Patna High Court
State Bank Of India Officers ... vs The State Of Bihar Through The Addl. ... on 27 February, 2025
Author: Ashutosh Kumar
Bench: Partha Sarthy, Ashutosh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.19006 of 2021
======================================================
State Bank of India Officers Association, an association registered under The
Trade Union Act, 1926, having its registered office at State Bank Building,
West Gandhi Maidan, District- Patna, Bihar 800001 through its General
Secretary Mr. Ajit Mishra Male aged about 59 years, S/o Shri Saryug Prasad
Mishra Resident of Annapurna Bhawan, Nand Lal Mishra Lane, Bari
Khnajarpur, Bhagalpur.
... ... Petitioner/s
Versus
1. The State of Bihar through the Addl. Chief Secretary, Cabinet Secretariat
Department, Government of Bihar, bailey Road, Veerchand Patel Road Area,
Patna, Bihar - 800015.
2. The Additional Chief Secretary, Panchayati Raj Department, Government of
Bihar, Bailey Road, Veerchand Patel Road
3. State Election Commission, Bihar through the State Election Commissioner,
Sone Bhawan, Daroga Rai Path, R. Block Chauraha, Patna, Bihar - 800001.
4. The Election Commission of India (ECI) through the Chief Election
Commissioner, Nirvachan Sadan, Ashoka Road, New Delhi.
5. District Election Officer (Panchayat) cum District Magistrate, Araria.
6. District Election Officer (Panchayat) cum District Magistrate, Arwal.
7. District Election Officer (Panchayat) cum District Magistrate, Aurangabad.
8. District Election Officer (Panchayat) cum District Magistrate, Banka.
9. District Election Officer (Panchayat) cum District Magistrate, Begusarai.
10. District Election Officer (Panchayat) cum District Magistrate, Bhagalpur.
11. District Election Officer (Panchayat) cum District Magistrate, Bhojpur.
12. District Election Officer (Panchayat) cum District Magistrate, Buxar.
13. District Election Officer (Panchayat) cum District Magistrate, Darbhanga.
14. District Election Officer (Panchayat) cum District Magistrate, East
Champaran (Motihari)
15. District Election Officer (Panchayat) cum District Magistrate, Gaya.
16. District Election Officer (Panchayat) cum District Magistrate, Gopalganj.
17. District Election Officer (Panchayat) cum District Magistrate, Jamui.
18. District Election Officer (Panchayat) cum District Magistrate, Jehanabad.
19. District Election Officer (Panchayat) cum District Magistrate, Kaimur
(Bhabua).
20. District Election Officer (Panchayat) cum District Magistrate, Katihar.
21. District Election Officer (Panchayat) cum District Magistrate, Khagaria.
22. District Election Officer (Panchayat) cum District Magistrate, Kishanganj.
23. District Election Officer (Panchayat) cum District Magistrate, Lakhisarai.
Patna High Court CWJC No.19006 of 2021 dt. 27-02-2025
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24. District Election Officer (Panchayat) cum District Magistrate, Madhepura.
25. District Election Officer (Panchayat) cum District Magistrate, Madhubani.
26. District Election Officer (Panchayat) cum District Magistrate, Munger
(Monghyr).
27. District Election Officer (Panchayat) cum District Magistrate, Muzaffarpur.
28. District Election Officer (Panchayat) cum District Magistrate, Nalanda.
29. District Election Officer (Panchayat) cum District Magistrate, Nawada.
30. District Election Officer (Panchayat) cum District Magistrate, Patna.
31. District Election Officer (Panchayat) cum District Magistrate, Purnia
(Purnea)
32. District Election Officer (Panchayat) cum District Magistrate, Rohtas.
33. District Election Officer (Panchayat) cum District Magistrate, Saharsa.
34. District Election Officer (Panchayat) cum District Magistrate, Samastipur.
35. District Election Officer (Panchayat) cum District Magistrate, Saran.
36. District Election Officer (Panchayat) cum District Magistrate, Sheikhpura.
37. District Election Officer (Panchayat) cum District Magistrate, Sheohar.
38. District Election Officer (Panchayat) cum District Magistrate, Sitamarhi.
39. District Election Officer (Panchayat) cum District Magistrate, Siwan.
40. District Election Officer (Panchayat) cum District Magistrate, Supaul.
41. District Election Officer (Panchayat) cum District Magistrate, Vaishali.
42. District Election Officer (Panchayat) cum District Magistrate, West
Champaran.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 16086 of 2021
======================================================
1. Ashok Kumar, son of Sri Deonandan Rai resident of ManasMarg, South
Nehru Nagar, P.S.- Patliputra, District- Patna, presently posted as Law
Officer, Central Bank of India, Regional Office, Maurya Lok, Patna.
2. Pran Nath Pathak, son of Late Vijay Kumar Pathak resident of Sharan Vihar
Apartment, New Patliputra Colony, P.S.- Patliputra, District- Patna,
presently posted as Law Officer, Central Bank of India, Zonal Office,
Maurya Lok, Patna.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Panchayati Raj
Department, Government of Bihar, Patna.
2. The Bihar State Election Commission through its Secretary, Bihar, Patna.
3. The District Election Officer, Panchayat-cum- District Magistrate, Patna.
Patna High Court CWJC No.19006 of 2021 dt. 27-02-2025
3/17
4. Union of India through The Secretary, Department of Law and Justice, New
Delhi.
5. Election Commission of India through its Secretary, Nirwachan Bhawan,
Ashoka Road, New Delhi.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 14316 of 2022
======================================================
State Bank of India Officers Association an association registered under The
Trade Union Act, 1926, having its registered office at State Bank Building,
West Gandhi Maidan, District- Patna, Bihar- 800001 through its General
Secretary Mr. Amaresh Vikramaditya, Male, aged about 42 years, S/o Dr
Prasant Sharan, Resident of Road No. 5 B, Ashok Nagar Kankarbagh,
Dawarika College P.O. and P.S. Kankarbagh, Patna Bihar.
... ... Petitioner/s
Versus
1. The State of Bihar through the Additional Chief Secretary, Cabinet
Secretariat Department, Government of Bihar, Bailey Road, Veerchand Patel
Road Area, Patna, Bihar- 800015.
2. State Election Commission, Bihar through the State Election Commissioner,
Sone Bhawan, Doraga Rai Path, R Block Chauraha, Patna, Bihar- 800001
3. District Election Officer (Municipal) cum District Magistrate, Araria.
4. District Election Officer (Municipal) cum District Magistrate, Arwal.
5. District Election Officer (Municipal) cum District Magistrate, Aurangabad.
6. District Election Officer (Municipal) cum District Magistrate, Banka.
7. District Election Officer (Municipal) cum District Magistrate, Begusarai.
8. District Election Officer (Municipal) cum District Magistrate, Bhagalpur.
9. District Election Officer (Municipal) cum District Magistrate, Bhojpur.
10. District Election Officer (Municipal) cum District Magistrate, Buxar.
11. District Election Officer (Municipal) cum District Magistrate, Darbhanga.
12. District Election Officer (Municipal) cum District Magistrate, East
Champaran (Motihari).
13. District Election Officer (Municipal) cum District Magistrate, Gaya.
14. District Election Officer (Municipal) cum District Magistrate, Gopalganj.
15. District Election Officer (Municipal) cum District Magistrate, Jamui.
16. District Election Officer (Municipal) cum District Magistrate, Jehanabad.
17. District Election Officer (Municipal) cum District Magistrate, Kaimur
(Bhabua).
18. District Election Officer (Municipal) cum District Magistrate, Katihar.
19. District Election Officer (Municipal) cum District Magistrate, Khagaria.
Patna High Court CWJC No.19006 of 2021 dt. 27-02-2025
4/17
20. District Election Officer (Municipal) cum District Magistrate, Kishanganj.
21. District Election Officer (Municipal) cum District Magistrate, Lakhisarai.
22. District Election Officer (Municipal) cum District Magistrate, Madhepura.
23. District Election Officer (Municipal) cum District Magistrate, Madhubani.
24. District Election Officer (Municipal) cum District Magistrate, Munger
(Monghyr).
25. District Election Officer (Municipal) cum District Magistrate, Muzaffarpur.
26. District Election Officer (Municipal) cum District Magistrate, Nalanda.
27. District Election Officer (Municipal) cum District Magistrate, Nawada.
28. District Election Officer (Municipal) cum District Magistrate, Patna.
29. District Election Officer (Municipal) cum District Magistrate, Purnia
(Purnea).
30. District Election Officer (Municipal) cum District Magistrate, Rohtas.
31. District Election Officer (Municipal) cum District Magistrate, Saharsa.
32. District Election Officer (Municipal) cum District Magistrate, Samastipur.
33. District Election Officer (Municipal) cum District Magistrate, Saran.
34. District Election Officer (Municipal) cum District Magistrate, Sheikhpura.
35. District Election Officer (Municipal) cum District Magistrate, Sheohar.
36. District Election Officer (Municipal) cum District Magistrate, Sitamarhi.
37. District Election Officer (Municipal) cum District Magistrate, Siwan.
38. District Election Officer (Municipal) cum District Magistrate, Supaul.
39. District Election Officer (Municipal) cum District Magistrate, Vaishali.
40. District Election Officer (Municipal) cum District Magistrate, West
Champaran.
... ... Respondent/s
======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 19006 of 2021)
For the Petitioner/s : Mr. S.K. Shrivastava, Adv.
Mr. Apurv Harsh, Adv.
Mr. Manu Tripurari, Adv.
Mr. Pranshu Prakash, Adv.
Ms. Jaya Singh, Adv.
Mr. Hritik Anand, Adv.
Mr. Raghu Raj Pratap, Adv.
Mr. Astitva, Adv.
For the State : Mr. P.K. Shahi, A.G.
Mr. Vikas Kumar, AC to AG
Mr. Sanjiv Kumar, Adv.
For the SEC : Mr. Ravi Ranjan, Adv.
Mr. Girish Pandey, Adv.
For the ECI : Mr. Siddhartha Prasad, Adv.
(In Civil Writ Jurisdiction Case No. 16086 of 2021)
For the Petitioner/s : Mr. Siddharth Harsh, Adv.
Patna High Court CWJC No.19006 of 2021 dt. 27-02-2025
5/17
For the State : Mr. Sanjay Kumar Ghosarvey, AC to AAG-3
For the ECI : Mr. Siddhartha Prasad, Adv.
For the SEC : Mr. Girish Pandey, Adv.
(In Civil Writ Jurisdiction Case No. 14316 of 2022)
For the Petitioner/s : Mr. S.K. Shrivastava, Adv.
Mr. Apurv Harsh, Adv.
Mr. Manu Tripurari, Adv.
Mr. Pranshu Prakash, Adv.
Ms. Jaya Singh, Adv.
Mr. Hritik Anand, Adv.
Mr. Raghu Raj Pratap, Adv.
Mr. Astitva, Adv.
For the State : Mr P.K. Shahi, AG
Mr. Pawan Kumar, AC to AG
For SEC : Mr. Ravi Ranjan, Advocate
Mr. Girish Pandey, adv
======================================================
CORAM: HONOURABLE THE ACTING CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE PARTHA SARTHY
CAV JUDGMENT
(Per: HONOURABLE THE ACTING CHIEF JUSTICE)
Date : 27-02-2025
The petitioners in C.W.J.C. Nos. 19006 of 2021
& 14316 of 2022, a registered association of State Bank
of India Officers, functioning in the State of Bihar and
Jharkhand and petitioners in C.W.J.C. No. 16086 of
2021, who are the Law Officers of the Central Bank of
India, have questioned the vires of Section 125(9)(b) of
the Bihar Panchayat Raj Act, 2006 (hereinafter referred
to as the "Act of 2006") on the ground that such
provision has been incorporated in the Act of 2006
without the legislative competence of the Legislature of
Patna High Court CWJC No.19006 of 2021 dt. 27-02-2025
Bihar.
2. It would only be appropriate to cull out
Section 125(9) of the Act of 2006 which was inserted in
the Act vide Section 12 of the Amendment Act 10 of
2009 :
"125 (9) Staff of certain
authorities to be made available for
election work.-
(a) The authorities specified in
clause (b) shall, when so requested by the
District Election Officer, (Panchayat), make
available to any returning officer such staff
as may be necessary for the performance
of any duties in connection with an
election. Duties related with polling,
counting of votes, maintenance of law and
order, patrolling and magistracy etc. shall
be deemed to be included under election
duty.
(b) The following shall be the
authorities for the purposes of clause (a),
namely :
(i) Every local authority;
(ii) a Government company as
defined in Section 617 of the Companies
Act, 1956 (1 of 1956);
(iii) any other institution, concern
Patna High Court CWJC No.19006 of 2021 dt. 27-02-2025
or undertaking which is established by or
under a Central, Provincial or State Act or
which is controlled, or financed wholly or
substantially by funds provided, directly or
indirectly, by the Central Government or a
State Government."
3. The aforenoted provision specifies that staff
of the authorities listed under Section 125(9)(b) shall be
made available for election work whenever requested by
the District Election Officer (Panchayat) for the
performance of any duties in connection with an election.
Duties related with polling, counting of votes,
maintenance of law and order, patrolling and magistracy
etc. shall be deemed to be included under the election
duty.
4. Amongst the list of authorities are: (i) Every
local authority; (ii) A Government Company as defined in
Section 617 of the Companies Act, 1956 and; (iii) Any
other institution, concern or undertaking which is
established by or under a Central, Provincial or State Act
or which is controlled, or financed wholly or substantially
Patna High Court CWJC No.19006 of 2021 dt. 27-02-2025
by funds provided, directly or indirectly, by the Central
Government or a State Government.
5. The State Bank of India comes under the
definition of a Government Company as defined in
Section 617 of the Companies Act and the petitioners are
the association of the officers of the SBI working in the
State of Bihar and Jharkhand/Law Officers of the Central
Bank of India, as noted above.
6. Section 123 of the Act of 2006 provides that
there shall be a State Election Commission for
Superintendence, direction and control of the preparation
of electoral rolls for, and the conduct of, all elections to
the Panchayat bodies in the State under this Act and the
Rules made thereunder. Sub-section (3) of Section 123
further states that when the Government shall, when so
requested by the State Election Commission, make
available to the State Election Commission such officers
and staff as may be necessary for the discharge of
Patna High Court CWJC No.19006 of 2021 dt. 27-02-2025
functions conferred on the State Election Commission
under the Act.
7. It has been urged before us that the Bihar
Legislature could not have brought about such
amendment with respect to even Panchayat election for
the reason that there is no entry in List-II of the Seventh
Schedule which would provide the power to the State
Legislature to enact any law with respect to elections.
8. The List-I of Seventh Schedule (Union List),
through Entry-72 gives power to the Parliament to enact
any law with respect to elections which deals with
elections to Parliament; to the Legislature of States and
to the offices of President and Vice-President and the
Election Commission.
9. The absence of any entry or a legislative head
in the State List (List-II) makes the amendment brought
about in the Act of 2006 ultravires the Constitution.
Patna High Court CWJC No.19006 of 2021 dt. 27-02-2025
10. It has been urged on behalf of the
petitioners that similar provision in Representation of the
People Act, 1951, viz., Section 159 is by virtue of the
power of the Parliament under Entry 72 of the Union List.
No similar power is provided in State List (List-II).
11. The aforenoted argument is absolutely
unfounded.
12. Article 243-K of the Constitution reads as
follows :-
"243-K. Elections to the
Panchayats.- (1) The superintendence,
direction and control of the preparation of
electoral rolls for, and the conduct of, all
elections to the Panchayats shall be vested
in a State Election Commission consisting
of a State Election Commissioner to be
appointed by the Governor.
(2) Subject to the provisions of
any law made by the Legislature of a State,
the conditions of service and tenure of
office of the State Election Commissioner
shall be such as the Governor may by rule
determine:
Provided that the State Election
Commissioner shall not be removed from
Patna High Court CWJC No.19006 of 2021 dt. 27-02-2025
his office except in like manner and on the
like grounds as a Judge of a High Court and
the conditions of service of the State
Election Commissioner shall not be varied
to his disadvantage after his appointment.
(3) The Governor of a State
shall, when so requested by the State
Election Commission, make available to the
State Election Commission such staff as
may be necessary for the discharge of the
functions conferred on the State Election
Commission by clause (1).
(4) Subject to the provisions of
this Constitution, the Legislature of a State
may, by law, make provision with respect
to all matters relating to, or in connection
with, elections to the Panchayats."
(emphasis supplied)
13. Sub-section (4) of Article 243-K provides
that subject to the provision of this Constitution, the
Legislature of a State may, by law, make provision with
respect to all matters relating to or in connection with
elections to the Panchayat.
14. Entry 5 of the State List (List-II) provides
the legislative head for local government, that is to say,
the Constitution and the powers of Municipal
Patna High Court CWJC No.19006 of 2021 dt. 27-02-2025
Corporations, Improvement Trusts, District Board, Mining
Settlement Authorities and other local authorities for the
purposes of local self government or village
administration.
15. The source of power to legislate by the State
Legislature thus is clearly provided under Article 243-K
read with Entry 5 of the State List.
16. The learned counsel for the petitioners,
however, has tried to build up an argument that Section
159 of the Representation of the People Act, 1951 was
incorporated by the Parliament on the strength of Entry
72 in List-I, which provides for the legislative heads
relating to elections to Parliament; to Legislatures of the
State and to the offices of President and Vice-President
and Election Commission.
17. No such power can be read in Entry-5 of the
State List, especially relating to elections.
Patna High Court CWJC No.19006 of 2021 dt. 27-02-2025
18. This argument has been noted only to be
rejected.
19. The power to legislate is dealt with under
Article 246 of the Constitution. It has to be read in
conjunction with the entries in the three lists, which define
respective areas of legislative competence of the Union
and the State Legislature.
20. For the sake of completeness, we deem it
appropriate to extract the provisions contained in Articles
245 and 246 of the Constitution of India :
"245. Extent of laws made by
Parliament and by the Legislatures of
States.- (1) Subject to the provisions of
this Constitution, Parliament may make
laws for the whole or any part of the
territory of India, and the Legislature of a
State may make laws for the whole or any
part of the State.
(2) No law made by Parliament
shall be deemed to be invalid on the
ground that it would have extra-territorial
operation.
246. Subject matter of laws
made by Parliament and by the
Patna High Court CWJC No.19006 of 2021 dt. 27-02-2025
legislatures of States.- (1)
Notwithstanding anything in clauses (2)
and (3), Parliament has exclusive power to
make laws with respect to any of the
matters enumerated in List I in the
Seventh Schedule (in this Constitution
referred to as the "Union List").
(2) Notwithstanding anything in
clause (3), Parliament, and, subject to
clause (1), the Legislature of any State
also, have power to make laws with respect
to any of the matters enumerated in List
III in the Seventh Schedule (in this
Constitution referred to as the "Concurrent
List").
(3) Subject to clauses (1) and
(2), the Legislature of any State has
exclusive power to make laws for such
State or any part thereof with respect to
any of the matters enumerated in List II in
the Seventh Schedule (in this Constitution
referred to as the "State List").
(4) Parliament has power to
make laws with respect to any matter for
any part of the territory of India not
included [in a State] notwithstanding that
such matter is a matter enumerated in the
State List."
21. While interpreting these entries, the issues
have to be viewed not in a narrow or myopic manner but
by giving the widest scope to the meaning of the entries,
Patna High Court CWJC No.19006 of 2021 dt. 27-02-2025
particularly when the vires of a provision of a statute is
assailed.
22. In such circumstances, a liberal construction
has to be given to the entry by looking at the substance of
the legislation and not its mere form. Though there is no
apparent conflict, but as the law stands today, every
attempt has to be made to harmonize or reconcile in case
any conflict arises. In case when there is an apparent
overlapping between the two entries, the doctrine of pith
and substance is applied to find out the true character of
the enactment and the entry within which it would fall.
23. The doctrine of pith and substance, in short
means, if an enactment substantially falls within the
powers expressly conferred by the Constitution upon the
Legislature which enacted it, it cannot be held to be
invalid merely because it incidentally encroaches on
matters assigned to another Legislature. Also, in a
situation where there is overlapping, the doctrine has to
Patna High Court CWJC No.19006 of 2021 dt. 27-02-2025
be applied to determine to which entry, a piece of
legislation could be related. If there is any trenching on
the field reserved to another Legislature or there is a void,
the same would be of no consequence.
24. In order to examine the true character of an
enactment or a provision thereof, due regard must be had
to the enactment as a whole and to its scope and objects.
25. The expression used in Article 246 is "with
respect to" any of the matters enumerated in the
respective lists. The said expression indicates the ambit of
the power of the respective Legislature to legislate as
regards the subject-matters comprised in the various
entries included in the legislative List.
26. Entry-5 in List-II read with Article 243-K
leaves no manner of doubt that the amendment carried
out in the Act of 2006 in Section 125 by incorporating
sub-section (9) is within the legislative competence of the
Bihar Legislature.
Patna High Court CWJC No.19006 of 2021 dt. 27-02-2025
27. No good ground has been made out by the
petitioners to question the validity/ constitutionality of the
amendment.
28. There is no merit in these petitions and the
same are dismissed.
29. Interlocutory application(s), if any, also
stands disposed off accordingly.
(Ashutosh Kumar, ACJ)
Partha Sarthy, J: I agree.
(Partha Sarthy, J)
Rajesh/Saurav
AFR/NAFR NAFR
CAV DATE 19.02.2025
Uploading Date 27.02.2025
Transmission Date NA
