STATE OF BIHAR Vs. RAM NARAYAN ROY

JUDGEMENT

(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 & 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 & 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). 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 & 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. It is evident on a plain reading of Section 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 Section 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. Section 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 Section 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 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.