Arun Kumar Sharma And Ors vs The State Of Bihar And Ors
2023 Latest Caselaw 3500 Patna

        IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Letters Patent Appeal No.1165 of 2018
                                      In
                Civil Writ Jurisdiction Case No.16392 of 2008
     ======================================================

1. Arun Kumar Sharma, Son of Sri Jagarnath Sharma, Resident of Village and Grma Panchayat- Rampurwa Mahanawa, Police Station and Block- Majhaolia, District- West Champaran at Bettiah.

2. Mahmood Alam, Son of Shekh Maksood Alam, Resident of Village-

Basantpur, Post Office, Block and Police Station- Mainatand, District- West Champaran at Bettiah.

3. Baliram Sah, Son of Sri Puran Sah, Resident of Village- Shanwala Pakari, Post Office and Gram Panchayat- Chutta, Police Station- Manipur, Block- Maintand, District- West Champaran at Bettiah.

4. Laleshwar Prasad, Son of Late Jitu Mahto, resident of Village- Hariapakar, Post Office- Gurwalia, Gram Panchayat- Tunia Bishanpur, P.S. Mainpur, Block- Chanpatti, District- West Champaran at Bettiah.

... ... Appellant/s Versus

1. The State of Bihar through the Principal Secretary, Panchayat Raj Department, Govt. of Bihar, Patna

2. The Commissioner, Tirhut Division, Muzaffarpur.

3. The Secretary to the Commissioner, Tirhut Division, Muzaffarpur.

4. The District Magistrate, West Champaran at Bettiah.

5. The Deputy Development Commissioner, West Champaran at Bettiah.

6. The District Panchayat Officer, West Champaran at Bettiah.

7. Radheshyam Mishra, Son of Sri Rama Shankar Mishra, Resident of Village and Post Office- Kehuria, Police Station- Shikarpur, Block- Narkatiya Ganj, District- West Champaran at Bettiah.

8. Hari Narayan Singh, Son of Sri Singheshwar Singh, resident of Village and Post Office- Bhabhtan Under Gram Panchayat- Bhabhatan Gopalpur, Police Station- Sathi, District- West Champaran at Bettiah.

9. Safedar Ali, Son of Late Julbikar Ali, Resident of Village- Khairatian Baldianwa, Post Office Shivrajpur, under Gram Panchayat- Siswan Bhumihar, Police Station- Nawalpur, Block- Jagdapatti, District- West Champaran at Bettiah.

... ... Respondent/s ====================================================== Patna High Court L.P.A No.1165 of 2018 dt.04-08-2023

Appearance :

For the Appellant/s : Mr.Jitendra Kumar Roy, Advocate Mr. Sumit Kumar, Advocate For the Respondent/s : Mr. P.K. Shahi, Advocate General Mr. Manish Kumar, A.C. to AAG-5 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY CAV JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 04-08-2023

1. The appellants are persons who were appointed as

Dalpatis who seek absorption in the post of Panchayat Sewak,

which post according to the appellants is now called Panchayat

Secretary. The appellants claim that their initial posting as

Dalpatis in the district of West Champaran at Bettiah, in

different Gram Panchayats, were made by the competent

authority, the Executive Committee of the Gram Panchayat,

approved by the District Panchayat Officer, West Champaran.

The appellants were all Matriculates and some having higher

qualifications who were given training in the Central Training

Institute, Brambey at Ranchi. The Government of Bihar by a

communication dated 24.06.1989 (Annexure-2) had directed

filling up the post of Panchayat Sewak from retrenched

employees. It was also prescribed that the minimum

qualification for Panchayat Sewak is Matriculation and it was

also stipulated that trained Dalpatis would be appointed. For Patna High Court L.P.A No.1165 of 2018 dt.04-08-2023

unreserved category of Dalpatis a training of two years was

prescribed which was waived with respect to the reserved

categories. There was also age relaxation of three years granted

to the Scheduled Castes and Scheduled Tribes fixing the

maximum age for unreserved category as 40 years and for the

reserved category as 43 years.

2. A Commission was constituted on 15.07.2003

wherein the appointment to the post of Panchayat Sewaks were

to be made only on the recommendation of the Staff Selection

Commission. The authorities having dragged their feet, the

Dalpatis approached this Court with CWJC No. 7652 of 2002,

which stood allowed. Following the directions issued, the

subsequent writ petition filed as CWJC No. 15200 of 2004 was

also allowed. The earlier judgment was challenged

unsuccessfully by the State in LPA No. 1042 of 2005 and

Special Leave to Appeal (Civil) CC No. 639 of 2007. On filing a

Contempt of Court Petition, the Department of Panchayat Raj

issued Annexure-4 dated 28.03.2008 addressing the District

Magistrates and directing them to carry out the orders of this

Court. Annexure-4 also mentions Annexure-2 dated 24.06.1989.

3. It is stated that 69 posts of Panchayat Secretary

were identified to be vacant up to March, 2008 in the District of Patna High Court L.P.A No.1165 of 2018 dt.04-08-2023

West Champaran. The appellants also challenge the allocation of

posts, to the Scheduled Castes and Backward Classes and their

absorption in excess of the permissible quota under the

reservation policy. The appellants' specific case was with

respect to allocation of an extra 12 posts to the Scheduled

Castes and 8 posts to the Backward Classes.

4. The State places reliance on Annexures A, D and C

by which it was very evident that no extra post of Panchayat

Sewaks were created in the district of West Champaran and

there was already excess persons working. It was also asserted

that there were only 531 posts available in the entire State of

Bihar for the purpose of posting of Dalpatis as has been

declared in Subhash Chandra Shukla & Ors. v. The State of

Bihar & Ors.; 2009 (4) PLJR 569.

5. Before the learned Single Judge the petitioners'

counsel had taken a contention that the case of the petitioners

should not be governed by the decision in Subhash Chandra

Shukla but should be regulated by the decision in Amod Kumar

Singh & Ors. v. State of Bihar & Ors.; 2005 (2) PLJR 1,

wherein no such limitation of absorption of Dalpatis were

provided; but this argument was not pursued before us in appeal.

It was the specific contention of the counsel for the appellants Patna High Court L.P.A No.1165 of 2018 dt.04-08-2023

that if the Government could show that 531 posts were filled up

by Dalpatis identical to the appellants and senior to them; then

necessarily the appellants have no case. However, the State

cannot now turn around and contend that there was no vacancy

in the district of West Champaran.

6. The learned Single Judge considered the various

notifications and communications issued by the State of Bihar

on the subject matter which we find appropriate to notice.

Annexure-2 dated 24.06.1989 indicates the policy decision of

the State Government that Dalpatis would be

appointed/absorbed as Panchayat Sewak in the undivided State

of Bihar. By a subsequent communication dated 09.07.1996

preparation of seniority list of Dalpatis for appointment of

Panchayat Sewaks was directed. 843 posts in the undivided

State of Bihar was identified by a letter dated 20.08.1998 for

absorption of Dalpatis to the post of Panchayat

Sewak/Secretary; which letter is produced as Annexure-C.

There were in total 12181 Panchayats wherein 11308 Panchayat

Sewaks were working and the remaining 843 posts were

available for absorption as Panchayat Sewaks. Excess

Panchayat Sewaks would be transferred and adjusted in other

districts where vacancies are found to be existing. In the district Patna High Court L.P.A No.1165 of 2018 dt.04-08-2023

of West Champaran, as is clear from the chart enclosed with

Annexure-C, 8 excess Panchayat Sewaks found working were to

be adjusted in other districts. Annexure-D communication dated

11.06.2008 showed that as per the directions of the High Court

in Amod Kumar Singh and the various Contempt Applications

843 posts were created by the Cabinet of the State of Bihar,

which stood reduced to 531 within the State of Bihar after

bifurcation of the States of Bihar and Jharkhand. This fact is

very evident from Annexure-A dated 24.02.2009 and Annexure-

B dated 20.01.2009.

7. The learned Single Judge also looked at the various

judgments placed before the Court. Amod Kumar Singh was a

case in which Dalpatis prayed for their absorption as Panchayat

Sewak which claim related to the Gopalganj district. It is based

on the judgment in CWJC No. 11008 of 1996 that the State of

Bihar recommended sanction of 843 posts of Panchayat Sewaks;

which could not be filled up on account of financial stringency

and the consequent ban imposed on appointments to Class-III

and Class-IV posts. The Bihar Gram Panchayat (Appointment,

Powers and Duties of Secretary) Rules, 2003 was brought in

which was made effective retrospectively which removed the

Dalpatis from the zone of consideration for appointment. In Patna High Court L.P.A No.1165 of 2018 dt.04-08-2023

Amod Kumar Singh the decision was only with respect to the

consequence of the withdrawal of the ban and applicability of

the rule retrospectively, with a consequential direction that the

retrospective operation of the rule cannot deprive the absorption

of Dalpatis to the post of Panchayat Sewaks.

8. In Subhash Chandra Shukla the provisions in the

Panchayat Raj Act juxtaposed with the 73rd amendment of the

Constitution was considered and it was held that the duties and

functions of the Panchayat Secretary; the erstwhile Panchayat

Sewaks cannot be equated with the duties of a Dalpati. The

Dalpatis were found to be not holding a civil post and there

could be no claim raised for absorption as Panchayat

Secretaries. It was held that only in the newly created 843 posts

could there be an absorption of Dalpatis that too confined to 531

within the State of Bihar after the separation of Jharkhand.

9. A Gram Raksha Dal was found to be in the nature

of a rudimentary police force, with the Dalpati, in charge. The

duties of the Dalpatis were amorphous and was mostly general

watch and ward. A Panchayat Secretary on the other hand has

much more serious responsibilities being in charge of the vast

responsibilities of a Panchayat. The Court found that there is no

case made out for appointment of Panchayat Secretary from Patna High Court L.P.A No.1165 of 2018 dt.04-08-2023

amongst the Dalpatis. The contention of the petitioners to

restrain the Government from appointing Panchayat Secretaries

without first appointing all the eligible Dalpatis was rejected.

The Court, however, did not interfere with the decision to

appoint 531 Panchayat Secretaries from the Dalpatis, after

specifically observing that such an action would not have the

stamp of approval of the Court.

10. It was held categorically, by the learned Single

Judge, in the impugned judgment, after looking into the

averments made in the counter affidavit and the documents that

there can be no mandamus issued in the writ petition since in

West Champaran district there is no post available for

accommodating extra Dalpatis. The Court also directed the

Collector to reverify and examine whether the petitioners could

be accommodated.

11. We have already dealt with the communications

and the decisions placed before Court and fully agree with the

learned Single Judge. As has been pointed out by the learned

Advocate General, the post of Dalpati is a district cadre post and

their absorption cannot be made outside the districts. Specific

reference was made to Annexure-S and S/1 produced along with

the supplementary counter affidavit of the first respondent dated Patna High Court L.P.A No.1165 of 2018 dt.04-08-2023

13.12.2022. The list indicates the sanctioned post of Dalpatis in

the various districts, the posts available on reorganization of the

State of Bihar after separation of the State of Jharkhand, the

persons working in the post of Panchayat Secretaries and those

created, newly to be accommodated. It is pertinent to mention

here that Subhash Chandra Shukla specifically found that a

Dalpati by virtue of his position as such cannot be considered

for promotion and appointment as Panchayat Secretary, unless it

is so provided by the Legislature. It was categorically held that a

Dalpati cannot as a matter of right be considered for

appointment as Panchayat Secretary but, since the Government

created 531 posts it was directed that for the purpose of

appointing Dalpatis as Panchayat Secretaries the said posts

would be filled up from the Dalpatis.

12. Annexure S/1 indicates the 531 posts created in

the various districts for the purpose of absorption of Dalpatis as

Panchayat Sewaks and West Champaran does not have any such

vacant post. We have already seen that there was no creation of

posts in the West Champaran district from Annexure-S.

13. In the circumstances above, we find absolutely no

reason to interfere with the judgment of the learned Single

Judge. We dismiss the appeal leaving the parties to suffer their Patna High Court L.P.A No.1165 of 2018 dt.04-08-2023

respective costs.

14. Interlocutory Application(s), if any, stands closed.

(K. Vinod Chandran, CJ)

Partha Sarthy, J: I agree.

(Partha Sarthy, J) P.K.P./-

AFR/NAFR
CAV DATE                21.07.2023
Uploading Date          04.08.2023
Transmission Date