IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16672 of 2009 DAIZY RAI Versus THE STATE OF BIHAR & ORS ----------- 03 24.02.2010 Heard learned counsel for the petitioner, learned counsel for the State of Bihar and learned counsel for the State Election Commission. The State Election Commission functions under the aegis of the Election Commission of India. However, it comprises of officials of the State Government itself sent on deputation. The present is a glaring example of how the Government and its officials generate unwanted litigations through inter departmental wrangling and burden the Courts with what is purely an administrative misadventure. Two separate counter affidavits have been filed. One by the State of Bihar the other by the officials of the State of Bihar working in the State Election Commission on deputation. The matter relates to engagement of the petitioner on a Class-III post of Bill Clerk in the State Election Commission on 2.1.1995 and the subsequent termination on 5.11.2009. The counter affidavit of the State Election Commission states that the State was not providing 2 sufficient number of staff for smooth and effective functioning of the Commission for various purposes, in course of elections to ensure the holding of the elections in accordance with law. Despite repeated requests to the State Government adequate personnel and posts were not being made available. The Commission was compelled to make temporary appointments of the present nature. The State Election Commission in C.W.J.C. No. 3569 of 2000 preferred earlier by the petitioner acknowledges at paragraph-18 of its counter affidavit that the State Government itself has been making funds available to the State Election Commission with regard to such appointments made by the Commission for the smooth holding of elections till 20.5.2005. Summing up its stand the State Election Commission States at paragraphs- 31, 32 and 38 page- 118:- “31. That, it is respectfully stated and submitted that from chain of events stated in the writ petition as well as in the present counter affidavit, it is clear that the Commission has been acting and taking steps due to exigency arising out of urgent election matters and has not exceeded its powers in appointing temporarily such employees but after appointment made has been intimating the State Government for taking appropriate action but due to no communication of action taken by the State Government, the said employees including the petitioner has continued and as soon as termination of petitioner 3 was communicated, the Commission has issued consequential order in its all fairness and thus, the authorities of the Commission from beginning, who made such appointment under such compelling circumstance cannot be said to have acted against the interest of the Commission and exceeding their powers. 32. That, apart from the above facts, it is very relevant to point out that the Commission has not been provided adequate staffs from its inception. As the Commission is a permanent constitutional body like that of the Election Commission of India, the State Government ought to have made available sufficient numbers of staffs to strengthen it for the purpose of its free and fair functioning and the State Election Commission ought to have been made free from State control, which was possible only when financial and administrative powers could have been delegated to the Commission but unfortunately in spite of repeated requests the State Government has not taken any step so far to delegate financial and administrative powers to the Commission only with a view to keep everything under control under its own hands. The State Government has deliberately failed to provide sufficient number of staffs to its sanctioned strength. So the Commission from very beginning had/has no option but to make certain temporary appointments, some of them are retrenched employees of other departments, only with a view to facilitate its smooth function. 38. That, it may be mentioned here that a chart prepared in January 2010 by the Commission regarding the employees strength clearly shows that earlier 51 posts were sanction out of which only 37 employees are working including those 9, who have been temporarily appointed by the Commission. In November, 2007, the 4 State Government realized the pressure of work of the Commission and accordingly, sanctioned further 12 posts to be filed up on need based contract basis on a fixed monthly remuneration but unfortunately the State Government has not delegated administrative power to make such appointment on contract basis nor the State Government has sent such employees even though they have realized the work pressure in the State Election Commission.” The counter affidavit of the State is of a very generalized nature and wisely prefers not to deal with the individual paragraphs of the counter affidavit of the State Election Commission. The positive stand of the State in its counter affidavit is that the appointments made by the Commission are illegal. If the appointments made by the Commission are illegal, the funds sanctioned by the State Government are also illegal. Those, who made the appointments are equally answerable as also those who sanctioned the funds. This necessarily mandates appropriate directions for civil and criminal proceedings against the concerned. The Supreme Court in AIR 1986 SC 210 (B. Prabhakar Rao V. State of A.P.) has deprecated such contradictory stand on behalf of State officials in their counter affidavits before Courts observing that: 5 “It is amazing that the same Deputy Secretary to the Government, representing the same Government, should have sworn to two such contradictory affidavits reveals a total sense of irresponsibility and an utter disregard for veracity. It shows that the deponent had signed the affidavits without even reading them or that he signed them to suit the defence to the particular writ petition without any regard for truth. In either case, it is reprehensible and totally unworthy of the spokesman of a Government and most unflattering to the Government on whose behalf he spoke. We would have contemplated severe action against the deponent, had we not the feeling that the responsibility for his statements lies with undisclosed higher echelons and we need not make a scapegoat of him. In fact, in a case like this involving the entire body of Government servants in Andhra Pradesh, we would have expected the Chief Secretary or a Principal Secretary to file the Counter. But they have a chosen to keep themselves back.” The order dated 14.8.2008 in C.W.J.C. No. 3569 of 2000 adequately notices that the State Government by letter no. 4738 dated 24.7.2008 and letter no. Esst. 10- 24/06-2178 dated 8.8.2008 has taken a conscious policy decision for absorption with regard to persons like the petitioner in its own wisdom and, therefore, the State now cannot blow hot and cold by seeking to place reliance of any earlier Supreme Court order on 6.2.2007 in Civil Appeal No. 3517 of 2006. It cannot rely upon an earlier Supreme Court order in a litigation filed by 6 another when it has taken an individual decision for persons like the present petitioner conscious of the earlier order of the Supreme Court. The vacillating stand taken on behalf of the State unmindful of its own conduct generates this litigation. It is not the case of the State that the decision of 24.7.2008 and 8.8.2008 has been annulled. What should have been resolved as a purely administrative matter in the portals of the Secretariat of the State Government has been thrust as a burden of an unnecessary litigation on the Court. The Court refuses to take the administrators burden. The Supreme Court in AIR 2003 (SC) 1805 (CHIEF CONSERVATOR OF FORESTS. GOVT. OF A.P. VERSUS COLLECTOR AND OTHERS),2004 (3) PLJR 269 (SC) (MAHANAGAR TELEPHONE NIGAM LTD. VERSUS CHAIRMAN, CENTRAL BOARD, DIRECT TAXES & ANOTHER), 2004 (6) SCC 431 (MAHANAGAR TELEPHONE NIGAM LIMITED VERUS CHAIRMAN, CENTRAL BOARD, DIRECT TAXES AND ANOTHER) and 2007 (7) SCC 39 (OIL & NATURAL GAS CORPORATION LIMITED VERSUS CITY & INDUSTRIAL DEVELOPMENT CORPORATION, MAHARASHTRA LIMITED AND 7 OTHERS) has clearly held that the Court’s already over burdened should not be thrust with administrative litigation of the present nature of an inter departmental wrangling, where apparently no legal issues appear to be involved. The writ application is, therefore, referred to the Chief Secretary of the State of Bihar for resolution of the stand off between two sets of officials of the State Government itself. The Chief Secretary is requested to be suitably advised of the Supreme Court orders referred hereinabove and then pass final and appropriate reasoned and speaking order to facilitate judicial review, should the need arise, within a maximum period of two months from the date of receipt and/or production of a copy of this order before him. The writ application stands disposed. P.K. (Navin Sinha, J.)