IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9645 of 2011 ====================================================== Sanjay Kumar Mishra, son of Shri Bageshwari Mishra, resident of village Banni, Post Office Nagra, Police Station Khaira, District Saran at Chapra. Presently, the Mukhiya of Gram Panchayat Raj Kadipur, Block-Nagra, District Saran at Chapra .... .... Petitioner/s Versus 1. The State Of Bihar 2. The Principal Secretary, Panchayati Raj Department, Government of Bihar, Patna 3. The Liaison Officer, Panchayati Raj Department, Government of Bihar, Patna 4. The District Magistrate, Saran at Chapra 5. The District Programme Officer, Saran at Chapran 6. The District Welfare Officer, Saran at Chapra 7. The Block Development Officer –cum- Child Development Project Officer, Nagra Block, District Saran at Chapra .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. S. B. K. Mangalam, Advocate Mr. shyam Kishore Verma, Advocate For the Respondent/s : Mr. Devendra Kr Sinha, AAG 2 For the intervenor : Mr. Dhirendra Kumar, Advocate ====================================================== CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL ORDER (Per: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN) 4 22-09-2011 This writ application has been filed challenging the order dated 17.05.2011 passed by the Principal Secretary, Panchayati Raj Department, Government of Bihar, Patna by which the Principal Secretary has come to a finding that the petitioner should be removed from the post of the Mukhiya of Gram Panchayat Raj Kadipur, district Saran under Section 18 (5) of the Bihar Panchayat Raj Act, 2006. The facts giving rise to the order impugned are that Patna High Court CWJC No.9645 of 2011 (4) dt.22-09-2011 2 / 10 2 there was an allegation against the petitioner when he was elected as the Mukhiya in the year 2007 that he had misused his powers of Mukhiya in making appointments of Aanganbari Sevikas. Earlier to the amendment of Section 18 (5) of the Act, such matters were to be heard by the Divisional Commissioner, but by the amendment of 2008, the power to decide such issues was transferred to the State Government. As such, the matter was taken up and heard by respondent no. 2, the Principal Secretary, Panchayati Raj Department, Government of Bihar, Patna. It would appear from the impugned order that the Principal Secretary issued a show cause to the petitioner vide letter no. 2198 dated 29.03.2011 asking the petitioner to show cause, as to why he should not be removed from the post of Mukhiya. In response to the show cause, the petitioner filed an application praying for 20-25 days’ time on the ground that in order to file show cause, he would be required to get certain documents from the Office of the District Magistrate, Saran which would explain that the allegations leveled against the petitioner were not justified. The petitioner’s prayer for time was rejected by the Principal Secretary by the impugned order and he proceeded to pass the order against the petitioner. Patna High Court CWJC No.9645 of 2011 (4) dt.22-09-2011 3 / 10 3 The allegations against the petitioner are as follows:- (a) It is alleged that at Aanganbari Centre Nos. 34 and 35, Sangita Devi, wife of Sunil Kumar has been appointed on the post of Aanganbari Sevika without taking into consideration that there are discrepancies in the mark sheets obtained by Sangita Devi in the chart prepared during the proceedings of appointment. (b) It is alleged that the mapping of the centres has not been done in accordance with the guidelines of the State Government. (c) It is alleged that the population of Aanganbari Centre No. 37 is primarily consists of Extremely Backward Category of persons, whereas the person appointed, namely, Babita Devi, wife of Vinod Kumar Prasad belongs to Backward Category. (d) It is alleged that the appointment of Nirmala Devi as Aangabari Sevika at Centre No. 38 is illegal because of the fact that she is the daughter of the village/ Centre, where the appointment was made, which is in contravention of the guidelines of the State Government for appointment of Aanganbari Sevikas. (e) It is alleged that Shabnam Mishra, wife of Saroj Patna High Court CWJC No.9645 of 2011 (4) dt.22-09-2011 4 / 10 4 Kumar Mishra has been wrongly selected for the post of Aanganbari Sevika on the ground that her husband is related to the Mukhiya, whereas her husband is a retired army person; & finally (f) It is alleged that the appoint of Amita Devi, wife of Prakash Kumar Mishra as Aanganbari Sevika at Centre No. 42 is illegal as her father-in-law is the Head Clerk in the Baniyapur Referral Hospital. The petitioner had apparently submitted a show cause on 03.07.2008 which has been discussed in the order impugned. In reply to the allegation no. (a), the petitioner has submitted that it is the mistake on the part of the Clerk who had shown the marks of Sangita Devi as 67.14 % at one place and 67.4 % at the other. At this juncture, this Court may also point out that as far as this allegation is concerned, Annexure-1 dated 18.04.2011 would indicate that after the matter was heard by the District Magistrate, Saran at Chapra, the District Magistrate concluded that the appointment of the candidate was not illegal and she was allowed to continue on the post concerned. With regard to the second allegation, that the mapping of the centres concerned has been wrongly done, this Court has to say that the job of preparing the mapping of the centres is Patna High Court CWJC No.9645 of 2011 (4) dt.22-09-2011 5 / 10 5 solely the responsibility of the Officers of the Social Welfare Department and in particular, the Child Development Project Officer, as such, the allegation that the petitioner was responsible for not preparing the mapping of the centres in accordance with the guidelines laid down by the State Government is completely unjustified. Regarding the allegation no. (c), the petitioner had submitted his reply stating therein that according to the mapping system, the population of the centre was dominated by Extremely Backward Class of Persons and as such, Babita Devi has been correctly appointed as Aanganbari Sevika of Centre No. 37. This aspect of the matter has been supported by the District Magistrate, Saran at Chapra in Case No. 07 of 2011 vide order dated 05.03.2011. Therefore, the allegation no. (c) does not stand against the petitioner. With regard to the allegation no. (d) that Nirmala Devi is the daughter of the village where she was appointed as Aanganbari Sevika, it has been specifically stated that she was living permanently in the said village (centre), which view has also been supported by the District Magistrate, Saran at Chapra in the order dated 18.04.2011 in Case No. 13 of 2011. Regarding the allegation no. (e), similarly, the District Patna High Court CWJC No.9645 of 2011 (4) dt.22-09-2011 6 / 10 6 Magistrate, Saran at Chapra has given a clean-chit to the petitioner vide his order dated 07.05.2011 passed in Case No. 14 of 2011. The sixth and the last allegation against the petitioner is that he has appointed Amita Devi who is the daughter-in-law of Shri Birendra Mishra, who is the Head Clerk in the Referral Hospital, Baniyapur. Regarding this allegation, I may point out that Baniyapur is a different block, although, it cannot be denied that the father-in-law lives in the same village as that of the petitioner. The said appointment was apparently made on the basis of the fact that Amita Devi does not live with her father-in-law. The power of making appointments of certain category of persons is contained in Clause-3 of the guidelines of the year 2006. These guidelines have been struck down by this Court in the case of Sunita Kumari vs. The State of Bihar & Others [CWJC No. 12911 of 2007], disposed of on 06th May, 2010. After this judgment, the subsequent guidelines by the State Government have been amended and Clause-3 has virtually been deleted from the guidelines. Considering all these aspects, this Court does not find that the order of the Principal Secretary, Panchayati Raj Patna High Court CWJC No.9645 of 2011 (4) dt.22-09-2011 7 / 10 7 Department, Government of Bihar, Patna dated 17.05.2011 could be sustained in view of the fact that the allegations against the petitioner do not stand in view of the findings of the District Magistrate, Saran at Chapra in this matter and in view of my findings with respect to the allegation no. (b) and (f). The matter of removal of the Mukhiya is not to be treated lightly. In the democratic system, there must be some serious allegations of misuse of powers before the Mukhiya or any other elected member can be removed from the post he holds. The order of the Principal Secretary, Panchayati Raj Department, Government of Bihar, Patna indicates that he was influenced by the fact that the election of Mukhiya was on its way and was in progress at the time when the order was passed. I would like to refer to certain decisions which would further clarify the circumstances that should be taken into consideration in context of appointment of Aanganbari Sevikas/Sahayikas by the Mukhiya and others as the 2006 guidelines. The guidelines envisage that the selection of an Aanganbari Sevika/Sahayika would be made by a committee, comprising of seven members; one of the members would be the Mukhiya and the others are the Child Development Project Patna High Court CWJC No.9645 of 2011 (4) dt.22-09-2011 8 / 10 8 Officer, Members of the Board of Panchayat, member of the Schedule Caste & Schedule Tribe, the Headmaster of the nearest School and the Panchayat Sevak. Thus, the responsibility of making appointments is a collective decision of the members who are present during the selection of Aanganbari Sevikas/Sahayikas. In this context, I would like to refer to the decision of this Court in the case of Sunita Devi vs. the State of Bihar & Others [2010 (2) PLJR 533]. In this case, the petitioner had filed the writ application challenging the order passed by the State Government in terms of Section 18 (5) of the Act removing Sunita Devi from the post of Mukhiya. One of the question that came up for consideration was whether the Mukhiya alone could be held responsible for selection of Aanganbari Sevikas/Sahayikas. The Court held as follows:- “Thus to hold Mukhiya responsible for any appointment wrongfully made is against the concept of joint responsibility.” In this context, I may also refer to the decision of the Supreme Court in the case of Sharda Kailash Mittal vs. the State of M.P. & others [2010 (2) SCC 319]. The facts in this case are that the President of the Nagar Panchayat in the State of Madhya Pradesh had been removed on the basis of certain allegations. Patna High Court CWJC No.9645 of 2011 (4) dt.22-09-2011 9 / 10 9 While considering the allegations, the Apex Court has set aside the disqualification of the petitioner Sharda Kailash Mittal for the post, holding therein that “the action of removal cast a serious stigma on the personal and public life the officer bearer concerned and may result in his/her disqualification to hold such Office for the next term”. The exercise of power, therefore, has serious civil consequence on the status of the office bearer. The State Government should have, therefore, strong and good reasons for removing the elected persons and should not be exercised where there are minor irregularities in discharge of duties by the holder of the elected post or has exceeded his power in discharge of duties, in any case, the petitioner has been found to have legally exercised his powers. An intervention application has been filed on behalf of Arun Kumar, the man who contested the election of Mukhiya and lost the election. It has been argued on behalf of the intervenor that the petitioner is not entitled to file nomination etc. and is debarred from holding the post as there are serious allegations against him. It is further submitted that final orders with respect to debarring the petitioner are pending before the Election Commission. The date of hearing this matter by the Election Patna High Court CWJC No.9645 of 2011 (4) dt.22-09-2011 10 / 10 10 Commission has been fixed as 22.09.2011 and as such, the Court should wait for the final order of the Election Commission before passing any order in this writ application. Considering the submissions made by the intervenor, the intervention application is allowed. This Court finds no justifiable reason to wait for the orders of the Election Commission. Since, the Court has come to a finding that the allegations levelled against the petitioner are not sustainable as the reasons discussed above are not good enough grounds for removing the petitioner from the post of Mukhiya, the consequential order would naturally have to follow and thus, this Court finds that there is no need to wait for the orders of the Election Commission. In the result, this writ application is allowed and the order dated 17.05.2011 passed by the Principal Secretary, Panchayati Raj Department, Government of Bihar, Patna is set aside. NAFR/ Prabhakar Anand/- (Sheema Ali Khan, J)