IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.3426 of 2010 1. SUGRIV PRASAD YADAV, SON OF LATE DEVKI PRASAD YADAV, R/O VILLAGE-RAM NAGAR BANKAT, P.S.MAJHOULIA, DISTRICT- WEST CHAMPARAN (BETTIAH). 2. PREM CHANDRA DAS, S/O LATE BIHARI DAS, R/O VILLAGE-KURIYA, P.S. MAJHOULIA, DISTRICT-WEST CHAMPARAN (BETTIAH). 3. DIWAKAR PRASAD YADAV S/O SRI RAM BACHAN YADAV, R/O VILLAGE-GUBRA, P.S. MAJHOULIA, DISTRICT-WEST CHAMPARAN (BETTIAH)………………………….PETITIONERS. Versus 1. THE STATE OF BIHAR, THRU SRI ANUP MUKHERJI, CHIEF SECRETARY, GOVERNMENT OF BIHAR, PATNA. 2. SRI ANUP MUKHERJI, CHIEF SECRETARY, GOVERNMENT OF BIHAR, PATNA. 3. SRI GIRISH SHANKAR, THE PRINCIPAL SECRETARY, PANCHAYATI RAJ DEPARTMENT, GOVERNMENT OF BIHAR. 4. SRI SHASHI SHEKHAR SHARMA, THE SECRETARY, RURAL DEVELOPMENT DEPARTMENT, BIHAR, PATNA. 5. SRI SATYA NARAYAN PRASAD, THE DIRECTOR, PANCHAYATI RAJ DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 6. SRI DEORAJ DEO, DISTRICT MAGISTRATE, WEST CHAMPARAN. 7. SRI GOPAL KRISHNA PARAMHANSH, THE DISTRICT DEVELOPMENT COMMISSIONER- CUM-CHIEF EXECUTIVE OFFICER, ZILA PARISAD, WEST CHAMPARAN. 8. SRI S.M. RAJU, THE DIVISIONAL DEPUTY DIRECTOR, PANCHAYATI RAJ, MUZAFFARPUR DIVISION, MUZAFFARPUR. 9. SRI SUKHDEO PRASAD, DISTRICT PANCHAYATI RAJ OFFICER, WEST CHAMPARAN………..CONTEMNOR/OPPOSITE PARTIES with MJC No.167 of 2008 2 AJAY KUMAR S/O LATE CHHATRADHARI SINGH, R/O VILLAGE-KHANKITTA, POST, PS AND BLOCK- SABAUR, DISTT-BHAGALPUR……….….PETITIONER Versus 1. THE STATE OF BIHAR 2. DR. DEPAK PRASAD, THE SECRETARY-CUM- COMMISSIONER DEPARTMENT OF PANCHAYATI RAJ, GOVERNMENT OF BIHAR, VISHWASHARAIYA BHAWAN, PATNA. 3. SRI LOKESH KUMAR SINGH, THE DIRECTOR, DIRECTORATE OF PANCHAYATI RAJ, GOVERNMENT OF BIHAR, PATNA 4. _________________, THE DISTRICT MAGISTRATE, BHAGALPUR-CUM-CHAIRMAN DISTRICT PANCHYAT SEWAK SELECTION COMMITTEE, BHAGALPUR. 5. ___________________, THE DISTRICT PANCHAYAT OFFICER, BHAGULPUR-CUM- MEMBER SECRETARY, DISTRICT PANCHAYAT SEVAK SELECTION COMMITTEE, BHAGALPUR……CONTEMNOR/OPPOSITE PARTIES. with MJC No.169 of 2008 PRAMOD KUMAR S/O AKHILDEO SINGH R/O VILLAGE-BADPUR, POST OFFICE-MALPUR, UNDER GRAM PANCHAYAT-SHERPUR BADPUR, PS.MARJOI, BLOCK-MOKAMA, DISTT- PATNA………….PETITIONER. Versus 1. THE STATE OF BIHAR 2. _______________, SECRETARY, DEPARTMENT OF RURAL DEVELOPMENT (PANCHAYATI RAJ) GOVERNMENT OF BIHAR, PATNA. 3. __________________, THE DIRECTOR, THE DIRECTOR, DIRECTORATE OF PANCHAYATI RAJ, GOVERNMENT OF BIHAR, PATNA 4. V. RAVINDRAN THE DISTRICT MAGISTRATE, PATNA 5. ________________, THE DEPUTY DEVELOPMENT COMMISSIONER, PATNA. 6. SATY NARAYAN JHA, THE DISTRICT PANCHAYATI RAJ OFFICER, PATNA……CONTEMNOR/OPPOSITE PARTIES.. 3 9/ 19th April 2011 ----------- For petitioners:- Mr. Jitendra Kumar Roy, Advocate For the State :- Mr. D.K. Sinha, Sr. Advocate. AAG-2 Mr. Sudhir Kumar, AC to AAG-2 ------------- We have heard learned counsels appearing for the petitioners in all the three contempt applications as well as learned counsel for the State. 2. The petitioners in all the three contempt applications have raised a grievance that an order passed by a Division Bench of this Court dated 3.1.2006 in a batch of writ petitions is not being obeyed by the opposite parties and hence they be punished for having committed contempt of this Court. 3. The common order of the Division Bench dated 3.1.2006 takes note of rival contentions of the parties. The case of the petitioners was that as Dalpatis they were entitled to be considered for appointment to the post of Panchayat Sevak on fulfilling certain eligibility conditions decided and imposed by the State Government and hence their case must be considered for such appointments. On the other hand, the counter affidavits disclosed the stand of the State that post of Panchayat Sevak under Section-77 of the 4 Act of 1947 was no longer in existence because the Act of 1947 was replaced by the Act of 1993 which provides only for post of Panchayat Secretary. The further case of the State was that Panchayat Sevak is working as Panchayat Secretary at many places and only working arrangement may be possible so that the vacant posts may not cause inconvenience. It was further case of the Government that no person will be appointed on the post of Panchayat Sevak except under order of the Court. However, on account of consensus the writ petitions except one which is related to relaxation of age, were disposed of with a direction to the respondents to consider the case of the petitioners for appointment on the post of Panchayat Sevak, if in future decision is taken by the Government for appointment on the post of Panchayat Sevak. 4. From the show-cause filed on behalf of the opposite parties it transpires that ultimately the opposite parties have rejected the claim of the petitioners on one ground or the other but mainly on the ground that they are not covered under the exceptions made in favour of 531 persons who allegedly were covered by orders of the Court which had attained finality and hence the Government had 5 no option but to consider and appoint them by treating the post of Panchayat Sevak as equivalent to post of Panchayat Secretary for the purpose of those cases only. 5. Learned counsel for the petitioners have taken us through several letters issued by the authorities and vacancy position determined from time to time with a view to show that the stand of the opposite parties in respect of vacancy position is not consistent and acceptable and that there was earlier a set of instructions which required consideration of case of Dalpatis for appointment to the post of Panchayat Sevak and exercise under such instructions were carried out in many districts. 6. We find that there are a lot of grey areas in the reply filed on behalf of opposite parties and from the orders rejecting the claim of the petitioners also, it is apparent that at times, the number 531 has been treated as number of posts instead of number of persons who were allegedly having Court orders in their favour to compel the Government to appoint them on the post of Panchayat Sevak. 7. The varying stand of the opposite parties is reflected in their orders and instructions issued prior to a Division Bench judgment of this Court delivered on 6 11.8.2009 in the case of State of Bihar v. Subhash Chandra Shukla 2009(4) PLJR 569 and orders or instructions issued after the said judgment. In that judgment the Division Bench of this Court came to a categorical conclusion that appointment of Panchayat Secretary from the panel of the Dalpatis in the light of provisions of Bihar Panchayat Raj Act, 2006 was not possible because the nature of duties and functions of Panchayat Secretary are vastly different from that of a Dalpati. But in paragraphs 15 and 16 of that judgment the Division Bench noticed the stand of the State Government that it was promise bound to appoint 531 Panchayat Secretaries from amongst Dalpatis because of necessity to comply with the orders of the Court which had attained finality. After considering such a plea, the Court observed in paragraph-16 that even such Dalpatis, not exceeding 531, could be appointed/promoted to the post of Panchayat Sevak/Secretary in different Panchayats of the State after their names have been approved by the Staff Selection Commission. It was further observed in respect of petitioners of that case that those who had approached the Court earlier and had obtained orders in their favour and were within 531 Dalpatis as per stand of the State, shall be 7 considered and afforded similar treatment. It was further clarified that insofar as appointment/promotion of 531 candidates is concerned, the State shall not keep in mind the distinction, if any, between the Gram Panchayat Sevak/Panchayat Secretary. 8. Although, the orders passed by the concerned opposite parties on the basis of vacancy position and the plea that petitioners are not amongst 531 persons is not fully supported by the materials on record, in exercise of limited contempt jurisdiction we have considered the case of the petitioners and we find that their claim cannot be considered unless they show that as Dalpatis they came to this Court earlier and have acquired a right which binds the State Government to appoint them by way of exception as per aforesaid Division Bench judgment. 9. The only earlier order in favour of the petitioners is the common order dated 3.1.2006 which we have already noticed. That order is clearly an order directing for mere consideration of the case of the petitioners on happening of certain contingency in future. According to the petitioners, since some surplus staff of the Bihar State Marketing Board have been absorbed on the post in question 8 under policy decision of the State Government, it would amount to a decision by the Government for appointment on the post of Panchayat Sevak and hence case of the petitioners had to be considered as per Division Bench judgment dated 3.1.2006. 10. In our view the word “appointment” in the present situation cannot be construed to mean absorption of the surplus or retrenched employees and can only mean decision to initiate a process for regular appointment on the post of Panchayat Sevak. No such process has been initiated. Even then the opposite parties after filing of these contempt applications,have considered the case of the petitioners and as discussed above, they have rejected the claim on one ground or the other. We would have taken a different view and would have directed the opposite parties to reconsider and pass correct orders but having noticed the fact that there are no earlier Court’s orders in favour of the petitioners creating a compulsion on the Government to treat them as exceptions, we find no justification for directing the opposite party to reconsider the case of the petitioners. 11. In the facts of the case, we find that no case for contempt is made out against the opposite parties. All the 9 three contempt applications are, therefore, dismissed. perwez (Shiva Kirti Singh, J.) (Dr. Ravi Ranjan, J.)