IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11696 of 2009 Rajendra Sahni, Son of Late Harihar Sahni, Resident of Mohalla Katharbanni, Ward No. 10, Under Town Rosera, PS Rosera, District Samastipur. ----- Petitioner. Versus 1. The State of Bihar. 2. State Election Commission, Bihar, Sone Bhavan, R. Block Chauraha, Patna, Bihar. 3. Secretary, Department of Urban Development, Government of Bihar, New Secretariat, Patna. 4. Collector-cum-District Officer, Samastipur, District Samastipur. 5. Rosera Nagar Panchayat through its Chairman/Executive Officer, Under Town Rosera, PS Rosera, District Samastipur (Bihar). 6. Rajendra Sahni, Son of Late Aklu Sahni, Mohalla Kalibedi, Ward No. 12, Under Town Rosera, District Samastipur. ------ Respondents. For the Petitioner :- Mr. Basant Kumar Chaudhary, Sr. Advocate Mr. B.N. Sinha Suman, Advocate For the S.E.C. :- Mr. Sanjeev Nikesh, Advocate For O.P. No. 6 :- Mr. Ajit Kumar, Advocate Mr. Avinash Kumar, Advocate Ms. Renu Jha, Advocate ----------- 6 18.11.2011 The petitioner has challenged Annexure-4, issued by the State Election Commission, Bihar, Patna dated 20.7.2009, passed in Case No. 7 of 2007, by which the petitioner has been removed as a Municipal Councilor from Ward No. 12 of Rosera Nagar Panchayat. The petitioner was appointed as a Nyay Mitra in the Gram Kutchery Chakthat East, P.S. Rosera, District Samastipur by letter dated 13th of November, 2007. His appointment as a Municipal Councilor was challenged by one Rajendra Sahni, Son of Aklu Sahni on the ground that it contravened the provisions of Section 18 (1) (c) and (d) of the Bihar Municipal Act, 2007. The petitioner was a practicing advocate and as such, he sought permission permission for engagement as a Nyay Mitra from the Bihar State Bar Council. The Chairman considered the application and temporarily allowed him to work as a Nyay Mitra subject to the 2 final decision of the Bar Council of India. Rule 49 of the Bar Council of India reads as follows: “49. An advocate shall not be a full time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practice, and shall, on taking up any such employment, intimate the fact to the Bar Council on whose roll his name appears, and shall thereupon cease to practice as an advocate so long as he continues in such employment.” By resolution no. 177 of 2007, the Bihar State Bar Council took a decision that the engagement of a Nyay Mitra is on contract basis to advise the “Sarpanch Nyaypith” and, therefore, it is purely an advisory work and as such, the “Nyay Mitras” are not required to suspend their practice as an advocate. On the basis of the aforesaid facts, learned counsel for the petitioner submits that the petitioner is not in service of the Government as he has purely an advisory role and working as a Nyay Mitra, he has been allowed to practice as an advocate, which would indicate that as far as his appointment as a Nyay Mitra is concerned, does not bar him from practicing as an advocate and, therefore, he has not been treated to be in “service” as a Government employee. Article 243-F of the Constitution of India, inter alia provides for disqualification for being chosen as a member of a Panchayat. Article 243F of the Constitution of India reads as follows: “243-F. Disqualifications for membership.-(1) A person shall be disqualified for being chosen as, and for being, a member of a 3 Panchayat- (a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned: Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty-one years; (b) if he is so disqualified by or under any law made by the Legislature of the State. (2) If any question arises as to whether a member of a Panchayat has become subject to any of the disqualifications mentioned in clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide.” Section 18(1) of the Bihar Municipal Act states as follows: “18. Disqualifications.-(1) Notwithstanding anything contained in this Act, a person shall be disqualified for election or after election for holding the post as member of the Municipality if such person- (a) is not a citizen of India; (b) is so disqualified by or under any law, for the time being in force, for the purpose of elections to the Legislature of the State: Provided that no person shall be disqualified on the 4 ground that he is less than twenty one years of age, if he has attined the age of twenty one years; (c) is in the service of the Central or State Government or any Local Authority; (d) is in the service of any such institution receiving aids from the Central or State Government or any local authority; (e) has been adjudged by a competent court to be of unsound mind; (f) has been dismissed from the service of the Central or State Government or any local authority for misconduct and has been declared to be disqualified for employment in the public service; (g) has been sentenced by a criminal Court, whether within or without India, to imprisonment for an offence, other than a political offence, for a term exceeding six months or has been ordered to furnish security for keeping good behaviour unde section-109 or Section 110 of the Code of Criminal Procedure, 1973 (Act 2, 1974) and such sentence or order not having subsequently been reversed; or absconding being an accused in a criminal case for more than six months. (h) has under any law for the time being in force become ineligible to be a member of any local authority; (i) holds any salaried office or office of profits under the Municipality; (j) has been found guilty of corrupt practices: Provided that on being found guilty of corrupt practices, 5 the disqualification shall cease after 6 (six) years of general election; (k) if he has not paid all taxes due by him to the Municipality at the end of the financial year immediately preceding that in which the election is held. (l) has been willfully omits or refuses to perform his duties and functions or abuses the power vested in him or is found to be guilty of misconduct in the discharge of his duties or become physically or mentally incapacitated for performing his duties (m) if he has more than two living children:- Provided that a person having more than two children on or upto the expiry of one year of the commencement of the Act, shall not be deemed to be disqualified.” (n) Has been absent from three consecutive meetings or sitting of the Municipality without having previously obtained permission form the councilors at a meeting.” The provision for engagement of a Nyay Mitra has been made under the Bihar Panchayat Raj Act, 2006 under Section 94(2) for which rules were formulated in the year 2007 known as Bihar Gram Katchahry Nyaya Mitra (Employment, Service conditions and Duties) Rules, 2007 (hereinafter referred to as „the 2007 Rules‟). Rule 6 provides the procedure for employment. It envisages that “A Nyaya Mitra may be appointed on contract basis to assist each Gram Katchahry or its bench in the district.” The remuneration is provided under Rule 8 (1) which envisages that “Nyaya Mitra will be employed on fixed amount (contract amount) and they will be paid Rs. 2500/- 6 (Two thousand and five hundred only) a month.” Rule 8 (2) envisages that “The contract of the candidates employed to the post of Nyaya Mitra on contract basis will terminate automatically with the completion of the tenure of the Gram Katchahry.” Rule 8(3) envisages that “The appointment will be made on contract basis and it may be cancelled at any time with one month‟s prior notice, if the service is found to be unsatisfactory in the light of reasons mentioned in Rule-11.” Rule 8 (5) envisages that “The selected candidate shall have to execute an agreement in prescribed form before employment.” Rule 10 of the 2007 Rules deals with the functions of a Nyaya Mitra which are as follows: “10. Functions to be performed by Nyaya Mitra:- Nyaya Mitra appointed under section-94(2) of the Act:- (1) Nyaya Mitra shall give information regarding each legal aspect to sarpanch, up-sarpanch and panch in discharge of their legal duties. (2) He shall give legal advice to sarpanch/panch in determining whether the case produced before Gram Katchahry comes within its jurisdiction under sections 106, 110, 111 & 113 of the Act, as the case may be and any suit filed before it is triable or not or whether it is cognizable or not by any Bench of Gram Katchahry. (3) Nyaya Mitra shall give assistance to sarpanch in writing all order sheets dictated/ordered by him on the dates fixed for hearing of suits produced before the bench/full Bench of Gram Katchahry. 7 (4) Nyaya Mitra shall give legal advice to Sarpanch & Panches concerned on legal points during hearing of any suit by the Bench/full Bench. (5) Nyaya Mitra shall render all such assistance and services in constituting Gram Katchahry and its Benches and in exercising their powers and duty timely, reasonably & justifiably in discharging their function & subject to the proviso mentioned in chapter-VI of the Act as required & prescribed by Sarpanch or Bench/full Bench. (6) Other responsibilities assigned to him by the Government from time to time regarding the conduct of business of Gram Katchahry.” Rule 11 of the 2007 Rules deals with the manner in which disciplinary action can be taken against a Nyaya Mitra which reads as follows: 11. Disciplinary action:- Sarpanch or in his absence Up- Sarpanch of Gram Katchahry shall take disciplinary action against Nyaya Mitra, in case he absents himself from Gram Katchahry, does not report his presence on time and show negligence to his duties, indulges in corrupt practices and is found to be in mental disability. Final decision in regard to disciplinary action shall be taken by the committee under para 6(6) of these Rules. In the light of the decisions taken by the aforesaid committee appropriate action shall be taken by the Secretary of Gram Katchahry concerned.” Thus, the question before this Court is whether a person 8 appointed as a Nyaya Mitra would be entitled to be a Municipal Councilor under the Act or whether he would be disqualified from holding the said post. The State Election Commission has come to the conclusion that the petitioner is in service of the State Government as he receives certain remuneration while working as a Nyaya Mitra. Learned counsel for the petitioner has referred to the decision of Janakdhari Prasad Vs. The State Election Commission [2004 (3) PLJR 729]. The facts of the case disclose that while Janakdhari Prasad was an Assistant Government Pleader he contested the election and got elected as the member of the Panchayat Samiti, Nagarnausa. While discussing the provisions of Section 139(1)(c) of the Bihar Panchayat Act which disqualifies persons holding posts of Mukhiya, Member of Gram Panchayat, Sarpanch, Panch of the Gram Katchahry, Member of the Panchayat Samiti and Member of the Zila Parishad for being in service of Central or State Government or any local authorities, this Court came to the conclusion that the Assistant Government Pleader is appointed to assist the Government Pleader and he is paid for the professional work rendered. He is not paid a retainer fee and continues to be an advocate in the role of the State Bar Council of India. By virtue of occupying the post he represents the State Government in Courts of law. The relationship between the State and the Assistant Government Pleader is not of a master and servant. There is no age limit for engagement of person as an Assistant Government Pleader nor is there an age of retirement. The Assistant Government Pleader is not governed by any conduct or 9 disciplinary rule and he would be subject to the same code of conduct as is applicable to other lawyers. In the circumstances, the Court held that an Assistant Government Pleader will not be considered to be in service and would be entitled to stand for elections of the Panchayat Samiti. Counsel for the petitioner submits that the petitioner similarly is not a government employee rather his role is limited as an advisor to the Sarpanch and Nyaypith. It is further submitted that he is not debarred in appearing in Courts of law and as such, he holds the same status as an advocate practicing in the Court. On behalf of the opposite party i.e. the State Election Commission, it has been argued that the case of the petitioner would be covered by the conclusions reached by this Court in the case of Priyaambada Roy Vs. The State of Bihar [2009 (2) BBCJ 172]. The facts relating to the case aforesaid are that the petitioner of the case was selected as a Ward Commissioner in Munger Municipal Council from Ward No. 40. Subsequent to her joining as a Ward Commissioner, she joined as a Panchayat Rozgar Sewika in the District Rural Development Authority, Munger on 31.7.2007. Thereafter she resigned from the post on 2.5.2008 and also refunded the entire honorarium with interest after the resignation which was accepted by the District Rural Development Authority, Munger. The argument in the case was that the petitioner was disqualified as a Ward Commissioner in terms of Section 18(1)(d) of the Bihar Municipal Act, 2007. In this case the Court came to the conclusion that the fact that the petitioner had resigned would not entitled to 10 remove the disqualification as provided under Section 18(1)(d) of the Municipal Act. In the present case the facts disclose that the provisions of the 2007 Rules indicates that the petitioner was selected after following the procedure laid down under the Rule and is receiving Rs. 2500/- as remuneration for his services. He is expected to be present on each day when the Gram Katchahry functions and is also subject to disciplinary action. Therefore, it appears that there is a relationship of employer and employee in the facts of this case and as such, it cannot be said that the petitioner was not holding an office under the State Government. It has been held that in the case of Madhukar G.E. Pankakar Vs. Jaswant Chobbildas Rajani & Ors. [1976 SC 2283] the power to appoint, direct and remove, to regulate and discipline may be a good indicia to decide this issue. The petitioner falls within the category of temporary employee of the Government, as his duties envisage a full time devotion to the job assigned to him, and he is also subject to disciplinary action, if he does not perform his duties. In the present case, all the ingredients are present as mentioned above, and as such, this Court finds no illegality in the order impugned contained in Annexure-4. This writ application is dismissed. Sanjay/A.F.R. (Sheema Ali Khan, J.)