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2021 DIGILAW 337 (PAT)

Pramod Kumar v. State of Bihar

2021-04-15

CHAKRADHARI SHARAN SINGH

body2021
Chakradhari Sharan Singh, J.—The petitioners 13 in number claim that they were appointed as Dalpatis in respective Gram Panchayats before 1993 and they are continuing to hold the said post. They rely on a State Government decision as contained in memo no. 5448 dated 24.06.1989 whereby those Dalpatis who were trained and having matriculation qualification with experience of two either before or after the training could be appointed on the post of Panchayat Sewak. It is their further case that in 2001, the State Government came out with another decision to fill up the post of Panchayat Sewak, which was designated as Panchayat Secretary, by way of deputation. Subsequently, the State Government introduced an amendment in its policy decision of 2001 through memo no. 2157 dated 15.07.2003 to the effect that appointment against the post of Panchayat Sewak shall be made only on the recommendation of Bihar Staff Selection Commission constituted under Bihar Staff Selection Commission Act, 2002 in accordance with Bihar Staff Selection Commission Rules, 2003, Schedule 1 Item Kha (4). The petitioners’ claim that for the purpose of filling up of the post of Panchayat Sewak by those working as Dalpatis, a gradation list was prepared. It has been stated in paragraph 11 of the writ petition that appointment of Dalpati as Panchayat Sewak is by way of promotion and the petitioners are entitled to such promotion. It is their further case that in the light of the State Government policy, as contained in memo no. 2815 dated 11.06.2008, post of Panchayat Secretary was to be filled up from amongst Dalpatis who were in service and based on their respective seniority, they are entitled for their appointment as Panchayat Secretary. Nine out of thirteen petitioners had earlier approached this Court by filing C.W.J.C. No. 346 of 2017, which was disposed of by an order dated 03.03.2017 in following terms:— “Mr. Jitendra Kumar Roy, learned counsel appearing for the petitioners, informs that all these petitioners come within the zone of consideration. He also refers to the Division Bench judgment of this Court in the case of State of Bihar & ors. Jitendra Kumar Roy, learned counsel appearing for the petitioners, informs that all these petitioners come within the zone of consideration. He also refers to the Division Bench judgment of this Court in the case of State of Bihar & ors. vs. Subhash Chandra Shukla & ors., reported in 2009(4) PLJR 569 and a Bench decision of this Court rendered in the case of Paspat Singh vs. the State of Bihar & ors., arising from C.W.J.C.No. 12605/2006, to submit that similar issues having been raised, the respondent District Magistrate was directed to do the needful. However, even while espousing the cause of the petitioners Mr. Roy has failed to satisfy this Court whether any such claim has been raised by the petitioners before the authority concerned, in the light of the judgments relied upon by the learned counsel. In the circumstances discussed, the writ petition is disposed of with the liberty to the petitioners to raise their claim before the District Magistrate, Muzaffarpur or the authority concerned and it goes without saying that any such claim being raised, the authority concerned shall dispose of the claim of the petitioners in accordance with law expeditiously and preferably within three months from the date of receipt/ production of a copy of this order.” 2. In compliance of the said order, the District Magistrate has passed an order dated 24.07.2017 whereby claim of the petitioners for their appointment as Panchayat Secretaries has been rejected, which is under challenge in the present writ application. 3. A counter affidavit has been filed on behalf of the respondents. It is the case of the respondents State of Bihar on the other hand that under Bihar Panchayat Raj Act, 1947 there was a post of Panchayat Sewak which Act was repealed and replaced by the Panchayat Raj Act, 1993 enacted in consonance with the provisions of Article 243B of the Constitution of India The 1993 Act does not contemplate any post of Panchayat Sewak rather it provides for post of Panchayat Secretary for each Gram Panchayat. The 1993 Act was also subsequently repealed and has been replaced by Bihar Panchayat Raj Act, 2006, which provides for post of Panchayat Secretaries under Section 32(1) thereof. The 1993 Act was also subsequently repealed and has been replaced by Bihar Panchayat Raj Act, 2006, which provides for post of Panchayat Secretaries under Section 32(1) thereof. Section 33 of the Act of 2006 provides for Gram Raksha Dal and Dalpati as team leader of Dal, specially created for watch and ward and for meeting emergent eventualities like fire, flood, breach of embankment, collapse of bridge, outbreak of epidemic, to encounter burglary or dacoity etc. It has been emphatically stated that in terms of the said provision under Section 33 of the Act of 2006, only able-bodied persons of a village between the age group of 18 to 30 can be members of Gram Raksha Dal. It has further been stated that the State Government of Bihar has framed Bihar Gram Raksha Dal (Organization, Duties and Behavior) Rules, 2004, Rule 16 whereof provides that no person can remain a member of Gram Raksha Dal, Regional Officer or Dalpati after attaining the age of 30 years. Reference has been made in the counter affidavit to an order passed by Hon’ble the Supreme Court in Rohtas Gram Raksha Dal Sangh & Ors. vs. The State of Bihar & Ors (Civil Appeal Nos. 7992-8028 of 2001) wherein the Supreme Court has held as under:— “Under Section 32A of the 1993 Act, the appointment of Dalpati could be given only to persons in age group of 18 to 30 years and the appellants are not entitled to be appointed to such post as they have crossed the upper age limit.” 4. Reliance has also been placed in the counter affidavit filed on behalf of the State of Bihar on a Division Bench decision of this Court in case of The State of Bihar and Ors. vs. Subhash Chandra Shukla & Ors. reported in 2009 (4) PLJR 569 wherein the Division Bench has held that a Dalpati cannot, as a matter of right, be considered for appointment as Panchayat Secretary. vs. Subhash Chandra Shukla & Ors. reported in 2009 (4) PLJR 569 wherein the Division Bench has held that a Dalpati cannot, as a matter of right, be considered for appointment as Panchayat Secretary. In order to defend the impugned order passed by the District Magistrate, Muzaffarpur, it has been stated that all the 75 posts out of 531 posts of Panchayat Secretary permitted under the Government policy decision have already been filled up way back in 2010, as reported by the District Magistrate, Muzaffarpur through letter dated 10.03.2010 and any future vacancy thereafter is to be filled up by direct recruitment through Bihar Staff Selection Commission in accordance with the Bihar Gram Panchayat (Appointment of Secretary, Rights and Duties) Rules, 2011. 5. I have heard Mr. Arun Kumar, learned counsel appearing on behalf of the petitioner, Mr. Kameshwar Prasad Gupta, learned GP-10 for the State of Bihar and Mr. Satyam Shivam Sundaram for the Bihar Staff Selection Commission. 6. As can be noticed from the Division Bench decision of this Court in case of Subhash Chandra Shukla (supra), the State Government had taken a policy decision that Dalpati would be appointed as Panchayat Sewak in the undivided State of Bihar under the Bihar Panchayat Raj Act, 1947, which was replaced by 1993 Act. The 1993 Act was subsequently repealed by 2006 Act. By an order dated 09.07.1996, the State Government had directed for preparation of seniority list of Dalpatis for appointment as Panchayat Sewaks. By order dated 20.08.1998, the State Government had issued orders for creation of 843 posts of Panchayat Sewak (Secretary). Consequently seniority list of Dalpatis was prepared district wise including the district of Muzaffarpur. 7. The Division Bench in case of Subhash Chandra Shukla (supra) on interpretation of the provisions under 1993 Act and 2006 Act recorded a definite finding that Gram Raksha Dal was an amorphous body of all able-bodied persons of a Panchayat, who is not a holder of civil post, as held in case of Vijay Shanker Pathak vs. The State of Bihar and Ors. reported in 2007 (3) PLJR 621 . The Division Bench noticed with emphasis that the distinction between the nature of duties and functions of Panchayat Secretary and that of a Dalpati. reported in 2007 (3) PLJR 621 . The Division Bench noticed with emphasis that the distinction between the nature of duties and functions of Panchayat Secretary and that of a Dalpati. A Gram Raksha Dal was in the nature of a rudimentary police force whereas the duties and functions of a Panchayat Secretary are vastly much more than a Dalpati, who is indeed the chief executive of Panchayat. The Division Bench accordingly held that a Dalpati by virtue of his position as such cannot be considered for promotion and appointment as Panchayat Secretary, unless so provided in no uncertain terms by the legislature. The Division Bench accordingly held as under:— “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.” 8. It further transpires from the said Division Bench decision that a specific stand was taken on behalf of the State Government that it was promise-bound to appoint 531 Panchayat Secretaries from amongst Dalpatis for the reason that the same was being done in compliance of certain orders of this Court which had attained finality. The Division Bench, however, observed in paragraph 15 as under:— “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.” 9. 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.” 9. Further, the Division Bench in case of Subhash Chandra Shukla (supra) observed in paragraph 16 as under:— “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 of 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 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.” 10. It will be apposite at this stage to notice a specific averment made in paragraph 21 of the counter affidavit, which reads as under:— “That all the 75 posts of Panchayat Secretary available under the statutory 531 posts permitted vide the Government policy decisions under Annexure-5 & 6 well settled vide the Division Bench judgments submitted above have already been filled up way back in 2010 as reported vide letter no. 219 dated 10.03.2010 by the D.M./D.P.R.O., Muzaffarpur. 219 dated 10.03.2010 by the D.M./D.P.R.O., Muzaffarpur. Any future vacancy which existed thereafter or exists now is the vacancy for the post of Panchayat Secretary to be filled up by direct recruitment through the Bihar Staff Selection Committee in accordance with the Bihar Gram Panchayat (Appointment of Secretary, Rights and Duties) Rules, 2011. (Annexure 9 and 10 of the writ application).” 11. The aforesaid categorical statement made in paragraph 21 of the counter affidavit has not been controverted by the petitioner. In view of the fact that all the 531 posts including 75 posts in the district of Muzaffarpur have already been filled up, the petitioners’ claim of their consideration for appointment as Panchayat Secretaries on the basis that they are Dalpatis cannot be sustained. The impugned order passed by the District Magistrate, Muzaffarpur does not require any interference. 12. This writ petition, in the Court’s opinion, has no merit and is accordingly dismissed.