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2014 DIGILAW 27 (PAT)

Md. Qaisar Alam v. State of Bihar

2014-01-08

NAVIN SINHA

body2014
ORDER Heard Counsel for the Petitioners and State. 2. The petitioners assail order dated 21.1.2012 by Respondent No. 2 i.e. Principal Secretary, Panchayati Raj Department, passed in pursuance of the directions in CWJC No. 7072 of 2000 (Hari Lal Yadav Vs. State of Bihar) and CWJC No. 7216 of 2002 (Md. Qaiser Alam & ors. Vs. State of Bihar). The roster for appointment of Dalpati as Panchayat Sewaks was revised affecting the petitioners prejudicially. 3. Learned Counsel for the petitioners submitted that they were working as Dalpatis for more than two years. The minimum qualification for the post of Panchayat Sewak was matriculation, duly possessed by them. Appointment of Panchayat Sewak was to be made from trained Dalpatis. They qualified in the selection process and successfully passed the training examination also. There existed 227 sanctioned posts of Panchayat Sewak in the District of Katihar in 1999. A total of 157 Dalpatis were working and the remaining 69 were vacant. The roster was approved by the Commissioner. 38 persons including the petitioners were selected on 29.6.2000 and sent for training. After completion of training by order dated 23.10.2000, 13 persons were given joining but 25 persons including the petitioners were denied joining and posting. These 13 persons are still continuing in service. 4. One Hari lal Yadav, a Dalpati, not amongst the 38 selected preferred CWJC No. 7072 of 2000 questioning the selection of the petitioners and others. The learned Single Judge after hearing the Counsel for the parties directed for redrawing of the merit list following the principles of reservation and roster as on the relevant date and then take a final decision. The petitioners also approached this Court in CWJC No. 7216 of 2002 aggrieved by non-payment of salary. The Learned Single Judge observed that the claim of the petitioners could be examined in light of the directions in CWJC No. 7072 of 2000 regarding entitlement for salary. The impugned order then followed wrongly holding that the appointment of the petitioners was contrary to reservation roster which is factually incorrect apart from causing hostile discrimination against the 13 persons similarly situated who are still working. 5. Counsel for the State submitted that the Court in CWJC No.7072 of 2000 had held that the reservation roster had not been followed and directed the merit list to be revised. 5. Counsel for the State submitted that the Court in CWJC No.7072 of 2000 had held that the reservation roster had not been followed and directed the merit list to be revised. The petitioners were party respondents in the writ petition and accepted the conclusion of the Court without any challenge to the same. After reorganization of the State of Bihar, only 531 posts of Panchayat Sewaks remained in Bihar. Only 12 posts remained available in the District of Katihar. The post of Panchayat Sewak stood abolished in 1993 and was replaced by the Panchayat Secretary under the Panchayat Raj Act,1993. The State Government took a policy decision to fill up these 531 posts only approved in 2009(4) PLJR 569 (State of Bihar Vs. Subhash Chandra Shukla & ors). observing as follows:– “We therefore, cannot conceal 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 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 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.” 6. It was submitted that several such claims by Dalpaties for appointment on the non existent post of Panchayat Sewak have been dismissed by the Court. The writ petition merits no consideration as admittedly on the own showing of the writ petitioners they have never been appointed and assigned work. 7. The petitioners in their supplementary affidavit have tried to suggest that they have been working but which appears in direct conflict with their pleadings in the writ petition. 8. The petitioners are alleged to have been considered by the Selection Committee on 29.6.2000 and completed training after which they purportedly joined on 23.10.2000. The post of Panchayat Sewak had stood abolished after promulgation of the Panchayat Raj Act,1993. 8. The petitioners are alleged to have been considered by the Selection Committee on 29.6.2000 and completed training after which they purportedly joined on 23.10.2000. The post of Panchayat Sewak had stood abolished after promulgation of the Panchayat Raj Act,1993. Consequent to the reorganization of the State only 531 posts of Panchayat Sewks remained in the State of Bihar of which 12 fell in the share of District Katihar. A policy decision was taken to fill up these 531 posts only on account of Court orders. The petitioners do not come in that category. Their appointment itself came under a cloud by virtue of CWJC No. 7072 of 2000 (Hari Lal Yadav vs. State of Bihar). The order dated 19.5.2009 was passed after hearing them to redraw the merit list in accordance with reservation roster. The petitioners did not challenge the order but accepted it. 9. In LPA No. 1076 of 2007 (State Of Bihar Vs. Ram Narayan Roy) decided on 14.5.2010 it was observed :– 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 (Bihar sic) 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. 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.” 10. In the entirety of the discussion, the issue for appointment of Dalpatis as Panchayat Sewak having been restricted to 531 persons only with orders of the Court in their favour, the petitioners admittedly not being in that category, the post of Panchayat Sewak itself having been abolished in 1993, the petitioners cannot be directed to be considered contrary to earlier judicial orders and on the non-existent post of Panchayat Sewak. The writ application is dismissed.