IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.14207 of 2010
MAKSUDAN PASWAN @ MADHUSUDAN PASWAN, S/O SRI
INDRADEO PASWAN, R/O VILL.- JATHIYAR, P.S. ASTHAWAN,
DISTT.- NALANDA.....................PETITIONER
Versus
1. THE STATE OF BIHAR THROUGH THE DEPARTMENT OF
PANCHAYATI RAJ GOVERNMENT OF BIHAR, PATNA
2. PRINCIPAL SECRETARY, DEPARTMENT OF PANCHAYATI
RAJ, GOVERNMENT OF BIHAR, PATNA
3. ANUSHRAWAN PADADHIKARI, PANCHAYATI RAJ, BIHAR,
PATNA
4. DISTRICT MAGISTRATE, NALANDA AT BIHARSHARIF
5. DISTRICT SUPERINTENDENT OF EDUCATION, NALANDA
AT BIHARSHARIF
6. BLOCK DEVELOPMENT OFFICER, ASTHAWAN, DISTT.-
NALANDA
7. BLOCK EDUCATION EXTENSION OFFICER, ASTHAWAN,
DISTT.- NALANDA
8. PINKU KUMAR SON OF ARJUN RAM, RESIDENT OF
VILLAGE DUMRAWAN, P.O. ABDACHAK, P.S. ASTHAWAN,
DISTRICT NALANDA.............RESPONDENTS
For the petitioner : M/s Basant Chaudhary and Rabindra Kumar,
Advocates.
For the State : Mr. Manoj Kumar Jha, AC to GA-I
For respondent no.8 : M/s Vidya Sagar and Samir Kumar Ranjan,
Advocates.
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ORDER
08/ 20.12.2010 This writ petition has been filed challenging order
dated 09.08.2010 (Annexure-1) passed by the Principal
Secretary, Panchayati Raj Department, Government of Bihar,
Patna (respondent no.2) by which the petitioner was removed
from the post of Mukhiya of Raj Dumrawan Gram Panchayat
(hereinafter referred to as ‘the Gram Panchayat’ for the sake of
brevity) in the district of Nalanda under the provision of
section 18(5) of the Bihar Panchayat Raj Act, 2006 (hereinafter
referred to as ‘the Act’ for the sake of brevity) and for other
ancillary reliefs.
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2. I.A. No.7600 of 2010 was filed on 19.08.2010
on behalf of the petitioner for stay of the operation of the
impugned order but the said interlocutory application was
directed vide order dated 07.09.2010 to be considered along
with the admission matter. However, by the said order
respondent no.8 was added to the writ petition as he was not
considered for appointment to the post of Panchayat Shikshak
and on his representation the enquiry was conducted and the
impugned order was passed against the petitioner.
3. Learned counsel for the petitioner has
submitted that he was duly elected as Mukhiya of the Gram
Panchayat in the election of 2006 and since then he has been
functioning as such. He further stated that in the year 2007
Panchayat Shikshak was to be appointed in the Gram
Panchayat and for that purpose a Selection Committee of five
members, including the petitioner as ex-officio Mukhiya was
appointed by the government and after interview and
verification of certificates and materials one Sudhir Kumar was
selected for the post of Panchayat Shikshak.
4. Learned counsel for the petitioner averred that
the said Sudhir Kumar did not suppress any fact and had
mentioned that he passed his Intermediate Examination
obtaining 63.35 per cent marks, whereafter for increasing his
marks he also appeared in Madhyama Examination conducted
by Hindi Sahitya Sammelan and obtained 75 per cent marks. In
the said circumstances, a tentative merit list was prepared and
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published for inviting objections and accordingly the said
Sudhir Kumar submitted his objection relying upon a decision
of this High Court passed in C.W.J.C. No.1074 of 2008 and
C.W.J.C. No.6353 of 2009 in which it was held that certificate
of Hindi Sahitya Sammelan has to be considered for the
purpose of selecting a person on the post of Panchayat
Shikshak. Thereafter, a final gradation list was prepared and
roster clearance was also done. Learned counsel for the
petitioner also averred that there is no illegality in preparation
of the said list.
5. Learned counsel for the petitioner further
claimed that the impugned order of the Principal Secretary
(respondent no.2) is mechanical in nature without considering
the explanation of the petitioner (Annexure-8) and the evidence
produced by the petitioner which were only enumerated
without valid consideration. He also stated that there was no
material before the Principal Secretary (respondent no.2)
except the report of the District Magistrate which was also
dependent upon the report of Superintendent of Police. The
aforesaid two reports and the impugned order were all based on
the only ground that two merit lists were prepared, but in none
of those reports and order the authorities could find that any of
those lists was illegal or any irregularity was committed in
them.
6. It was also claimed by learned counsel for the
petitioner that the Principal Secretary (respondent no.2) in his
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impugned order dated 09.08.2010 (Annexure-1) observed that
Selection Committee should not have accepted the second
mark sheet of Sudhir Kumar failing to appreciate that the
second mark sheet being legal and valid, there was no occasion
for discarding the same, specially when he had every right to
improve his qualification in 1993 from the qualification he had
in 1992 and he has been working since 2007.
7. Learned counsel for the petitioner further
argued that misconduct means continuance of conscious
illegalities but in the instant case there is only a singular act
and that too by a Selection Committee of five persons,
including the Mukhiya (petitioner), Panchayat Secretary
(Government Officer), Member selected by
D.S.E.(Government Officer), Teachers Representative and
Ward Member, but in the instant case only the petitioner and
the Panchayat Secretary have been chosen to be punished
which shows the arbitrariness and malafide of the persons
concerned. Thus, learned counsel for the petitioner claimed
that the petitioner being a democratically elected officer, his
removal from the office, which is an extreme step, could have
been resorted to only in grave and exceptional circumstances
and not for any such minor irregularity.
8. On the other hand, learned counsel for
respondent no.8 vehemently contested the claim of the
petitioner and stated that he was also a candidate for Panchayat
Shikshak as extremely backward class having 55 per cent
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marks, but was not considered in either of two lists by the
Selection Committee, although he had appeared for counseling
on 28.11.2006 and two other extremely backward class
candidates, namely, Manoj Kumar Sharma and Vinay Kumar
having lesser marks were included in the list. He also states
that in the said circumstances, both the lists (Annexure-5 and 6
to the interlocutory application dated 06.08.2010 filed by
respondent no.8) were illegal and hence direction was given for
lodging an F.I.R. (Annexure-9), whereafter steps were taken by
the authorities concerned which are clear from Annexures-10,
11, 12, 13, 14, 15 and 16 of the said interlocutory application.
9. Learned counsel for respondent no.8 also
averred that the impugned order was passed by the Principal
Secretary (respondent no.2) after giving notice to the
petitioner, whereafter the petitioner filed show-cause, which
was considered. He further stated that the impugned order is
quite justified as Sudhir Kumar, who was of a different
Panchayat, was appointed and his appointment was annulled
by the Member, Zila Shiksha Niyojan Pradhikar, Nalanda in
Case No.23 of 2008-09 on 10.01.2009 which was sent to
respondent no.8 vide letter dated 22.07.2009 (Annexure-15).
He relied upon a decision of this court in the case of
Bindeshwar Prasad vs. The State of Bihar & Ors., reported
in 2010 (4) P.L.J.R. 314.
10. Learned counsel for the State of Bihar and its
authorities (respondent nos.1 to 7) supported the arguments
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made by learned counsel for respondent no.8 and raised same
points against the claim of the writ petitioner.
11. Considering the arguments of learned counsel
for the parties as well as the materials on record, it is quite
apparent that the impugned order was passed under section 18
(5) of the Act and the authorities concerned, namely, the
Principal Secretary (respondent no.2) and the District
Magistrate (respondent no.4) were the authorities to take
necessary steps under the Act, but the question involved in this
case is whether they have exercised their jurisdiction in
accordance with law not violating any settled principles of law
and whether there existed any grave and exceptional
circumstances for which such an extreme step was necessary to
be resorted to.
12. It is quite apparent from the impugned order
of the Principal Secretary (respondent no.2) as well as from
other orders of the authorities concerned that the only
allegation against the Selection Committee, including the
petitioner was that two merit lists were prepared; one in the
year 1992 in which Sudhir Kumar was shown to have obtained
63.35 per cent marks, whereas in the second list he had been
shown to have secured 75 per cent marks and on the basis of
the second list he was appointed on the post of Panchayat
Shikshak, which, according to the respondents, was against the
legal procedure and was a gross irregularity.
13. So far genuineness of the said two lists are
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concerned, the first list was on the basis of 63.35 per cent
marks obtained by Sudhir Kumar in his Intermediate
Examination in the year 1992, but since subsequently he had
improved his marks in the year 1993 by getting 75 per cent
marks in the Madhyama Examination conducted by Hindi
Sahitya Sammelan which was a recognized institution, the
second merit list showed the said Sudhir Kumar having
obtained 75 per cent marks. Neither respondents authorities nor
the private respondent had ever raised any objection that the
certificates of the said Sudhir Kumar were illegal or forged or
it had no value in the eye of law. Hence, there is no falsehood
in the facts given in the two merit lists.
14. So far the validity of the two merit lists are
concerned, it has been specifically stated by the petitioner that
the said Sudhir Kumar did not suppress any fact and had
mentioned that he passed his Intermediate Examination in the
year 1992 having obtained 63.35 per cent marks, but
subsequently for enhancing his qualification he appeared in
Madhyama Examination of 1993 conducted by the Hindi
Sahitya Sammelan obtaining 75 per cent marks. In the said
circumstances a tentative list was prepared and published for
inviting objections showing the said Sudhir Kumar to have
obtained 63.35 per cent marks, whereafter the said Sudhir
Kumar raised objections that the result in the Madhyama
Examination was legal and valid and had to be considered and
only thereafter the final gradation list was prepared showing
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the petitioner to have obtained 75 per cent marks and
accordingly, the roster clearance was done. This fact is fully
proved by the petitioner but the respondents have failed to
disprove the said fact by any material whatsoever, nor they
could even show that the appearance of the petitioner in the
Madhyama Examination of Hindi Sahitya Sammelan after
passing the Intermediate Examination in 1992 was illegal or it
was not to be considered for appointment of a Panchayat
Shikshak. Accordingly, the second list prepared by the
Selection Committee was legal and valid and the ground on the
basis of which the petitioner was removed, is absolutely
frivolous and misconceived.
15. So far the claim of respondent no.8 that he
had appeared for counselling before the Selection Committee
on 28.11.2006 is concerned, it is completely falsified by the
materials produced by the petitioner, which clearly showed that
he had never appeared in the counselling held by the Selection
Committee in which other candidates had appeared. In the said
circumstances, only those candidates were included in the two
lists who had appeared in the counselling held by the Selection
Committee. In any view of the matter, admittedly respondent
no.8 had obtained only 55 per cent marks in his Intermediate
Examination, whereas there were at least three candidates who
had obtained more marks than him, namely the petitioner, Rubi
Kumari (69.55 per cent marks) and Sushma Kumari (56.44 per
cent marks), but the said two other candidates did not object to
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the petitioner’s appointment on the basis of his obtaining 75
per cent marks. If the candidature of the petitioner was rejected
it was only one of the aforesaid two other candidates, namely
Rubi Kumari or Sushma Kumari, who could have got the
benefit, whereas respondent no.8 was nowhere in picture.
Accordingly, respondent no.8 was not entitled at all to raise
any objection against the appointment of petitioner and the
authorities concerned were not justified in entertaining
objections/applications filed by him against the petitioner.
16. Furthermore, respondent no.8 has also failed
to prove by any valid material that the petitioner was not
entitled to be appointed as he belonged to a different
Panchayat, whereas the petitioner has been able to show that he
also belonged to the same area within Ashthawan police station
of the district of Nalanda. Respondent no.8 has also relied
upon a decision of this court in the case of Bindeshwar
Prasad vs. The State of Bihar & Ors., reported in 2010 (4)
P.L.J.R. 314, but in the said case very serious allegations were
proved which was detrimental to the interest of the people of
the Panchayat which he represented due to which it was found
that the petitioner of that case not only committed grave
illegality but also eroded the confidence of people who had
elected him as Mukhiya. Thus, the said case law is not
applicable to the facts and circumstances of this case.
17. It is also an admitted fact that the appointment
of Sudhir Kumar was made by Selection Committee which
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apart from the Mukhiya (petitioner) included Panchayat
Secretary (Government Officer), Member selected by D.S.E.
(Government Officer), Teachers Representatives and Ward
Member and hence there is nothing to show that the said
appointment was made solely at the instance of the petitioner.
Hence, it cannot be legally said that the petitioner has
committed any grave illegality at his own instance favouring
the said candidate Sudhir Kumar for which no reason could
also be shown.
18. Apart from the aforesaid facts, the provisions
of section 18(5) of the Act confer power upon the State
Government for removal of Mukhiya with no provision of
appeal and in furtherance thereof such removal as per the Act
casts a serious stigma on the personal and public life of the
concerned person resulting in his permanent disqualification to
hold such office in future. Hence, the power which is exercised
by the authorities concerned under the aforesaid provision of
law has serious civil consequences on the status of Mukhiya
and his entire career.
19. Furthermore in the said provision of law,
namely section 18 (5) of the Act, no sufficient guidelines have
been given as to the manner in which such power has to be
exercised and hence the authorities of the State Government
should invoke such power only in a very extreme case with
strong reason and should not exercise it in case of minor
irregularities in discharge of duties by the holder of the elected
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post, namely Mukhiya specially because he occupies the said
post by election and he is deprived of the office by an
executive order in a proceeding in which the electorate has no
chance of participation. This view has been very clearly and
specifically held by the Apex Court in the case of Sharda
Kailash Mittal vs. State of Madhya Pradesh & Ors.,
reported in (2010) 2 Supreme Court Cases 319 as well as in
the case of Tarlochan Dev Sharma vs. State of Punjab and
others, reported in (2001) 6 Supreme Court Cases 260.
20. In view of the aforesaid facts and
circumstances as well as the law laid down by the Hon’ble
Supreme Court, this court is constrained to quash the impugned
order of removal of petitioner passed by the Principal
Secretary, Panchayat Raj Department, Government of Bihar
(respondent no.2) as contained in Memo No.148 dated
09.08.2010 (Annexure-1) and also the consequential steps
taken by the respondents authorities. Accordingly, this writ
petition is allowed.
Harish (S.N. Hussain, J.) AFR