CIVIL WRIT JURISDICTION CASE No.10987 OF 1998 ( In the matter of an application under Article 226 of the Constitution of India) BISHUN DEO PRASAD, son of Late Chetu Mahto, resident of Village Mangura, under Gram Panchayat Ghostawa, Police Station and Block Nawadah, District Nawadah Versus 1. THE STATE OF BIHAR 2. The Director, Directorate of Panchayati Raj Government of Bihar, Patna 3. The District Magistrate, Nawadah 4. The Deuty Development Commissioner, Nawadah 5. The District Panchayat Officer, Nawadah 6. The Block Development Officer, Warsaliganj, District Nawadah 7. Shyam Deo Prasad Yadav son of Baleshwar Yadav At present posted as Panchayat Sewak in Warsaliganj Block, District Nawadah with CWJC No.5711 of 2000 RABINDRA PRASAD … …. … … Petitioner Versus THE STATE OF BIHAR & ORS …. … ….Respondents with CWJC No.3927 of 2001 MEGHLAL YADAV ………… ……… Petitioner Versus THE STATE OF BIHAR & ORS …………….Respondents with CWJC No.5636 of 2000 RAM SINHASAN RAI……… ………….Petitioner Versus THE STATE OF BIHAR & ORS………… ……Respondents ******** In CWJC NO.10987 of 1998 For the Petitioner : Mr. Jitendra Kumar Roy, Sushil Kumar Roy & Sumil Kumar For the State : Mr. Gopal Krishna Agrawal, Govt. Pleader No.I Mr. Abinash Kumar, AC to GP I In CWJC Nos. 5711/2000, 3927/2001,5636/2000 For the Petitioners : Mr. Jitendra Kumar Roy For the State : Mr. Braj Kishore Prasad Sinha, Govt. Pleader No.III Mr. Suryakant Kumar, AC to GP III *************** P R E S E N T THE HON'BLE MR. JUSTICE S.UDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL S K Katriar & Kishore K Mandal, J. J. The four writ petitions come up before us by virtue of the order dated 28.2.2001, passed in CWJC No. 5636 of 2000, and 2 CWJC No.5711 of 2001, whereby a learned single Judge has referred the matter to a Division Bench to consider the correctness of the judgment of a learned single Judge of this Court passed on 27.9.95 in CWJC No.7935 of 1994 and the analogus writ petitions bearing CWJC No.4651 of 1995 and 4025 of 1995. The common question which arises for consideration in these four writ petitions is whether or not the petitioners are entitled to their salary as Panchayat Sewaks in the circumstances indicated below. 2. CWJC NO. 5636 of 2000 According to the writ petition, the petitioner claims to have been selected for appointment as a Dalpati. His appointment was approved by respondent no.4 by his order dated 5.7.83 (Annexure 2). He claims to have completed his training as Dalpati and a photocopy of the certificate dated 9.3.88 is marked Annexure 3. The State Government had then issued a circular dated 24.6.89 (Annexure 4), wherein conditions had been stipulated for appointment of Panchayat Sewaks from amongst Dalpatis. One of the important conditions relevant in the present context is that a Dalpati should, before or after his training as Dalpati, must work as a Dalpati for a minimum period of two years. Some relaxation was contemplated for members of the Scheduled Caste and Scheduled Tribes. Appointments were also restricted by the number of vacancies. The petitioner did not receive his appointment letter as Panchayat Sewak leading to CWJC No.10895 of 1997 (Ram Singhasan Rai vs. State of Bihar & Ors.), which was disposed of by order dated 10.8.98 (Annexure 9), whereby the respondent authorities were directed to consider the petitioner’s case if he is found to be otherwise fit to be appointed, and the age bar shall not operate against him. It is further stated in the writ petition that the appointment letter as Panchayat Sewak was issued on 17.11.98 (Annexue 10), whereby the petitioner along with others were directed to join the training as Panchayat Sewak. Clause 2 of this order is reproduced hereinbelow for the facility of quick reference:- ^^ izf”k{k.k vof/k esa mUgsa ;k=k HkRrk ¼LVkfiaM½ fn;k tk,xk A izf”k{k.k iwjk dj izf”k{k.k esa mRrh.kZ gksus ij ,oa vU; okafNr ;ksX;rk ds lR;kiu ds i”pkr~ gh iz[kaM esa inLFkkiu djus ds mijkUr buds osru dk Hkqxrku gksxk A ** 3 This was followed by the order dated 4.6.99 (Annexure 11), whereby the petitioner was posted as Panchayat Sewak of Patepur Block. The petitioner claims to be working as a Panchayat Sewak, but has not been paid his salary for the period 17.11.1998 to 4.6.1999. Hence this writ petition. 3. Learned counsel for the petitioner submits in support of the writ petition that the judgment in the said CWJC No.7935 of 1994 that such persons shall be entitled to their salary from the date of their successful completion of training as Dalpati. However, in the present case, the petitioner claims his salary from the date of his appointment as Panchayat Sewak, namely, 17.11.98 till 4.6.99. 4. Learned Government Pleader submits in opposition that the petitioner is completely overlooking the government circular dated 15.4.2000 (Annexue 9 to CWJC No.5711 of 2000), wherein it is stated that appointment of Dalpatis as Panchayat Sewaks depends upon availability of vacancies. It also depends on successful completion of training as Panchayat Sewak. 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. We should first of all consider the order dated 28.2.2001, passed in the present case as well as CWJC No.5711 of 2000, which is relevant in the other writ petitions also, whereby these matters were referred to a Division Bench to reconsider the judgment in CWJC No.7935 of 1994 and the analogous writ petition. It appears to us that the judgment in CWJC No.7935 of 1994 completely overlooks the most relevant circular, namely, the circular dated 16.2.74 (Annexure-B to the counter affidavit in CWJC No.6536 of 2000), which, inter alia, stipulates that the question of posting as Panchayat Sewak shall arise only after training as Panchayat Sewak is successfully completed. The circular dated 24.6.89 (Annexure 4) clearly stipulates that a Dalpati can be considered for appointment only if he has worked as a Dalpati at least for a period of two years either prior to his training as Dalpati or after its successful completion. The circular also stipulates that it is circumscribed by the limitation of vacancies. The same has to be read with the condition(s) of appointment stipulated in the petitioner’s letter of appointment dated 17.11.98 (Annexure 10), particularly 4 Clause-2 reproduced hereinabove which have to be satisfied before the petitioner can make claim for salary. 6. We must notice another aspect of the matter which was considered by a Division Bench of this Court in LPA No.789 of 2006 (State of Bihar vs.Subhash Chandra Shukla & Ors.), to which one of us (S K Katriar, J.) was a party. A number of writ petitions were filed in this Court at the instance of Dalpatis for direction to the authorities to appoint them as Panchayat Sewaks. The same have been disposed of with the direction to the respondent authorities to consider their cases for appointment as Panchayat Sewaks if they were otherwise qualified for the appointment and the age bar will not operate against them. It was further directed that their names should be approved by the Staff Selection Commission for appointment. In fact, the petitioner’s own writ petition bearing CWJC No.10895 of 1997, disposed of by a similar order dated 10.8.98. The State Government preferred the aforesaid LPA No. 789 of 2006 which has been disposed of by judgment dated 11.8.2009, wherein it has been held that the Dalpatis have no right to be considered for appointment as Panchayat Sewaks because their duties and functions are fundamentally different in the scheme of the Panchayat Raj Act. The State Government had agreed to appoint 531 Panchayat Sewaks from amongst the Dalpatis because of various orders of this Court which had attained finality. This Court clearly stated in the judgment that those appointments may not necessarily have the approval of this Court, and are being made because the State Government has agreed to do so due to the various orders of this Court. 7. It is thus evident that appointment of Panchayat Sewaks from amongst the Dalpatis is clearly circumscribed by limitation of vacancies in a situation where Dalpatis have no right for consideration to be appointed as Panchayat Sewaks, an aspect of the matter clearly overlooked in the judgment in CWJC No. 7935 of 1994. We, therefore, completely disagree with the judgment dated 27th July 1999, passed by the learned single Judge in CWJC No. 7935 of 1994, and the analogous writ petitions. We agree with the reasons assigned by the learned single Judge in his order dated 28.2.2001, passed in the present CWJC No.5636 of 2000. 5 8. Reverting to the facts of the present case, on the own showing of the petitioner, he was provisionally appointed as Panchayat Sewak by order dated 17.11.98 (Annexure 10), and it was decided to forward him for training as Panchayat Sewak. Clause-2 set out hereinabove clearly stipulates that the question of salary shall be considered after completion of training and posting. His posting order was issued on 4.6.99 (Annexure 11). Obviously, therefore, he would be entitled to his salary as Panchayat Sewak after 4.6.99. The claim for salary as Panchayat Sewak till 4.6.99 is clearly inadmissible and hereby rejected. 9. CWJC No. 10987 of 1998 The petitioner claims salary for the period 1.10.87 to 30.9.99. It is evident that the petitioner’s letter of appointment as per Panchayat Sewak was issued on 28.9.99 (Annexue –A). He seems to have joined a few days thereafter. It is thus obvious that the salary for the period prior to the date of his joining is inadmissible. For this reason, and also for the reasons assigned hereinabove, the present writ petition is dismissed. 10. CWJC No. 5711 of 2000 In the present case, the petitioner has claimed salary for the period commencing 28.10.98, till the date not mentioned in the writ petition. It further suffers from the flaw that his letter of appointment/posting is not on record. For this reason, and for the reasons assigned hereinabove, this writ petition is dismissed. 11. CWJC No. 3927 of 2001 The petitioner claims salary for the period 15.6.99 to 4.11.99. The petitioner has not placed on record his letter of appointment/posting as a result of which it is not possible to ascertain as to when was he posted as Panchayat Sewak. For this reason, and for the reasons assigned hereinabove, this writ petition is dismissed. 12. In the result, we do not find any merit in this batch of writ petitions. The 6 writ petitions are accordingly dismissed. ( S K Katriar ) ( Kishore K Mandal ) Patna High Court, Patna The 9th of November 2009 NAFR/mrl