IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5960 of 2010 1. Kishori Saw S/O Late Shankh Saw R/O Vill & P.O.Jalalpur , P.S.Tekari, Distt-Gaya Versus 1. The State Of Bihar 2. The Principal Secretary/Secretary, Department Of Panchayat Raj Government Of Bihar, Patna 3. The Director , Directorate Of Panchayati Raj Government Of Bihar, Patna 4. The District Panchayat Officer Gaya 5. The Block Development Officer Tikari, Distt-Gaya 6. The Block Panchayat Raj Office/ Panchayat Supervisor Block Tikari, Distt-Gaya 7. The Sarpanch Gram Kachihari Paluhar, P.S. & Block, Tikari, Distt-Gaya 8. Chancal Kumari W/O Jitendra Kumar R/O Vill Chaunipar Jainandan Bigha, P.S.Tikari, Distt-Gaya ----------- 4. 12.09.2011 Heard learned counsel for the petitioner, for the State and for respondent no. 9. The petitioner is aggrieved by the order dated 8.2.2010 removing him from the post of Secretary, Gram Katchahry, Paluhar Panchayat under Tikari Block, District-Gaya. It is submitted that under Rule 5 of the Bihar Gram Katchahry Sachiv (Appointment, Service conditions and Duties) Rules, 2007 (hereinafter referred to as the „Rules‟) Matriculation was the only eligible educational qualification to be considered for appointment. The petitioner who held that qualification was rightly appointed. His removal on 26.11.2007 was wrong to accommodate respondent no. 9 who held the qualification of „Madhyama‟ and 2 was therefore not eligible for appointment under the Rules. Rule 5 has been amended with effect from 31.1.2008 prospectively incorporating Madhyama as an eligible qualification also. The petitioner is therefore entitled to reinstatement and arrears of salary for having wrongly been deprived from working. Counsel for the respondents have urged that this Court had given directions to consider „Madhyama‟ for appointment also based on a 1999 circular of equivalence between „Madhyama‟ and „Matriculation‟. The controversy for appointment on the post of Secretary, Gram Katchahry evoked much litigation when orders came to be passed affirmed in Division Bench that „Madhyama‟ was equivalent to „Matriculation‟ and directions given to consider for appointment. Rule 5 was not brought to the attention of the Court at such stage. Subsequently when the limitation for eligibility under the Rules surfaced, the State respondents amended Rule 5 on 31.1.2008 prospectively. The removal of the petitioner was a consequence of this nebulous situation resulting from Courts orders. The Court therefore finds it 3 difficult to grant him the relief for arrear of salary. It is not in dispute between the parties that the term of the Gram Katchahry for five years has expired. None of the parties are able to inform the Court of the exact date of constitution of the Gram Katchahry to calculate the period of five years. Counsel for respondent no. 9 has relied upon an instruction dated 22.7.2011 of the Principal Secretary, Department of Panchayati Raj, that till the constitution of the new Gram Katchahry he had a right to continue. Rule 8(2) which provides to that effect cannot be read in isolation with Section 92 of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as the „Act‟). Section 92(2) of the Act mandates that the new Gram Katchahry must be constituted within a maximum period of six months from the date of dissolution/expiry of the earlier Gram Katchahry. The Court has no hesitation in holding that respondent no. 9 has a limited right to that extent only. After the expiry of six months from the date of dissolution of the Gram Katchahry, the Gram Katchahry shall automatically stand dissolved when there shall be no Sachiv also. No executive instruction under Rule 8(2) can override Section 4 92(2) of the Act which only permits a working arrangement for the next six months. The Court is therefore not persuaded to interfere by granting that limited relief to the petitioner. The writ Court in the given facts of a case may not exercise its powers merely because it may be proper to do so. Despite the order being illegal, if it is satisfied that no useful purpose is going to be served by interfering the Court can decline to set aside the order as held in (2003) 6 SCC 545 ( Chandra Singh v. State of Rajasthan) at paragraph- 43 as follows:- “43. Issuance of a writ of certiorari is a discretionary remedy. (See Champalal Binani v. CIT.) The High Court and consequently this Court while exercising their extraordinary jurisdiction under Article 226 or 32 of the Constitution of India may not strike down an illegal order although it would be lawful to do so. In a given case, the High Court or this Court may refuse to extend the benefit of a discretionary relief to the applicant.” The Secretary, Panchayati Raj is therefore directed to ensure that if the extended tenure of the Gram Katchahry under Section 92(2) of the Act has expired, the Gram Katchahry is not permitted to continue beyond what the statute permits. As a 5 result the Respondent no. 9 shall automatically loose his office. The responsibility lies with the Secretary, Department of Panchayati Raj to enforce this order. Needles to state that when the new Gram Katchahry is constituted all applicants for the post of Sachiv are required to be considered in accordance with law under the Acts and the Rules. The writ application stands disposed. P. Kumar ( Navin Sinha, J.)