MOHD SIRAJUDDIN Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioners in each of these cases are aggrieved by their repatriation from the Rural Development Department, to be precise, from the post of Block Development Officer to the Agriculture Department, which is their parent department vide notification No. 9839 dated 27.11.2000 of the Rural Development Department. The grievance and the controversy being the same the cases have been heard together and are disposed of by this common order.

(2.) The facts of the case may be mentioned from the record of C.W.J.C. No. 13661/2000 which has been argued as the representative case. The case of the petitioners is that scale of the post of Agriculture Inspector/Agriculture Graduates was revised from Rs. 850 -1,360 to Rs. 1,000 -1,820 upon upgradation of the 1423 posts of Bihar Subordinate Agriculture Service and merger in the Bihar Agriculture Service Class II. They were allowed the replacement scale of Rs. 2,200 -4,000 pursuant to the recommendation of the 5th Pay Revision Committee. The same scale was allowed to the Deputy Collectors in the Bihar Administrative Service. The scale was later reduced to Rs. 2,000 -3,800. The Bihar Agriculture Graduates Service Association filed C.W.J.C. No. 767/91 challenging the decision of the State Government, which was dismissed. The Supreme Court on appeal set aside the order of the State Government in Civil Appeal No. 4602/92 on 12.5.1993 which, according to the petitioners, amounted to restoration of the scale of Rs. 2,200 -4,000. The Supreme Court, however, had given liberty to the Government to issue show -cause notice to the employees concerned and then take fresh decision. On 16.9.1993, the Government issued an order allowing the scale of Rs. 2,200 -4,000 but the same was recalled on 6.12.1993. The Association again moved this Court in C.W.J.C. No. 12050/93 in which on 16.12.1993 an interim order was passed directing that the petitioners shall meanwhile be paid the salary which were being paid to them before issuance of the impugned order until further orders. The writ petition was eventually dismissed by a learned Single Judge on 10.1.1997. In LPA No. 166/97 however while admitting the appeal against the said order, the Division Bench passed similar interim order. By virtue of the said interim orders the petitioners have been getting their pay in the then existing scale of Rs. 2,200 -4,000 (now Rs. 6,500 -10,500) till date. The same scale being admissible to the Deputy Collectors, the petitioners must be held to be equivalent in rank and status to the Deputy Collectors and therefore, the order of repatriation on the ground that they are not eligible for the appointment as Executive Officer under Section 58(1) of the Bihar Panchayat Raj Act, 1993 (in short 'Panchayat Act') is not legal. It is also said that occasion for appointment of Executive Officer under the Panchayat Act would arise after the panchayat elections are held and Panchayat Samitis are constituted, since even the elections have not been held so far, the ground that the petitioners are not qualified for appointment as Executive Officer does hot exist. Alternatively, it is said that the process for holding elections under the Panchayat Act has already commenced and the repatriation of the petitioners at this stage is likely to jeopardize the election process. As a matter of fact, it is submitted, the very shifting in the garb of repatriation is for extraneous purposes -to bring pliable and convenient officers of choice on the post of Returning Officer to help the powers -that -be in the ensuing elections. Another ground on which the petitioners seek interference with the impugned order is that having been appointed as Charge Officer under Section 4(2) of the Census Act, 1940 read with Rule 3 of the Census Rules, 1990 vide notification No. 244 dated 20.4.2000 of the Revenue and Land Reforms Department, they cannot be transferred at a stage when the census operation has actually commenced in the form of enumeration of the population, in view of the circular of the Director -cum -Principal Chief Census Officer (Census Operations) Bihar vide his letter No. 11015/2/2000 -545 (CTU) dated 18.12.2000.

(3.) Two counter -affidavits have been filed -one on behalf of the Rural Development Department and the other on behalf of the Agriculture Department. The substance of the affidavit filed on behalf of the Rural Development Department is that under Section 58(1) of the Panchayat Act an officer not below the rank of Deputy Collector alone can be appointed as Executive Officer of the Panchayat Samiti, and since the Block Development Officer (BDO) has been notified as the Officer to function as Executive Officer of the Panchayat Samiti, in order to avoid any legal complication, such of the BDOs who are holding the post on deputation from the Agriculture Department and are not in the pay scale of Rs. 6,500 -10,500, which is the scale of Deputy Collectors, have been repatriated to the parent department. The petitioners who are Agriculture Inspectors/Graduates in the Scale of Rs. 5,000 -8,000 have thus rightly been repatriated to their parent department/post.