Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 359 (PAT)

Pradeep Kumar Singh v. State of Bihar

2012-02-28

BIRENDRA PRASAD VERMA, R.M.DOSHIT

body2012
JUDGMENT : Civil Writ Jurisdiction Case Nos. 7778 of 2011 & 9699 of 2011 have been filed to challenge the constitutional validity of Rule 8(2) of the Bihar Gram Katchahry Nyaya Mitra (Employment, Service Conditions and Duties) Rules, 2007 (hereinafter referred to as the “Nyaya Mitra Rules of 2007”). 2. Civil Writ Jurisdiction Case Nos. 8915 of 2011 & 11799 of 2011 have been filed to challenge the constitutional validity of Rule 8(2) of the Bihar Gram Katchahry Secretary (Employment, Service Conditions and Duties) Rules, 2007 (hereinafter referred to as the “Secretary Rules of 2007”). 3. Chapter VI of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as “the Act”) provides for Establishment, Powers, Duties and Procedure of Gram Katchahry and Benches thereof. Section 90 of the Act provides for constitution of Gram Katchahry in every Gram Panchayat area for the purposes of discharging the judicial functions imposed upon it. The Gram Katchahry consists of a Sarpanch and the Panches elected under the Act. Section 92 of the Act provides, inter alia, that a Gram Katchahry shall continue for five years from the date appointed for the first meeting and no longer. Section 93 of the Act provides for election of Sarpanch and Up-Sarpanch of a Gram Katchahry. Sub-section (1) of Section 94 of the Act provides for appointment of a Secretary in every Gram Katchahry. Sub-section (2) of Section 94 of the Act provides for appointment of a Nyaya Mitra having at least a three-year Law Degree from a recognised Institution or University to assist the Gram Katchahry. 4. In exercise of powers conferred by Section 146 read with Section 94(2) of the Bihar Panchayat Raj Act, 2006, the Government of Bihar has framed the Bihar Gram Katchahry Nyaya Mitra (Employment, Service Conditions and Duties) Rules, 2007. 5. Rule 6 of the Nyaya Mitra Rules of 2007 provides for procedure for employment as Nyaya Mitra. Sub-rule (1) thereof provides for appointment of a Nyaya Mitra to assist a Gram Katchahry on contract basis. Rule 8 of the said Rules provides for other conditions of service of a Nyaya Mitra. Sub-rule (1) thereof provides for a consolidated pay of Rs. 2,500/- per month. Sub-rule (2) thereof makes the appointment of a Nyaya Mitra coterminous with the tenure of the Gram Katchahry. 6. Rule 8 of the said Rules provides for other conditions of service of a Nyaya Mitra. Sub-rule (1) thereof provides for a consolidated pay of Rs. 2,500/- per month. Sub-rule (2) thereof makes the appointment of a Nyaya Mitra coterminous with the tenure of the Gram Katchahry. 6. Similarly, in exercise of powers conferred by Section 146 read with Section 94(1) of the Bihar Panchayat Raj Act, 2006, the Government of Bihar has framed the Bihar Gram Katchahry Secretary (Employment, Service Conditions and Duties) Rules, 2007. 7. Rule 3 of the Secretary Rules of 2007 provides for employment of a Secretary on contract basis. Rule 6 thereof provides for procedure for employment. Sub-rule (1) of Rule 6 provides for employment of a Secretary for a Gram Katchahry on contract basis. Rule 8 of the said Rules provides for other conditions of service. Sub-rule (1) thereof provides for a consolidated pay of Rs. 2,000/- per month. Sub-rule (2) thereof makes the appointment of a Secretary, Gram Katchahry coterminous with the Gram Katchahry. 8. The challenge to the above-referred Rule 8(2) of the Nyaya Mitra Rules of 2007 and Rule 8(2) of the Secretary Rules of 2007 is on a common ground. The challenge is against the consolidated pay and against the tenure being coterminous with the Gram Katchahry. 9. Learned counsel Mr. Vinod Kumar Kanth has appeared for the writ petitioner in CWJC No. 9699 of 2011. He has relied upon the JUDGMENT : of this Court in the matter of Krishna Kumar Mishra & Anr. Vs. State of Bihar & Ors. (AIR 1996 Patna 112). He has submitted that in the said matter the constitutional validity of the Bihar Panchayat Raj Act, 1993 was under challenge. The challenge to the constitution of Gram Katchahry by election was rejected by this Court. The Bench of this Court did uphold the validity of the constitution of the Gram Katchahry. While considering the provisions relating to the constitution of the Gram Katchahry, the Bench of this Court upheld the power of the State Government to constitute a Court of law including a Gram Katchahry. The Bench also upheld the appointment of the Gram Katchahry by election. While considering the provisions relating to the constitution of the Gram Katchahry, the Bench of this Court upheld the power of the State Government to constitute a Court of law including a Gram Katchahry. The Bench also upheld the appointment of the Gram Katchahry by election. However, the Bench observed: “…Though it is open to the State to constitute Gram Kutchery as an alternative forum to that of Civil Court but, in that case, such alternative forum should be equally efficacious and members should be equally qualified like the Judicial Officers of the Civil Court. As no qualification has been laid down under the Panchayat Act, 1993 for appointment / election to the post of members of a Gram Kutchery, the provisions of Section 88 is held to be arbitrary. Accordingly, I hold the said provisions of Section 88 of Panchayat Act, 1993 as unconstitutional.” 10. Mr. Kanth has submitted that it was pursuant to the above JUDGMENT : of the Bench of this Court, to make the Gram Kutchehry constitutional, a provision was required to be made for appointment of Nyaya Mitra, who should be a qualified, legally trained person, to assist the Gram Kutchehry. He has submitted that thus the Nyaya Mitra is the soul of the Gram Kutchehry, but for the appointment of a Nyaya Mitra, the existence of the Gram Kutchehry is impossible. In the entire set up of the Gram Kutchehry, it is the Nyaya Mitra alone who is qualified or trained in legal matters. In absence of a Nyaya Mitra, no Gram Kutchehry can function as such. He has, therefore, submitted that the appointment of a Nyaya Mitra is independent of the Gram Kutchehry. Such appointment cannot be made coterminous with the Gram Kutchehry. He has further submitted that the Nyaya Mitra should be considered to be a Government servant; governed by the conditions of service applicable to the Government servants including the age of superannuation. 11. Mr. Kanth has further submitted that with a view to meeting the above-referred JUDGMENT : of the Bench of this Court in the matter of Krishna Kumar Mishra & Anr., the State of Bihar, in its wisdom, superseded the Bihar Panchayat Raj Act, 1993 by the Act of 2006. The constitutionality of the provisions of the Act of 2006 was also assailed in CWJC No. 1519 of 2006. The challenge to the constitutional validity was, however, rejected. The constitutionality of the provisions of the Act of 2006 was also assailed in CWJC No. 1519 of 2006. The challenge to the constitutional validity was, however, rejected. In the Appeal before the Hon’ble Supreme Court, the State of Bihar filed counter affidavit. To make the Gram Kutchehry viable, having regard to the number of Gram Kutchehries and the number of Sarpanches, Up-Sarpanches and Panches required, it was not possible to employ as many qualified persons; instead a provision was made for appointment of Nyaya Mitra to assist the Gram Kutchehry. Such Nyaya Mitra has to be a person trained / qualified in law. He has further submitted that once there is a well defined procedure for selection and appointment of Nyaya Mitra, the action of the State in curtailing the appointment by making it contractual and coterminous with the Gram Kutchehry is arbitrary and discriminatory. He has submitted that by making the appointment of Nyaya Mitra coterminous with the Gram Kutchehry, no purpose is served. The contractual appointment of Nyaya Mitra or curtailiment of its tenure to the tenure of the Gram Kutchehry has no nexus whatever. The aforesaid provisions are, therefore, arbitrary and discriminatory; violative of Articles 14, 16 and 19(1)(g) of the Constitution. 12. Mr. Kanth has also submitted that a Gram Kutchehry is an institution having perpetual existence under the Constitution. Persons employed in the Gram Kutchehry are the functionaries of the Constitution. They cannot be treated as the civil servants of the State. The State, therefore, has no right or authority to treat the Nyaya Mitras employed in Gram Kutchehries as civil servants to make their appointment contractual and to pay them a consolidated pay. 13. Learned Advocate Mr. S.B.K. Mangalam has appeared for the writ petitioner in CWJC No. 7778 of 2011. He has reiterated the above-referred submissions made by Mr. Kanth. He has further submitted that appointment of Nyaya Mitra cannot be compared with that of Gram Kutchehry. He has submitted that the Gram Kutchehry is an elected body whereas the Nyaya Mitras are selected and appointed as such. Their appointment is made after following an elaborate selection process. It is, therefore, not conducive to the nature of services rendered by the Nyaya Mitras to make their appointment coterminous with the Gram Kutchehry or to make it contractual. He has submitted that the Gram Kutchehry is an elected body whereas the Nyaya Mitras are selected and appointed as such. Their appointment is made after following an elaborate selection process. It is, therefore, not conducive to the nature of services rendered by the Nyaya Mitras to make their appointment coterminous with the Gram Kutchehry or to make it contractual. In support thereof he has relied upon the JUDGMENT : of the Hon’ble Supreme Court in the matters of Dhirendra Chamoli & Anr. Vs. State of U.P. [ (1986) 1 SCC 637 ] and of Bihar State Board of Homeopathic Medicine, Patna Vs. State of Bihar & Ors. [ (1995) 6 SCC 503 ]. [1996 (1) PLJR (SC) 44]. 14. Learned Advocates Mr. Rajendra Prasad Singh and Mr. Raghib Ahsan have appeared for the writ petitioners in CWJC Nos. 8915 of 2011 and 11799 of 2011 respectively. These two writ petitions are filed to challenge the constitutional validity of Rule 8(2) of the Secretary Rules of 2007 on identical grounds. 15. Rule 6 of the Secretary Rules of 2007 provides for procedure for employment. Sub-rule (1) thereof provides for contractual employment of a Secretary for the execution of works and maintenance of documents relating to the office of a Gram Katchahry. Sub-rule (1) of Rule 8 of the Secretary Rules of 2007 provides for a consolidated pay of Rs. 2,000/- per month. Sub-rule (2) thereof makes the appointment of Secretary, Gram Katchahry coterminous with the Gram Kutchehry. 16. Learned counsel Mr. Rajendra Prasad Singh has appeared for the petitioners in CWJC No. 8915 of 2011. He has submitted that the grass root of democracy is election. Nevertheless, the secretariat of the elected body is permanent irrespective of the tenure of the elected body. Even the office of the Gram Panchayat is a permanent establishment. Similarly, although the members of the Gram Kutchehry are elected persons. The establishment of the Gram Kutchehry has to be a permanent establishment. The Secretary of the Gram Kutchehry also is entitled to a permanent appointment. The impugned Rule 8(2) abridges the aforesaid right to permanent appointment. The impugned Rule 8(2) is irrational and unreasonable and requires to be struck off. 17. In support of his submissions, Mr. Singh has relied upon Articles 272, 98, 187 and 243-E (iv) of the Constitution. 18. Learned Additional Advocate General Mr. Lalit Kishore has appeared for the respondents. The impugned Rule 8(2) abridges the aforesaid right to permanent appointment. The impugned Rule 8(2) is irrational and unreasonable and requires to be struck off. 17. In support of his submissions, Mr. Singh has relied upon Articles 272, 98, 187 and 243-E (iv) of the Constitution. 18. Learned Additional Advocate General Mr. Lalit Kishore has appeared for the respondents. He has submitted that the impugned Rules are piece of delegated legislation. The presumption is in favour of the constitutionality of the Rules unless the impugned Rules are demonstrated to be in direct conflict either with the Constitution of India or with the parent Act. Such Rules have to be held to be constitutional. In the present proceedings, it is not even the case of the petitioners that the impugned Rules contravene any of the provisions of the Constitution or the parent Act. In absence of such an allegation, the Rules are required to be held to be constitutional. 19. In support of his submissions, Mr. Lalit Kishore has relied upon the JUDGMENT :s of the Hon’ble Supreme Court in the matters of State of A.P. & Ors. Vs. McDowell & Co. & Ors. [ (1996) 3 SCC 709 ]; of State of Bihar & Ors. Vs. Bihar Distillery Ltd. & Ors. [ (1997) 2 SCC 453 ]; of Government of Andhra Pradesh & Ors. Vs. P. Laxmi Devi (Smt.) [ (2008) 4 SCC 720 ]; and of Hinsa Virodhak Sangh Vs. Mirzapur Moti Kuresh Jamat & Ors. [ (2008) 5 SCC 33 ]. 20. In the matter of Dhirendra Chamoli & Anr. (supra) which arose from the claim for parity of pay made by the casual workers employed on daily wages, the Hon’ble Supreme Court invoked Article 39 of the Constitution to uphold the claim for parity of pay. 21. The JUDGMENT : in the Bihar State Board of Homeopathic Medicine, Patna (supra) has been relied upon to highlight the distinction between the limited terms of the elected members of the Board in juxtaposition of the permanent establishment of the Board. 22. In the matter of McDowell & Co. & Ors. 21. The JUDGMENT : in the Bihar State Board of Homeopathic Medicine, Patna (supra) has been relied upon to highlight the distinction between the limited terms of the elected members of the Board in juxtaposition of the permanent establishment of the Board. 22. In the matter of McDowell & Co. & Ors. (supra), the Hon’ble Supreme Court has held, “A law made by Parliament or the legislature can be struck down by courts on two grounds and two grounds alone, viz., (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provision. There is no third ground. ….. No enactment can be struck down by just saying that it is arbitrary or unreasonable.” 23. Once again in the matter of Bihar Distillery Ltd. & Ors. (supra), the Hon’ble Supreme Court held, “An Act cannot be struck down merely by saying it is arbitrary.” 24. In the matter of P. Laxmi Devi (Smt.) (supra), the Hon’ble Supreme Court has held, “In our opinion, there is one and only one ground for declaring an Act of the legislature (or a provision in the Act) to be invalid, and that is if it clearly violates some provision of the Constitution in so evident a manner as to leave no manner of doubt.” 25. The aforesaid principle has been reiterated by the Hon’ble Supreme Court in the matter of Hinsa Virodhak Sangh (supra). 26. It is not the case of the petitioners that the impugned Rule 8(2) of the Nyaya Mitra Rules of 2007 or Rule 8(2) of the Secretary Rules of 2007 contravenes any of the provisions of the parent Act; the Bihar Panchayat Raj Act, 2006 or the Constitution. The only contention raised is that it is arbitrary or irrational having no nexus to the purpose to be achieved. 27. As held by the Hon’ble Supreme Court, mere allegation of the statute or the Rule being arbitrary is not sufficient to hold the impugned Act or the Rule as unconstitutional. The arbitrariness has to be established. In the present case, although specific enquiry was made and the parties had sufficient time to meet such enquiry, neither the petitioners have nor the State Government has brought on record the exact nature of duties performed by the petitioners as Nyaya Mitras or Gram Katchahry Secretaries. 28. The arbitrariness has to be established. In the present case, although specific enquiry was made and the parties had sufficient time to meet such enquiry, neither the petitioners have nor the State Government has brought on record the exact nature of duties performed by the petitioners as Nyaya Mitras or Gram Katchahry Secretaries. 28. The one thing which is apparent and is indisputable is that neither the Nyaya Mitras nor the Secretaries are treated as full time servant of the State or the panchayat. In other words they are at liberty to pursue their own profession / occupation. The petitioners in CWJC Nos. 7778 of 2011 and 9699 of 2011 are all qualified lawyers enrolled by the Bihar State Bar Council. They are not debarred from practicing in the court of law. It does not need any emphasis to say that in case these Nyaya Mitras were treated as full time servants, they would have to surrender their Sanad and they cannot thereafter practise in a court of law till they are holding the post. 29. We are a welfare State. A welfare State has many obligations towards its people apart from the maintenance of law and ORDER :. These obligations are fulfilled by the State through the manpower it employs. The employees of the State are, therefore, the limbs of the State who perform the functions of the State. By experience of over 60 years, we have learnt that the State has to perform and perform well. The employment in the State service should, therefore, be relatable to performance. Even the State is answerable to its people for better performance. In the 21st Century the State cannot afford to follow the archaic principle of “Once in Government service, always in Government service.” It is high time that we understand that nobody can have a job security unless he or she performs well. The employment, therefore, has to be relatable to the performance. The employment on contract for a specified period is one of the ways devised to ensure performance and to get rid of the employees who do not perform well, without much formalities. 30 If the State of Bihar has adopted the policy of employing Nyaya Mitras and Secretaries to assist the Gram Katchahreis on contract coterminous with the term of the Members of the Gram Katchahry, such a policy cannot be said to be arbitrary or discriminatory. 30 If the State of Bihar has adopted the policy of employing Nyaya Mitras and Secretaries to assist the Gram Katchahreis on contract coterminous with the term of the Members of the Gram Katchahry, such a policy cannot be said to be arbitrary or discriminatory. The legality of tenure appointment of the Nyaya Mitras or the Secretaries of the Gram Katchahries cannot be tested on the touchstone of parity of conditions of service. 31. We see no illegality or arbitrariness in the impugned Rules which provide for tenure employment for Nyaya Mitras or Secretaries of the Gram Katchahries. As to the remuneration, as recorded hereinabove, the Nyaya Mitras or the Secretaries of the Gram Katchahries are not debarred from practising law or from taking any other employment. The demand for regular pay scale and permanent employment made by the petitioners is, therefore, unreasonable. True, the remuneration, even if it is in the form of consolidated pay, should be reasonable and commensurate to the services rendered. Since we do not have details before us with regard to the nature of duties required to be performed or the number of hours required to be put in by the Nyaya Mitras or the Secretaries, we are unable to say whether or not the consolidated pay of Rs. 2500/- or Rs. 2000/- is reasonable or adequate. It is for the State Government to study the nature and quantity of services rendered by the petitioners and such others, and to determine the remuneration on the basis of such data. In case the petitioners or other similarly situated persons make representation to the State Government for upward revision of the remuneration or the consolidated pay, such representation shall be considered and decided by the State Government keeping in view the aforesaid aspects of the services rendered by the petitioners and such others. 32. We do agree with Mr. Kanth that the petitioners are not the civil servants of the State. But at the same time, we do not agree that the petitioners are the functionaries appointed under the Constitution. 33. For the aforesaid reasons, the challenge to Rule 8(2) of the Bihar Gram Katchahry Nyaya Mitra (Employment, Service Conditions and Duties) Rules, 2007 and Rule 8(2) of the Bihar Gram Katchahry Secretary (Employment, Service Conditions and Duties) Rules, 2007 fails. 34. The petitions are dismissed. 35. The parties will bear their own costs.