IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9952 of 2010 JAGAT RAJ DEVI, W/O TRIBHUWAN SINGH, R/O VILLAGE BAHUARA, P.S. DEO, DISTRICT- AURANGABAD …..PETITIONER. VERSUS 1. THE STATE OF BIHAR. 2. THE SECRETARY, PANCHAYAT RAJ DEPARTMENT, BIHAR,PATNA. 3. THE DISTRICT MAGISTRATE, AURANGABAD. 4. THE DEPUTY DEVELOPMENT COMMISSIONER-CUM-CHIEF EXECUTIVE OFFICER, DISTRICT BOARD,AURANGABAD. 5. THE SUB DIVISIONAL OFFICER, AURANGABAD. 6. THE BLOCK DEVELOPMENT OFFICER, DEO, DISTRICT - AURANGABAD. ……RESPONDENTS. For the petitioner : M/s K.P. Singh, Sr. Advocate with Bhaskar Shankar and Rakesh Singh, Advocates. For the respondents : M/s S.A. Alam, SC IV and Mithilesh Kr. Singh, Advocate. ----------- 05/ 01.10.2010 This writ petition has been filed by the petitioner challenging order dated 27.05.2010 (Annexure-4) issued under the signature of the Secretary, Panchayat Raj Department, Government of Bihar (respondent no.2) by which the petitioner was removed from the post of Mukhiya, Basdiha Gram Panchayat within the district of Aurangabad under the powers conferred under section 18 (5) of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as ‘the Act’ for the sake of brevity). The petitioner has also challenged order dated 11.06.2010 (Annexure-5) by which the District Magistrate, Aurangabad (respondent no.3) had seized the financial power of the petitioner. 2. It is stated on behalf of the petitioner that she is a lady and has been elected for the post of Mukhiya of Basdiha Gram Panchayat (Aurangabad) in the elections held in the year 2006 and - 2 - since then she has been working on the said post in accordance with law to the satisfaction of all concerned. 3. It is also stated on behalf of the petitioner that two ladies, namely Kanchan Kumari and Shobha Kumari were appointed on 07.05.2007 and 05.07.2007 respectively on the post of Panchayat Teacher by the Panchayat Chayan Samiti. An objection was raised that both the said teachers did not had the required age of eighteen years on the cut off date i.e. 01.01.2006 as their respective dates of birth were 05.02.1988 and 12.05.1988. Learned counsel for the petitioner submitted that inadvertently the said calculations were not made as per the cut off date, rather the calculations were made considering the date of their appointments on which dates they had completed the required age. However, as soon as the Panchayat Chayan Samiti learnt about the said mistake in calculation, it removed both the aforesaid teachers within about three months time i.e. on 20.08.2007. 4. Learned counsel for the petitioner averred that the petitioner is an illiterate lady and there is only a single aberration on her part and that too due to genuine miscalculation by the Panchayat Chayan Samiti, which included the petitioner, and it corrected the mistake within a few months, hence there is no question of any corruption, rather it is merely a minor irregularity for which even no criminal case had been lodged. In the said circumstances learned counsel for the petitioner submits that there was no occasion for the authority concerned to pass the impugned order. 5. On the other hand, learned counsel for the respondents - 3 - (State of Bihar and its authorities) vehemently contested the claim of the petitioner and submitted that due to aforesaid illegality committed by the petitioner a report was sought from the Sub- Divisional Officer, Aurangabad (respondent no.5), who submitted his report against the petitioner on 12.02.2008 (Anneuxre-1 to the counter affidavit), whereafter show-cause notice dated 02.04.2009 (Annexure-2 to the counter affidavit) was sent to the petitioner by the Deputy Director of Panchayat Raj Department. It is stated that in response to the said notice the petitioner submitted his show-cause on 04.05.2009 (Annexure-3 to the counter affidavit). It is also averred that the Sub-Divisional Officer, Aurangabad in his enquiry report had stated that petitioner played very important role in the matter and the show-cause of the petitioner was not satisfactory, as she had accepted the allegation that the said two teachers were appointed wrongly. Hence he argues that there is no illegality, irregularity or any procedural defect in the said impugned order or the proceeding in which it was passed and the authority concerned had the jurisdiction to pass the said order after holding full and proper enquiry in the matter. 6. Considering the arguments of learned counsel for the parties as well as the materials on record it is quite apparent that the impugned order was passed under section 18 (5) of the Act and the authority concerned, namely Secretary, Panchayat Raj Department (respondent no.2) as well as the District Magistrate, Aurangabad (respondent no.3) were authorities to take necessary steps under the Act. But the question involved in this case is whether they have - 4 - exercised their jurisdiction in accordance with law not violating the principles laid down in the Government Notification dated 26.08.2008 which provided that Enquiry Officer shall enquire and decide the matter on the basis of evidence and the proceeding in accordance with the Code of Civil Procedure, 1908. 7. It is not in dispute that the allegation mentioned above is the only allegation raised against the petitioner and no criminal case has been filed against her. It is also not in dispute that the selection of Panchayat Teacher is made by the Panchayat Chayan Samiti specifically appointed for the purpose, which included the petitioner also. 8. Both the parties have admitted that the dates of birth of Kanchan Kumari and Shobha Kumari were 05.02.1988 and 12.05.1988 and they were appointed by the Panchayat Chayan Samiti on 07.05.2007 and 05.07.2007 respectively. The minimum age for appointment of such teachers is 18 years as per the relevant rules, hence on the date of appointment the said ladies had definitely completed 18 years of age but the requirement was that the said candidates should have completed 18 years not on the date of their appointment, rather on the cut off date fixed i.e. on 01.01.2006. It is also an admitted fact that the said two teachers were immediately removed on 20.08.2007 by the said Panchayat Chayan Samiti when the objection was raised. No other illegality was found in the said matter except the requirement of age. 9. Out of the said candidates Kanchan Kumari was also born on 05.02.1988 and hence on the cut off date i.e. 01.01.2006 her age - 5 - was 17 years 10 months 27 days i.e. barely one month three days less than 18 years, whereas Shobha Kumari was born on 12.05.1988 and hence on the cut off date i.e. 01.01.2006 her age was 17 years 7 months 20 days i.e. barely four months ten days less than the required age of 18 years. From the enquiry report dated 12.02.2008, it is quite apparent that the Sub-Divisional Officer, Aurangabad had himself committed mistake in calculation holding that Kanchan Kumari and Shobha Kumari were aged 16 years 10 months 16 days and 17 years 7 months 28 days respectively on 01.01.2006 and the dates of their birth have also been wrongly recorded in the said report which would be clear from the impugned order of the Secretary of the Department (respondent no.2) dated 27.05.2010 (Annexure-4). Furthermore, the Secretary of the Department (respondent no.2) has also wrongly calculated the age of the said Kanchan Kumari and Shobha Kumari assuming them to be 16 years 10 months 16 days and 17 years 7months 28 days respectively on 01.01.2006, although clearly stating in paragraph-2 of the impugned order dated 27.05.2010 (Annexure-4) that their dates of birth were 05.02.1988 and 12.05.1988, respectively. 10. In the said circumstances when the highly educated persons like the Secretary of the Department and the Sub-Divisional Officer of Aurangabad can commit such silly mistakes in calculating the age of the said candidates, the lesser mistake committed by the Panchayat Chayan Samiti including the petitioner cannot be held to be intentional as there is no other allegation against the said Panchayat Chayan Samiti including the petitioner, who is admittedly - 6 - an illiterate lady. 11. In addition to the above facts power is conferred upon the State Government under section 18 (5) of the Act for removal of Mukhiya with no provision of appeal and furthermore the said removal casts a serious stigma on personal and public life of the concerned person and results in his/her disqualification to hold such office in future. In the said circumstances, power exercised under section 18 (5) of the Act has serious civil consequences on the status of the person who is holding the post of Mukhiya. Thus keeping in view the nature of the power and the consequences that flows on its exercise, such power should be invoked by the State Government only in a very extreme case with strong reason and should not be exercised for minor irregularities in discharge of duties by the holder of the elected post, namely Mukhiya. It is more so because the Mukhiya occupies the said post by election and she is deprived of the office by an executive order in which the electorate has no chance of participation. In this regard reference may be made to two decisions of the Apex Court in case of Sharda Kailash Mittal versus State of Madhya Pradesh and others, reported in (2010) 2 Supreme Court Cases 319 as well as in case of Tarlochan Dev Sharma versus State of Punjab, reported in (2001) 6 Supreme Court Cases 260. 12. Furthermore, the consequences of the impugned order being very distressful it should not have been passed in such a casual manner without even making proper calculation and if such order passed suffers from casual approach, it is violation of the Rule - 7 - of natural justice. The petitioner cannot be punished for mistake in calculation when the person who is making enquiry and the person who is passing order against the petitioner, is committing a greater mistake in calculation in their respective enquiry report and in the impugned order. Hence the removal of the petitioner from the post of Mukhiya cannot be held to be legal, valid and proper as the mistake committed by the petitioner is a genuine mistake as is apparent from the above mentioned facts. In this regard reference may be made to a decision of a Bench of this court in case of Abhinyata Kumari versus The State of Bihar & others, reported in 2010 (2) P.L.J.R. 119. 13. In view of the aforesaid circumstances, this court is constrained to quash the impugned order of the Secretary, Panchayat Raj Department, Government of Bihar as contained in Memo No.2P/A2-10153/2008/69/P.R. dated 27.05.2010 (Annexure-4). For the same reasons the consequential order dated 11.06.2010 (Annexure-5) passed by the District Magistrate, Aurangabad (respondent no.3) seizing the financial power of the petitioner is also quashed. Accordingly, this writ petition is allowed. Harish (S.N. Hussain, J.)