accorded on 4th July, 2001 and 9th October, 2001 could not be cancelled. 8. It must be kept in mind that the direction of the legislature contained in Section 32 of the Act is that the Secretary of the Panchayat shall be appointed by the State Government. When the appointment is by the State Government, the appointee is an employee of the State Government. 9. The facts dealt with above depicts a clear picture that the Officers of the State Government have failed to discharge their obligations as mandated by the legislature. While acting contrary to the directions contained in a legislative mandate, the Officers of the State have acted in a most partial manner, for while they were not entitled to appoint Sevaks, they appointed Sevaks. While in the matter of appointment of Sevaks, understood to be employees of the Panchayat, the Officers of the State understood that the 1986 decision is not applicable to them. On the basis of pick and choose method, they saved employment of those Sevaks appointed from Dalpatis whom they liked, and surprisingly cancelled the appointments of the writ petitioners by applying the 1986 decision of the Government, which, according to them, became effective after the writ petitioners were appointed. On the basis of pick and choose method, they saved employment of those Sevaks appointed from Dalpatis whom they liked, and surprisingly cancelled the appointments of the writ petitioners by applying the 1986 decision of the Government, which, according to them, became effective after the writ petitioners were appointed. l think it is a very good case where the concerned Officers of the State, who acted in the manner as above, having acted ultra vires to their powers conferred by the Act and, that too, in a deliberate partial manner, they not only exposed themselves for compensation but also prosecution. It is hoped and expected that the State Government will, in order to enure public confidence in it take appropriate action against those Officers, but if not taken, the conclusion would be that the policies of the State are dictated by those corrupt Officers. 10. I am, however, unable to use my discretion in favour of the petitioners for the petitioners have been discriminated amongst other appointees, who could not be appointed. 11. The writ petitions accordingly stands disposed of.