CIVIL WRIT JURISDICTION CASE No.7304 OF 2000 WITH CIVIL WRIT JURISDICTION CASE No.16418 OF 2004 ***** In the matter of applications under Article 226 of the Constitution of India. ***** In C.W.J.C. No.7304 of 2000: 1. Sachchidanand Singh, son of Sri Kedar Singh, resident of Village- Shahpur under Gram Panchayat- Shahpur Gorigama, Post Office- Laxmipur Narayan, Police Station and Block- Mahnar, District- Vaishali at Hajipur. 2. Birchandra Prasad Singh Patel, son of Sri Baledo Singh, resident of Village- Jahangirpur Paterha, under Gram Panchayat- Saidpur Paterha, Post Office and Police Station- Sarai, Block- Bhagwanpur, District- Vaishali at Hajipur. .... Petitioners. Versus 1. The State of Bihar. 2. The Commissioner-cum- Secretary, Department of Rural Development, Government of Bihar, Patna. 3. The Director, Directorate of Panchayati Raj, Government of Bihar, Patna. 4. The Commissioner, Tirhut Division, Muzaffarpur. 5. The District Magistrate, Vaishali at Hajipur. 6. The District Development Commissioner, Vaishali at Hajipur. 7. The District Panchayat Raj Officer, Vaishali at Hajipur. .... Respondents. ***** For the Petitioners: Mr. Jitendra Kumar Roy, Advocate. For the Respondents: Mr. S.K. Ghosh, A.A.G.2. ***** In CWJC No.16418 oF 2004: Kishor Pandey, son of Shivnandan Pandey, resident of Village- Lambogara, P.O. Gangi under Gram Panchayat Bhabhan Deo, Police Station Barachatti, Block- Dovi, District- Gaya. ..... Petitioner. Versus 1. The State of Bihar. 2 2. The Secretary Cum Department of Rural Development (Panchayati Raj), Government of Bihar, Patna. 3. The Director, Directorate of Panchayati Raj, Government of Bihar, Patna. 4. The Commissioner, Magadh Division, Gaya. 5. The District Magistrate, Gaya Cum Chairman District Panchayat Sewak Selection Committee, Gaya. 6. The Deputy Development Commissioner, Gaya Cum Vice-Chairman, District Panchayat Sewak Selection Committee, Gaya. 7. The District Panchayat Officer, Gaya- Cum Member Secretary, District Panchayat Sewak Selection Committee, Gaya. .... Respondents. For the Petitioner: Mr. Jitendra Kumar Roy, Advocate. For The Respondents: Mr. Braj Kishore Pd. Sinha, Government Pleader No.3. ***** P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL ***** S K Katriar, J. The two writ petitions seek a common direction to the State of Bihar to consider the cases of the petitioners for appointment as Panchayat Sewak/Panchayat Secretary on the ground that they are trained Dalpatis, and claim to have functioned as Dalpatis. 2. Learned counsel for the petitioners has brought to our notice certain circulars of the State Government in an effort to establish that a large number of posts of Panchayat Sewak/Panchayat Secretary are lying vacant, which have been created 3 for appointment from amongst Dalpatis. He has also taken us through the scheme of the Panchayat Raj Act of 1947, of 1993, and the current Act of 2006. He has also relied on an order dated 19.1.2005 (Annexure 10), passed in C.W.J.C. No.7652 of 2002 (Amod Kumar Singh and others vs. State of Bihar and others), which was allowed by a learned Single Judge, wherein it was directed that Dalpatis should be considered for appointment as Panchayat Secretary. In his submission, the same has been upheld by a Division Bench of this Court and by the Supreme Court. 3. The learned Government Counsel have submitted that the issues are concluded by a Division Bench of this Court in State of Bihar and others Vs. Subhash Chandra Shukla and others, reported in 2009 (4) P.L.J.R. 569. They also rely on the judgment in State of Bihar Vs. Upendra Narayan Singh and others, reported in 2009(4) P.L.J.R. 72 (SC), page 84 and 95 (para 34). 4. We have perused the materials on record and considered the submissions of learned counsel for the parties. Learned counsel for the respondents are right in their submission that this issue is entirely covered by the judgment of a Division Bench of this Court in State of Bihar Vs. Subhash Chandra Shukla (supra), to which one of us 4 (S K Katriar, J.) was a party. It has, inter alia, been held that, in view of the law as obtaining on the date of the judgment and in the scheme of the Act, Dalpatis Qua Dalpatis have no right to be considered for appointment as Panhayat Sewak/Panchayat Secretary. It has further been held that the State Government agreed to fill up 531 posts of Panhayat Sewak/Panchayat Secretary from amongst those of the Dalpatis who had approached this Court and orders were passed in their favour, were otherwise eligible for appointment, and were subject to the approval of the Staff Selection Commission. The issues were so decided in the light of the submissions made by the learned Government Counsel noted in paragraph 3.1 of the aforesaid judgment. Paragraphs 3.1, 13, 15, and 16 of the judgment are reproduced hereinbelow for the facility of quick reference: “3.1. He also submitted that, in view of the statutory provisions, any order or communication of the State Government detracting from the statutory position, may be ignored. He next submitted that the provisions of Section 32 and Section 33 of the 2006 Act state the duties and functions of the Panchayat Secretary and Dalpatis, respectively, and the latter cannot be appointed as Panchayat Secretaries. He next submits that the decision of the State Government to appoint 531 Panchayat Secretaries from amongst the Dalpatis was taken because of the various orders of the courts which have attained finality. He relies on the judgment of a Division Bench of 5 this Court in Rohtas Zila Gram Raksha Dal vs. State of Bihar (AIR 2002 Ptna 1), and upheld by the Supreme Court in the aforesaid judgment dt.18.7.2006.“ ... ... ... ... ... ... ... ... “13. It is evident on a plain reading of the relevant provisions of the 1993 Act as well as the present 2006 Act, that all able-bodied persons of a village between the age of 18 and 30 years shall be members of the Dal. The same shall be headed by a Dalpati. The organization, utilization, and duties and functions of Gram Raksha Dal and the Dalpati shall be provided in the Rules. It is evident on a plain reading of Section 33 of the two Acts, which are identical, that the Dal is an amorphous body of all able-bodied persons of the Panchayat between the age of 18 and 30 years to take care of general watch and ward and for emergent situations illustratively mentioned therein. It has been held by one of us sitting singly (S.K. Katriar, J.), in the judgment in the case of Vijay Shankar Pathak vs. State of Bihar [2007(3) PLJR 621], that a Dalpati is not the holder of a civil post. The provisions of Section 32 have to be read in juxtaposition wherein it is provided that there shall be a Panchayat Secretary under Gram Panchayat to be appointed by the State Government. Section 32 of the 1993 Act provides that the Secretary of every Gram Panchayat shall be appointed by the State Government and he shall perform the duties, and exercise powers conferred upon him, under the Act or any Rules or bye-laws made thereunder. We notice a significant change in Section 32 of the 2006 Act which provides that there shall be a Panchayat Secretary in Gram Panchayat to be appointed in the manner as may be prescribed. This envisages promulgation of Rules thereunder. The State Government has indeed issued 2003 Rules, which provides the duties and functions of the Panchayat Secretary. Furthermore, the Staff Selection Commission Rules (SSC Rules, in short) 6 provide for appointment of the Panchayat Sewaks by the Staff Selection Commission. It is relevant to state that the SSC Rules were issued on 31.5.2003, and yet used the expression „Panchayat Sewak‟, though the expression „Panchayat Sewak‟ does not occur in 1993 Act. We wish to emphasize that the nature of duties and functions of Panchayat Secretary is vastly different from that of a Dalpati. The duties and functions of Gram Raksha Dal, and for that matter, of the Dalpati is confined to general watch and ward and the emergent duties illustratively mentioned therein. A Gram Raksha Dal seems to be in the nature of a rudimentary police force. It does not seem to have been provided with any teeth. The duties and functions of the Panchayat Secretary are vastly much more than the Dalpati, and the Secretary is indeed the in-charge of the vast responsibilities of the Panchayat. He is indeed the chief executive of the Panchayat. Policing and general administration are two different concepts of governance. We, therefore, cannot conceive of a situation, that a Dalpati by virtue of his position as such can be considered for promotion and appointment as Panchayat Secretary, unless so provided in no uncertain terms by the Legislature. We have not so far heard of a member of the Indian Police Service to be appointed as the Chief Secretary of a State Government. In view of the position of the Gram Raksha Dal and the Dalpati in the enactment(s) under consideration almost no case at all is made out for appointment of Panhayat Secretary from amongst the Dalpatis. We are, therefore, clearly of the view that in view of the legal position obtaining as on date, a Dalpati cannot as a matter of right be considered for appointment as Panchayat Secretary. In that view of the matter, we also reject the contention advanced on behalf of the writ petitioners that it will be open to the State Government to fill up the posts of Panhayat Secretaries from the open market, only 7 if not available from amongst the Dalpatis.” ... ... ... ... ... ... ... ... “15. We, however, note the submission of the learned Advocate General that the State Government is promise-bound to appoint 531 Panchayat Secretaries from amongst Dalpatis for the reason that the same is being done in compliance of the orders of the Court which have attained finality. The orders of the learned Single Judges in those writ petitions have not been brought to our notice, let alone those being the subject matter of the present appeal. We are in no position to appreciate the circumstances which persuaded the courts to pass orders to the effect that those petitioners, who were working as Dalpatis, shall be considered for appointment/promotion as Panchayat Sewaks. It is a possible situation, only to illustrate it in a hypothetical manner, that the State Government may have taken the decision to appoint Panchayat Sewak/Panchayat Secretary from amongst Dalpatis to meet the emergent situation on account of the vast number of vacant posts of Panchayat Sewak/Secretary in the State of Bihar.” “16. In view of the mandate of the Constitution, the Act has to be effectively implemented without any loss of time. A workable system had to be put in place. Learned Advocate General has further submitted that the figure of 531 has been arrived because those Dalpatis had approached this court by way of various writ petitions and orders have been passed in their favour. Let it be made clear that such an action may not necessarily have our stamp of approval, but we permit the State Government to so appoint/promote them because the various orders of this court have attained finality. We wish to further clarify that only those Dalpatis, not exceeding 531 persons, would be appointed/promoted to the post of Panchayat Sewak/Secretary 8 in different Panchayats of the State whose names have been approved by the Staff Selection Commission. Those of the present writ petitioners who had approached this court earlier, orders have been passed in their favour, and are within 531 Dalpatis, shall be similarly treated. We further clarify that in so far as appointment/promotion of 531 candidates is concerned, the State Government shall not keep in mind the distinction, if any, between Gram Panchayat Sewak/Panchayat Secretary. The question whether or not the State Government wishes to make a distinction between the two posts will depend on the Rules that it is required to frame.” (Emphasis added) 5. It is thus evident that any order or administrative instructions or communication of the State Government detracting from the statutory provisions may be ignored. In that view of the matter, the reliance placed by the learned counsel for the petitioners on various circulars of the State Government, being in derogation of the statutory provisions, have to be ignored. 6. The aforesaid judgment of a learned Single Judge of this Court in C.W.J.C. No.7652 of 2002 is really covered by paragraph 15 of the judgment in State of Bihar Vs. Subhash Chandra Shukla (supra), and set out hereinabove. None of the petitioners of the present writ petitions have placed before us any order of this Court whereby it was directed that the petitioners be considered for such appointment. As is evident from paragraph 16 9 of the judgment, the list of 531 persons has already been made because of orders of this Court in favour of those persons. After the legal position has been made clear in the judgment in State of Bihar Vs. Subhash Chandra Shukla (supra), there is no question of order in favour of a Dalpati to consider him for the post of Panchayat Sewak/Secretary. 7. We must express our deep regret for the needless arguments advanced on behalf of the petitioners in these cases even though the legal position became clear at the very commencement of the submissions that these cases are squarely covered by the aforesaid judgment in State of Bihar Vs. Subhash Chandra Shukla (supra), trying our patience and wasting this Court‟s time. The arguments on behalf of the petitioners went on and on which would try the patience of a saint. Learned counsel purposely refused to realise that C.W.J.C. No.6977 of 2000, being part of the present batch of writ petitions, has been dismissed with costs on 12.11.2009, only one day earlier to the arguments in the present cases, on the aforesaid grounds, and the petitioners in the three writ petitions are represented by the same counsel. Furthermore, C.W.J.C. No.13651 of 2005, C.W.J.C. No.3264 of 2006 and C.W.J.C. No.3372 of 2006 also part of the 10 present batch of writ petitions, represented by different counsel, were withdrawn on 13.11.2009, in view of the judgment in the State of Bihar Vs. Subhash Chandra Shukla (Supra), and dismissal of the said CWJC No.6977 of 2000. 8. In the result, we do not find any merit in these two writ petitions and are accordingly dismissed with costs quantified at Rs.5000/- to be deposited with the High Court Legal Services Committee, Patna, within a period of four weeks from today. (S K Katriar, J.) Kishore K. Mandal, J. I agree. (Kishore K. Mandal, J.) Patna High Court, Patna. Dated the 7th day of December, 2009. S.K.Pathak/(N.A.F.R.).