PROSHAN KUMAR ROY Vs. STATE OF BIHAR

JUDGEMENT

(1.) Challenge in the present writ application is to the order contained in memo no. 58 dated 28.3.98 issued by the District Panchayat Raj Officer, Katihar, by which the services of the petitioners have been terminated from the posts of Panchayat Sevak as well as Dalpati in view of letter issued under memo no. 164 dated 9.2.98 by the Commissioner-cum-Secretary, Rural Development Department, Government of Bihar, Patna, which is also impugned. Perusal of the original order of the State Government dated 9.2.98 reveals that relying upon certain decisions of this Court passed in CWJC No. 5600 of 1996 (Ram Chandra Mandal V/s. State of Bihar & Ors.), CWJC No. 325 of 1996 (Raj Kishore Shah V/s. State of Bihar & Ors.), CWJC No. 432 of 1996 (Om Prakash Shah V/s. State of Bihar & Ors.), as well as CWJC No. 10492 of 1994 (Arun Kumar Singh V/s. State of Bihar & Ors.) as well as the fact that upon coming into effect of the Panchayat Raj Act, 1993, with effect from 23.8.93, the Village Volunteer Force Rules, 1949 automatically came to an end and thus any appointment made on the post of Dalpati after 23.8.93 as per the provisions of the old Rules of 1949 were illegal and were directed to be set aside. Reference to the orders of this Court were to the effect that this stand had been approved by the Court. The decision also made clear that letter no. 3188 dated 27.6.94 issued by the Directorate would be treated to be ineffective.

(2.) Learned counsel for the petitioners submits that the petitioners were appointed as Dalpati during the period 27.6.94 to 24.2.97. Thereafter they became Panchayat Sevak on 6.8.97 and 31.12.97. Learned counsel has drawn the attention of this Court to Annexure-3 which is a wireless message dated 12.8.93 from the Director, Panchayati Raj, Bihar, addressed to all District Panchayat Raj Officers, in which it is clearly stipulated that no appointment to the post of Panchayat Sevak and Dalpati should be made. It appears that the Director, Panchayati Raj, Bihar, issued letter no. 3188 dated 27.6.94 in which it was stated that the earlier ban imposed on recruitment of Dalpati and Panchayat Sevak stood vacated from the date of issue of the letter and it was also stipulated in very clear terms that the appointments would be as per the procedure being followed in the past. The letter also vacated/withdrew the ban which had earlier been imposed as per the wireless message dated 12.8.93. Learned counsel submits that in view of the petitioners being appointed as Dalpati during the period when no ban was imposed on such recruitment and in fact a positive direction was given to make appointment as per the previous prevailing Rules such appointment could not be faulted either in law or on facts. Learned counsel also submits that the order dated 9.2.98 cannot be sustained in so far as it relates to giving effect to the new Rules retrospectively, i.e. with effect from 23.8.93 though the same was issued only on 9.2.98. He submits that since during the intervening period rights had accrued, the same could not have been taken away just by stipulating that the new Rules would have retrospective effect and also giving the colour of illegality to any appointment which had taken place during the interregnum. Learned counsel has brought on record the decisions of this Court rendered in the cases referred to above. The decision in the case of Ram Chandra Mandal V/s. State of Bihar dated 17.7.96, thou h by a Division Bench, is not applicable to the issue which is involved in the present writ application. The Court had only taken into consideration the fact that the State Government had communicated to all District Panchayat Raj Officers asking them not to make any appointment to the post of Panchayat Sevak and Dalpati in view of the Bihar Panchayat Raj Act, 1993 . In view of the discussion, the writ petition was not pressed and accordingly disposed off. Thus, in the opinion of this Court, the decision cannot be construed to be a binding precedent or a decision with regard to the issue involved in the present writ application. As far as the decision rendered in the case of Arun Kumar, Raj Kishore and Om Prakash Shah , the same have been rendered by a learned Single Judge of this Court. After going through the same, this Court is of the opinion that the decisions rendered were without noticing the fact that though the Act of 1993 came into force on 23.8.93, and no fresh Rules made under Section 27 of the Act but the same did not take into consideration letter no. 3188 dated 27.6.94 by which there is specific permission to go ahead with the recruitment as per the Rules which were already in existence. In that view of the matter, the said decisions also cannot be considered to be a binding precedent with regard to the issue involved in the present case.

(3.) Learned counsel for the petitioners has relied on the decision of the Hon'ble Apex Court in the case of B.N. Nagarajan V/s. State of Mysore, 1966 AIR(SC) 1942 with regard to the proposition that even in the absence of Rules the State is empowered to go ahead with recruitment, the relevant being at paragraphs 5, 6 and 7.