IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.263 of 2010 GHANSHYAM MANDAL S/O LATE MAHENDRA MANDAL R/O VILL- PATHRA, P.S. BARAHATT, DISTT. BANKA, PRESENTLY PRAMUKH OF BARAHATT BLOCK PANCHAYAT SAMITI, DISTT. BANKA. VERSUS 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY PANCHAYATI RAJ DEPTT., GOVT. OF BIHAR, PATNA 3. THE DIRECTOR PANCHAYATI RAJ DEPTT., GOVT. OF BIHAR, PATNA 4. THE DISTRICT MAGISTRATE null BANKA, DISTT. BANKA 5. THE DISTRICT PANCHAYAT RAJ OFFICER BANKA, DISTT. BANKA 6. THE SUB-DIVISIONAL OFFICER BANKA, DISTT. BANKA 7. THE BLOCK DEVELOPMENT OFFICER, BARAHATT-CUM-EXECUTIVE OFFICER BARAHATT BLOCK PANCHAYAT SAMITI, BANKA, DISTT. BANKA WITH CWJC No.4716 of 2010 RAM NATH RAMAN S/O LATE MOHIT PASWAN R/O VILL.- HIRPUR, P.O,. JANDAHA, P.S. JANDAHA, DISTT.- VAISHALI AT HAJIPUR, PRESENTLY PRAMUKH OF BLOCK PANCHAYAT SAMITI, JANDAHA, P.O. AND P.S. JANDAHA, DISTT.- VAISHALI. VERSUS 1. THE STATE OF BIHAR 2. THE SECRETARY PANCHAYATI RAJ DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3. THE SECRETARY RURAL DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 4. THE SECRETARY PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 5. THE DISTRICT MAGISTRATE VAISHALI AT HAJIPUR, DISTT.- VAISHALI AT HAJIPUR 6. THE BLOCK DEVELOPMENT OFFICER-CUM-EXECUTIVE OFFICER BLOCK PANCHAYAT SAMITI, JANDAHA, DISTT.- VAISHALI AT HAJIPUR ----------- For the Petitioners : Mr. S.B.K. Manglam. Mr. Nalin Kumar. For the State : AC to G.A.-X. ------------ 02 07.04.2010 Learned State counsel has sought time to seek instruction in the matter. Let it be noted that the writ petition has been pending for over three months and a pure question of law is only involved, I, therefore, propose to dispose of the mater without - 2 - delaying the matter any further. It is really unfortunate that though the present Panchayat Raj Act came in force in the year 2006, the Executive are still to reconcile to it. They are still under illusion that all public administration in any way is their prerogative and responsibility. That disillusion I am called upon to dispel. There is a direct conflict between the duly elected Pramukh of Barahatt Block Panchayat Samiti and the Executive Officer. He complains to this Court that notwithstanding the constitutional authority and the statutory power the Pramukh enjoys, a mere Executive Officer is defying the same in all aspects of the matter as if the Pramukh is subordinate to the Executive Officer and it is the Executive Officer who is to run and manage the Block Panchayat Samiti. The situation, indeed is, disturbing. Petitioner as Pramukh has been directing the Executive Officer to call meeting of the Panchayat Samiti. At times, having called the meeting, as directed, he absents himself. The Executive Officer being custodian of record being absent, meetings cannot be held. On many occasions he does not call the meeting. To the contrary, without authority of law, he convenes meeting on his own without information or approval of the Pramukh. As one of the instances petitioner has brought on record that the petitioner had directed the Executive Officer to call a meeting of the Panchayat Samiti to consider various development schemes which were to be taken up so that after approval of the Panchayat Samiti that would be - 3 - forwarded to the Zila Parishad, which would then accord its approval, so that, those development work would take place in the next financial year. In defiance to the direction of the Pramukh, the Executive Officer did not convene the meeting in time. The result was that the proposals were neither discussed nor approved nor forwarded to Banka Zila Parishad, consequence whereof, was that though Banka Zila Parishad passed budgetary approvals for all development work of various Panchayats Samities but Barahatt Block Panchayat Samiti was totally deprived of such sanctions for the whole ensuing year. Thus seen, it is apparent, how an Executive Officer can take the whole Panchayat Samiti for a ride. Does he have the authority is the question? Panchayats were established as a part of amendment to the Constitution. The 73rd constitution amendment inserted Chapter-IX to the Constitution. It created institution of local self- government in the shape of Panchayat. It was a constitutional step forwarded in empowering local people to administer themselves for their own good. It is, pursuant to the said constitutional amendment, the Bihar Panchayat Raj Act, 2006 came to be enacted by legislature of this State. For every Block there is a Panchayat Samiti under the Act. The Panchayat Samiti has elected members and it has other members who are Mukhiyas of various Gram Panchayats under it. The elected members elect the Pramukh and Up-Pramukh. First, let us see the powers, functions and duties of the - 4 - Pramukh, as provided under Section 42 of the Act. The relevant part of Section 42 is quoted hereunder:- “42. Powers, Functions and Duties of the Pramukh.- The Pramukh shall- (a) convene, preside and conduct the meetings of the Panchayat Samiti; (b) exercise supervision and control over the Executive Officer for securing implementation of resolutions or decisions of the Panchayat Samiti or of the Standing Committee, which are not inconsistent with the provisions of this Ordinance or any general or special directions issued under this Ordinance; (c) exercise overall control over the financial and executive administration of the Panchayat Samiti and place before the Panchayat Samiti all questions connected therewith which shall appear to him to require its orders and for this purpose may call for records of Panchayat Samiti; and……………” A reference to Section 42 (a) would show that it is the duty of the Pramukh to convene, preside and conducts the meetings of the Panchayat Samiti. Thus, this being the legislative mandate no one much less the Executive Officer can ignore the same. Then, we come to Section 42(b) which throws much light on the status of the Executive Officer. Executive Officer apparently thinks that being a public servant they are above law, if - 5 - not above the Pramukh. The legislative mandate is otherwise. It is the Pramukh, who exercises supervision and control over the Executive Officer for the purposes mentioned therein. Thus, the Pramukh is an authority over the Executive Officer and not vice- versa. The Executive Officer again is bound to obey the directions of the Pramukh. He has no authority to challenge the authority of the Pramukh nor can he question the authority of Pramukh. He is subordinate to the Pramukh. Then, we come to Section 42(c) wherein again it is provided that it is the Pramukh who would exercise all control over the finance and the executive administration of the Panchayat Samiti. The Executive Officer, though the nomenclature may be executive, he is not to exercise any control except to the extent law authorizes him and the Pramukh or the Panchayat Samiti directs him so. Another provision would show dominance of the Panchayat Samiti and hence the Pramukh is over the Executive Officer. In Section 49(ii) where it is specifically provided that Panchayat Samiti may by notification, delegate to the Executive Officer powers conferred under this Act on the Panchayat Samiti. Thus, the Executive Officer is not the delegator but the delegatee and, as such, subordinate to the Panchayat Samiti of which petitioner is the Pramukh. Then, we come to the Section 50 of the Panchayat Raj Act which talks of Standing Committees. The first such Committee is the General Standing Committee. This is statutory body of which the Pramukh is the ex-officio Chairman and the - 6 - Executive Officer is the ex-officio Secretary, which again shows the hierarchy of authority. Now, I must refer to Section 54 (5) of the Act which again shows that subject to general control the Panchayat Samiti may exercise from time to time, all orders and cheques for payment from Panchayat Samiti fund shall be signed by the Executive Officer. This Section does not authorize the Executive Officer to issue orders. All it does is that orders of the Panchayat Samiti would be signed by the Executive Officer. He is not the order giving authority, the order giving authority is the Panchayat Samiti. He is merely the Executive Officer to execute the orders of the Panchayat Samiti and, as such, not above the Panchayat Samiti but under the Panchayat Samiti. Now, we come to Section 61 of the Act which deals with powers and functions of the Executive Officer. A reference to the various parts of Section 61 would show that he has to act in pursuance to the orders of the Panchayat Samiti, in execution thereof, his control is over the Officers and staff of the Panchayat Samit but, as seen earlier, with reference to Section 42, the Panchayat Samiti has the control and supervision over him, the Executive Officer. He by virtue of Section 61 (1)(e) is the custodian of documents. Another important part of this Section 61 is Section 61(2) of the Act. This again shows the authority of the Executive Officer and the Panchayat Samiti. The Executive Officer is mandated to attend every meeting of the Panchayat Samiti or the Committees thereof and to take part in discussion but - 7 - he shall not have a right to move any resolution or to vote in respect of any resolution or decision. This is very important and this brings out the essence of local self-government concept. He the Executive Officer is nobody even to initiate a resolution or vote, his powers are limited to execute the resolutions of Panchayat Samiti. Further, even where he (Executive Officer) finds that any proposal before the Panchayat Samiti is violative or inconsistent with the provisions of the Act or any other law, he can only bring to the notice of the Panchayat Samiti suo motu. He can only advise the Panchayat Samiti and not command or direct the Panchayat Samiti. The role is just the opposite. It is the Panchayat Samiti which can direct the Executive Officer and not vice-versa. Here I may notice two other provisions of the Act which would show the dominance of the Panchayat Samiti with Pramukh as its head over the Executive Officer. The first is Section 154 of the Act. A reference to that would show that the decisions of the Panchayat Samiti are revisable or reviewable only by the State Government. The Executive Officer has no role to play. So far he is concerned the decisions of the Panchayat Samiti is final. The second is Section 162 of the Act read with Section 163. True it is that the Executive Officer has disciplinary control over employees of the Panchayat Samiti but his actions and orders are subject to approval or appeal before the Panchayat Samiti by virtue of Section 162(3) read with Section 163(1) from where the matter may travel to the District Magistrate. This establishes the - 8 - superiority and dominance of the Panchayat Samiti over the Executive Officer and negates all vice-versa views. Thus seen, in the constitutional and the statutory scheme of things, as noted above, the Executive Officer is virtually a servant of the Panchayat Samiti and not vice-versa. He has no discretion in the matter much less authority to defy the decisions of the Pramukh or the Panchayat Samiti. Even if, as noticed above, they are wrong, he can only advise the Panchayat Samiti but he is bound to execute it. This being the legal position, the grievance of the petitioner is really unfortunate. Meetings are not being called for by the Executive Officer in spite of directions of the petitioner, who is Pramukh. There is absolutely no cooperation by the Executive Officer in the matter much less as enshrined by the statute upon him. In view of the aforesaid legal position, I direct the Executive Officer to conduct himself in accordance with law, as shown above, and if he has any problem in that, he can ask his employer, the State Government to relieve him of his post but so long as he is the designated Executive Officer, his power, function and duty are circumscribed by law, as indicated above and he is bound to conduct himself accordingly. I direct accordingly. I may observe that if, in fact, such is a defiant attitude of a government employee working as an Executive Officer then it would be in fitness of things for the Panchayat Samiti to resolve - 9 - his removal and forward the same to the government for its consideration. The Government must take it to be the will of the people, who are democratically elected and consider the same seriously, otherwise the whole system of democratic local self- government would only remain on paper and the power would not devolve on the people as envisaged by the Constitution and would be retained by the Executive Officer to the detriment of the people which would be anti Constitution. With these observations and directions, the writ petitions stands disposed of. So far as C.W.J.C. No.4716 of 2010 is concerned, the problem and question is the same, except it arises from Block Panchayat Samiti, Jandaha in the district of Vaishali. In view of what is said above, this writ petition is also disposed of with the same observations. Trivedi (Navaniti Prasad Singh, J.)