Patna High Court - Orders
Bihar Rajya Panchayat Sachiv Sangh vs The State Of Bihar on 22 July, 2019
Author: Ashutosh Kumar
Bench: Ashutosh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.14420 of 2019
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Bihar Rajya Panchayat Sachiv Sangh
... ... Petitioner/s
Versus
The State of Bihar & Ors.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Jitendra Kumar Roy
For the Respondent/s : Mr. Pratik Kumar Sinha, AC to GA-5
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CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
ORAL ORDER
2 22-07-2019The petitioner, in the present petition, is the Association of Panchayat Secretaries. The grievance of the Panchayat Secretaries, represented in this case through their Association, is that despite there being no provision for transfer in the Bihar Gram Panchayat (Appointment of Secretary, Rights and Duties) Rules, 2011 (in short the Rules of 2011), the Panchayat Secretaries are being transferred by the District Magistrate of various districts in the mid-term and even before the completion of the projects which have been entrusted to them.
2. Mr. Jitendra Kumar Roy, the learned Advocate for the petitioner, has drawn the attention of this Court to the Rules of 2011, which provide for appointment of Gram Patna High Court CWJC No.14420 of 2019(2) dt.22-07-2019 2/6 Panchayat Secretary for each Gram Panchayat. Section 3 of the Rules referred to above, postulates that one employee shall be appointed by the State Government in each Gram Panchayat for proper execution of the works devolved on the Gram Panchayat and such employee shall be designated as a Gram Panchayat Secretary. Sub-Clause (2) of Rule 3 further indicates that all Panchayat Sevaks, so appointed till date, shall be appointed as Panchayat Secretary of any Gram Panchayat. Sub-Clause (3) of Rule 4 of the aforesaid Rules further clarifies that the District Magistrate shall be the competent authority for appointment on the post of Gram Panchayat Secretary and the Cadre of such Gram Panchayat Secretary shall be of the District Level. Under Rule 8 of the Rules of 2011, the Gram Panchayat Secretaries are to work under the control of Gram Panchayat, but their salaries etc. are required to be paid by the Executive Officer of the Panchayat Samiti, but only on the basis of "absentee statement" given by the Gram Panchayats. Section 9 of the Rules of of 2011, which deals with the service conditions, clearly specify that the matters relating to their services shall Patna High Court CWJC No.14420 of 2019(2) dt.22-07-2019 3/6 be disposed in accordance with the provisions of the relevant service rules.
3. It has been submitted on behalf of the petitioner/Association that there are no service rules prevalent for Gram Panchayat Secretaries. However, a provision has been made in Section 12 of the Rules of 2011 that disciplinary action against the members of the service (of Panchayat Secretaries) shall be taken in accordance with the provisions of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005.
4. The sum and substance of the argument of Mr. Roy, the learned Advocate, is that once the Panchayat Secretaries are appointed by the Government, they, no doubt, become employees of the Government, but their Cadre is only District Level. There is no provision for transferring a person from one Gram Panchayat as Panchayat Secretary to another Gram Panchayat. The reason for not including such provision of transfer is that more often than not, persons conversant with the specific Gram Panchayats are normally appointed as Panchayat Patna High Court CWJC No.14420 of 2019(2) dt.22-07-2019 4/6 Secretaries and their being transferred to another Gram Panchayat would not only hamper the execution of the work devolved upon such Gram Panchayats, but would also force them to leave a particular project entrusted to them, midway. It is precisely for this reason, it has been argued, that no specific provision has been made for their transfer from one Panchayat to another Panchayat.
5. On the contrary, Mr. Pratik Kumar Sinha, learned AC to GA-5 has submitted that once the Cadre of Panchayat Secretaries have been held to be District Level and the disciplinary control has been vested with the District Magistrate, it presupposes that they could be transferred from one Gram Panchayat to another, but only in the same district by the District Magistrate. It has further been submitted that Section 19 of the Bihar and Orissa General Clauses Act, 1917 provides that where by any Bihar and Orissa Act or Bihar Act, a power to make any appointment is conferred, then unless a different intention appears, the authority having power to make the appointment shall also have the power to suspend or dismiss any person appointed Patna High Court CWJC No.14420 of 2019(2) dt.22-07-2019 5/6 by it in exercise of that power. Taking resort to the aforesaid provision, it has been urged, a Gram Panchayat Secretary could be transferred from one Panchayat to another Panchayat.
6. This proposition is difficult to accept for the reason that the aforesaid provision only deals with the power to suspend or dismiss, i.e., to take disciplinary action against an errant Panchayat Secretary. This provision has been specified under the Rules of 2011 where the disciplinary proceedings against a Panchayat Secretary is directed to be governed by the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005.
7. Apart from this, Section 19 of the Bihar and Orissa General Clauses Act, 1917, referred to above, deals with the power of the appointing officer. The Panchayat Secretaries are government servants, but the District Magistrate has been entrusted with the authority for appointment of such Gram Panchayat Secretary.
8. In this view of the matter and in the absence of any prohibition for transfer, there does not appear to be any Patna High Court CWJC No.14420 of 2019(2) dt.22-07-2019 6/6 difficulty in accepting the proposition that a person who has been inducted in the service of the government with the Cadre defined as District Level, could be transferred within a district from one Panchayat to another Panchayat. This would only be in consonance with the service jurisprudence that the employer knows best where to keep an employee for effective discharge of duties and completion of such work which has devolved upon the Gram Panchayat.
9. However, the stand of the State would be necessary to be taken into account before passing any final order on this petition.
10. Let counter affidavit in the matter be filed within a period of two weeks positively from today, with a copy to the learned counsel for the petitioner in advance, who may, in the event of his deeming it appropriate, rejoin.
11. Re-notify on 13th August, 2019 within first twenty cases.
(Ashutosh Kumar, J) Praveen-II/-
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