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2010 DIGILAW 1280 (PAT)

State Of Bihar v. Ram Narayan Roy

2010-05-14

KISHORE K.MANDAL, SUDHIR KUMAR KATRIAR

body2010
JUDGEMENT Kishore K Mandal, J. 1. The respondent State authorities have preferred this appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna, against the judgment and order dated 3.7.2007 passed by a learned single Juge in CWJC No.6611 of 2000 (Ram Narayan Roy vs. State of Bihar and Ors. ). The aforesaid writ application was preferred by the sole respondent herein for quashing the order contained in letter no.1435, dated 13.7.1999, whereby the Divisional Commissioner cleared the roster for appointment to the post of Panchayat Sewak in the district of Buxar. 2. According to the writ petition, the writ petitioner (respondent herein) passed Matriculation in the year 1977, and was thereafter appointed as Dalpati of Chilahari Gram Panchayat on 22.12.89. Such selection made by the selection committee of the Panchayat was approved with effect from 9.11.90. The writ petitioner started working as Dalpati of the said Gram Panchayat and was sent for training as provided under the Rules, which he successfully completed on 30.10.98. It is the writ petitioners case that by virtue of the Government resolution contained in memo no.5448, dated 26.6.89, the trained and Matriculate Dalpatis having two years experience and below the age of 40 years (for unreserved category) were to be appointed on the post of Panchayat Sewak. The authorities in view of the said resolution took step in course whereof vacancies were identified and roster clearance was sought. The Commissioner of the Division in question approved the roster, whereby 02 posts were found meant for unreserved category. Aggrieved by the said approval of the roster, the writ petitioner approached this Court. It may be pointed out here and now that the other such candidate (s) also filed a writ application bearing CWJC No.11618 of 1999 (Radhey Shyam Dubey vs. State of Bihar and Ors.), for similar relief (s) which was allowed by order dated 1.3.2005. Aggrieved by the aforesaid order passed in CWJC No.11618 of 1999, the State authorities preferred LPA No.475 of 2006 (Annexure 1 to the memo of appeal ). Aggrieved by the aforesaid order passed in CWJC No.11618 of 1999, the State authorities preferred LPA No.475 of 2006 (Annexure 1 to the memo of appeal ). Stand was taken in the said appeal that the entire process of selection and appointment to the post of Panchayat Secretary/sewak have undergone a sea-change inasmuch as now the posts of Panchayat Sewak do not exist and as such the authorities may not be bound to appoint the persons who are/were allegedly working as Dalpati (s) on the post of Panchayat Secretary. Having regard to the contention of the parties the said LPA was disposed of on 20.3.07 in the following terms:- The order impugned, in that view of the matter, appears to be innocuous. However, the observation, if any, made by the learned single Judge of this Court shall not prejudice the State authorities in working out the fresh vacancy position, as directed, and the authorities may proceed in the matter in accordance with law and if the posts of Panchayat Sewak do not exist, they may not be bound to fill up the posts. We find from the impugned order that similar stand has been taken by the State authorities (appellants herein) as would appear from paragraph -10 of the impugned order. Learned single Judge allowed the writ petition leading to the present appeal. 3 While assailing the order under appeal, it is contended that the issue is no longer res integra. This Court while considering the claim of Dalpatis for the posts in question in the case of State of Bihar vs. Subhash Chandra Shukla and Ors. [ 2009 (4) PLJR 569 ] held as under:- 13. It is evident on a plain reading of the relevant provisions of the 1993 Act as well as the present 2006 Act, that all able-bodied persons of a village between the age of 18 and 30 years shall be members of the Dal. The same shall be headed by a Dalpati. The organization, utilization and duties and functions of Gram Raksha Dal and the Dalpati shall be provided in the Rules. The same shall be headed by a Dalpati. The organization, utilization and duties and functions of Gram Raksha Dal and the Dalpati shall be provided in the Rules. It is evident on a plain reading of Sec.33 of the two Acts, which are identical, that the Dal is an amorphous body of all able-bodied persons of the Panchayat between the age of 18 and 30 years to take care of general watch and ward and for emergent situations illustratively mentioned therein. It has been held by one of us sitting singly (S K Katriar, J.), in the judgment in the case of Vijay Shankar Pathak vs. State of Bihar [ 2007 (3) PLJR 621 ], that a Dalpati is not the holder of a civil post. The provisions of Sec.32 have to be read in juxtaposition wherein it is provided that there shall be a Panchayat Secretary under Gram Panchayat to be appointed by the State Government. Sec.32 of the 1993 Act provides that the Secretary of every Gram Panchayat shall be appointed by the State Government and he shall perform the duties, and exercise powers conferred upon him, under the Act or any Rules or bye-laws made thereunder. We notice a significant change in Sec.32 of the 2006 Act which provides that there shall be a Panchayat Secretary in Gram Panchayat to be appointed in the manner as may be prescribed. This envisages promulgation of Rules thereunder. The State Government has indeed issued 2003 Rules, which provides the duties and functions of the Panchayat Secretary. Furthermore, the Staff Selection Commission Rules (SSC Rules, in short) provide the appointment of Panchayat Sewaks by the Staff Selection Commission. It is relevant to state that the SSC Rules were issued on 31.5.2003, and yet used the expression panchayat Sewak, though the expression panchayat Sewak does not occur in 1993 Act. We wish to emphasize that the nature of duties and functions of Panchayat Secretary is vastly different from that of a Dalpati. The duties and functions of Gram Raksha Dal, and for that matter, of the Dalpati is confined to general watch and ward and the emergent duties illustratively mentioned therein. A Gram Raksha Dal seems to be in the nature of a rudimentary police force. It does not seem to have been provided with any teeth. The duties and functions of Gram Raksha Dal, and for that matter, of the Dalpati is confined to general watch and ward and the emergent duties illustratively mentioned therein. A Gram Raksha Dal seems to be in the nature of a rudimentary police force. It does not seem to have been provided with any teeth. The duties and functions of the Panchayat Secretary vastly much more than the Dalpati, and the Secretary is indeed the in-charge of the vast responsibilities of the Panchayat. He is indeed the chief executive of the Panchayat. Policing and general administration are two different concepts of governance. We, therefore, cannot conceive of a situation, that a Dalpati by virtue of his position as such can be considered for promotion and appointment as Panchayat Secretary, unless so provided in no uncertain terms by the Legislature. We have not so far heard of a member of the Indian Police Service to be appointed as the Chief Secretary of a State Government. In view of the position of the Gram Raksha Dal and the Dalpati in the enactment (s) under consideration almost no case at all is made out for appointment of Panchayat Secretary from amongst the Dalpatis. We are, therefore, clearly of the view that in view of the legal position obtaining as on date, a Dalpati cannot as a matter of right be considered for appointment as Panchayat Secretary. In that view of the matter, we also reject the contention advanced on behalf of the writ petitioners that it will be open to the State Government to fill up the posts of Panchayat Secretaries from the open market, only if not available from amongst the Dalpatis. 4 It is the appellants case that the writ petitioner does not fall within the category of those persons who had earlier approached this Court claiming such appointment and an order on his writ petition was/were passed directing the authorities to appoint them to the posts in question in terms of the Govt. resolution dated 24.2.89 and the said order became final. It is next submitted that the issue was further clarified by this Court in the case of Siyaram Sharma v State of Bihar [ 2010 (1) PLJR 948 ]. Learned counsel relies on paragraph-4 of the said judgment which reads as follows:- 4. resolution dated 24.2.89 and the said order became final. It is next submitted that the issue was further clarified by this Court in the case of Siyaram Sharma v State of Bihar [ 2010 (1) PLJR 948 ]. Learned counsel relies on paragraph-4 of the said judgment which reads as follows:- 4. We have perused the materials on record and considered the submissions of learned counsel for the parties. The question whether or not a Dalpati can be considered for appointment as Panchayat Sewak/panchayat Secretary is now concluded by the judgment in the case of State of Biahr and Ors. Vs. Subhash Chandra Shukla (supra) wherein it has been held that, in the scheme of the laws governing Panchayat Raj in Bihar, they cannot be considered for such appointment. However, the State Government conceded, as has been noticed in paragraph 16 of the judgment, that 531 Dalpatis shall be appointed as Panchayat Sewak/panchayat Secretary because they have approached this court earlier, orders were passed in their favour which have attained finality. In that view of the matter, the writ petition was disposed of with the direction in paragraphs 15 and 16 of the judgment. The same are reproduced hereinbelow for the facility of quick reference:- 15. We, however, note the submissions of the learned Advocate General that the State Government is promise-bound to appoint 531 Panchayat Secretaries from amongst Dalpatis for the reason that the same is being done in compliance of the orders of the Court which have attained finality. The orders of the learned Single Judges in those writ petitions have not been brought to our notice, let alone those being the subject matter of the present appeal. We are in no position to appreciate the circumstances which persuaded the courts to pass orders to the effect that those petitioners, who were working as Dalpatis, shall be considered for appointment/promotion as Panchayat Sewaks. It is a possible situation only to illustrate it in a hypothetical manner, that the State Government may have taken the decision to appoint Panchayat Sewak/panchayat Secretary from amongst Dalpatis to meet the emergent situation on account of the vast number of vacant posts of Panchayat Sewak/secretary in the State of Bihar. 16. In view of the mandate of the Constitution, the Act has to be effectively implemented without any loss of time. A workable system had to be put in place. 16. In view of the mandate of the Constitution, the Act has to be effectively implemented without any loss of time. A workable system had to be put in place. Learned Advocate General has further submitted that the figure of 531 has been arrived because those Dalpatis had approached this Court by way of various writ petition and orders have been passed in their favour. Let it be made clear that such an action may not necessarily have our stamp or approval, but we permit the State Government to so appoint/promote them because the various orders of this court have attained finality. We wish to further clarify that only those Dalpatis, not exceeding 531 persons, would be appointed/promoted to the post of Panchayat Sewak/secretary in different Panchayats of the State whose names have been approved by the Staff Selection Commission. Those of the present writ petitioners who had approached this Court earlier, orders have been passed in their favour, and are within 531 Dalpatis, shall be similarly treated. We further clarify that in so far as appointment/promotion of 531 candidates is concerned, the State Government shall not keep in mind the distinction, if any, between the Gram Panchayat Sewak/panchayat Secretary. The question whether or not the State Government wishes to make a distinction between the two posts will depend on the Rules that it is required to frame. 5. Learned counsel appearing on behalf of the respondent writ petitioner submits that the petitioner may be treated as the one who had earlier approached this Court as there is an order passed in his favour by the learned single Judge. We are afraid such a contention can be upheld in view of the decisions rendered by this Court in the case of State of Bihar V/s. Subhash Chandra Shukla and Ors. [ 2009 (4) PLJR 569 ], and Siyaram Sharma v State of Bihar [ 2010 (1) PLJR 948 ]. Secondly, the present appeal arises out of and is directed against the order passed on the writ proceeding. The contention of the respondent (writ petitioner) that the order passed by the learned single Judge in the connected writ application may be treated to be an order passed in his favour putting him in the class of those persons for whom special provisions have been made by the State authorities is thus apparently erroneous. It is, accordingly, rejected. 6. The contention of the respondent (writ petitioner) that the order passed by the learned single Judge in the connected writ application may be treated to be an order passed in his favour putting him in the class of those persons for whom special provisions have been made by the State authorities is thus apparently erroneous. It is, accordingly, rejected. 6. We are of the considered opinion that the present case is covered by the judgments rendered by this Court on which reliance has been placed by learned counsel for the appellants. Be it further noted that for similar relief some other candidates had approached this Court which was finally disposed of in the manner noted hereinabove.7. In the result, the appeal is allowed. The order under appeal is set aside. No costs.