Patna High Court - Orders
The State Of Bihar & Ors vs Bal Mukund Singh on 12 August, 2011
Author: S. K. Katriar
Bench: S. K. Katriar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1335 of 2010
In
(CIVIL WRIT JURISDICTION CASE No. 17425/2009)
1. The State of Bihar through its Secretary, Human
Resources Development Department, Govt. of Bihar,
Patna.
2. The Principal Secretary, Human Resources
Development Department, Govt. of Bihar, Patna.
3. The District Magistrate, Munger.
4. The District Compassionate Appointment
Committee, Munger, District- Munger.
5. The District Superintendent of Education, Munger.
------------Respondents/ Appellants.
Versus
Bal Mukund Singh, Son of Late Ajab Lal Singh
Resident of Village - Farsha, P.S. Sangrampur,
District.- Munger.
-------------------Petitioner/ Respondent.
----------------
5. 12.08.2011Learned counsel appearing for the appellants is present. Inspite of valid service of notice, nobody appears on behalf of the respondent.
The present intra-court appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna has been filed by the appellant State of Bihar and its functionaries being aggrieved by the order dated 12.4.2010 passed in C.W.J.C. No. 17425 of 2009 (Balmukund Singh Vs. the State of Bihar & Ors.). The writ petition was filed for a direction to the respondents (the present appellants) to appoint the writ petitioner on a post under the State of Bihar as per the recommendation of the District Compassionate 2 Committee, and not on the post of Panchayat Teacher. The main plea of the writ petitioner was that they were the wards of Government servants who had died in harness and, as per the scheme of compassionate appointment, they were entitled to be appointed either on class III post or class IV post as per the recommendation of the District Compassionate Committee for appointment on a post under the State Government. The writ petitioner is aggrieved by the fact that, instead of giving him appointment on a Government post, he is being appointed as Panchayat Teacher on fixed remuneration.
After hearing the parties, the learned Single Judge was pleased to allow the writ petition holding that the action of the State Government was not justified and the grievance of the writ petitioner was well-founded. The learned Single Judge further relied on the decision rendered in the case of Brajesh Kumar & Ors. Vs. The State of Bihar & Ors. and the analogous cases, reported in 2010 (1) PLJR 339, in which the letter by the State Government to the effect that such appointments on compassionate ground may be made on the post of Panchayat/Parkhand/Block Teacher, had been quashed.
Learned counsel for the appellants states that the decision in Brajesh Kumar (Supra), has been 3 over-ruled by a Full Bench in L.P.A. No. 321 of 2010 (The State of Bihar & Ors. Vs. Rajeev Ran Vijay Kumar), reported in 2010 (3) PLJR 294, and validity of such direction of the State Government for making appointments has been upheld. Relying on the said judgment of the Full Bench, learned counsel for the appellants submits that the present appeal may be allowed.
After hearing learned counsel for the appellants and going through the judgment of the Full Bench, we find that one vital aspect of the matter has neither been raised nor noticed/discussed in the said judgment rendered of the Full Bench. The same relates to the limited competence and jurisdiction of the State Government to issue directions to the Panchayats. Attention of the Full Bench was not invited to the provisions of 11(3) & Section 156 of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as the „Act‟) In view of Section 11(3) of the Act, every Panchayat is a separate legal entity which can sue or be sued in its own capacity. A Panchayat is not a department of the State Government, and the latter has very limited powers in terms of Section 156 of the Act to issue directions to the former. A Division Bench of this Court had earlier occasion to deal with this aspect and by order dated 4 26.3.2011 passed in L.P.A. No. 1818 of 2010 (The State of Bihar through the Principal Secretary & Ors. Vs. Nagendra Prasad Arya & Ors.), reported in 2011 (2) BBCJ 657, has held that the State Government has very limited power restricted to Section 156 of the Act to issue directions to the Panchayat. This Section has to be read with Section 11 (3) of the said Act, which lays down to the effect that:-
"Every Gram Panchayat shall be a body corporate by the name of its Gram Panchayat and shall have perpetual succession and a common seal and subject to such restrictions as are imposed by or under this Act or any other enactment, shall be vested with the capacity of suing or being sued in its corporate name, of acquiring, holding and transferring property, movable or immovable, whether without or within the limits of the area over which it has authority, or entering into contracts and of doing all things necessary, proper and expedient for the purpose for which it is constituted".
In that view of the matter, it is open to challenge whether the State Government is competent to saddle its own liability having to provide appointment on compassionate ground on the Panchayat which are not under its control including appointments. This crucial issue involved in the present case has not been considered in the decision of the Full Bench. Therefore, let the present matter be placed before the Hon‟ble the Chief Justice whether or not the present matter needs 5 consideration by a larger Bench.
Put up before the Hon‟ble the Chief Justice for appropriate orders.
(S. K. Katriar, J.) (Ahsanuddin Amanullah, J.) Anand Kr.