1 W.P.(S) No. 3894 OF 2015 with W.P.(S) Nos. 3235 of 2014, 3139 of 2015, 3182 of 2015, 3242 of 2015 and 3563 of 2015 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 3894 OF2015with W.P.(S) No. 3235 OF2014with W.P.(S) No. 3139 of 2015 with W.P.(S) No. 3182 OF2015with W.P.(S) No. 3242 OF2015with W.P.(S) No. 3563 OF2015Jharkhand Rajya Gram Raksha Dal … Petitioner [in W.P.(S) No. 3894 of 2015] Ajay Kumar Gope …… Petitioner [in W.P.(S) No. 3235 of 2014] 1. Mohan Lal Bhagat 2. Mithilesh Kumar Singh 3. Sabir Ali 4. Ratan Prasad Sah 5. Janardan Prasad Sahu 6. Uttam Kumar Ghosh 7. Humanyu Kabir 8. Kewal Mandal 9. Md. Ali Ahmad 10. Dinanath Thakur 11. Sish Mohammad Ansari 12. Bipin Kumar Saha 13. Md. Manul Mandal 14. Asish Kumar Mandal 15. Sapan Kumar Saha 16. Uttam Kumar Mandal 17. Kalicharan Saha 18. Suresh Prasad Sah 19. Md. Abdul Mokid 20. Narayan Chandra Saha 21. Noore Alam … … … Petitioners[in W.P.(S) No. 3139 of 2015] 1. Manash Kumar Tripathy 2. Raj Kumar Sinha 3. Mahti Singh Kuntia 4. Budhram Oraon 5. Angad Pradhan 6. Shiv Shankar Pradhan 7. Subash Chandra Gope 8. Umakant Mahto 9. Manoj Laguri 10. Gladson Cherwa 11. Salendra Laguri 12. Durgacharan Bundiuli 13. Chitrasen Tripathy 14. Manoranjan Laguri 15. Rajendra Chatomba 16. Jitrai Mundari 17. Mahendra Singh 2 W.P.(S) No. 3894 OF 2015 with W.P.(S) Nos. 3235 of 2014, 3139 of 2015, 3182 of 2015, 3242 of 2015 and 3563 of 2015 18. Niranjan Pradhan 19. Ranso Purti 20. Suresh Hessa 21. Madho Kandulana 22. Dubraj Angaria … … … Petitioners [in W.P.(S) No. 3182 of 2015] Manoranjan Prasad Singh … Petitioner [in W.P.(S) No. 3242 of 2015] 1. Mohan Murari Singh 2. Arjun Prasad 3. Badri Prasad Yadav 4. Prayag Yadav … … … Petitioners [in W.P.(S) No. 3563 of 2015] -V e r s u s - 1. The State of Jharkhand … … Respondent [In all the cases] 2. The Secretary, Panchayati Raj & NREP, Special Division, Ranchi.
3. The Director, Panchayati Raj Directorate, Department of Panchayati Raj & NREP, Special Division, Ranchi. … … Respondents [in W.P.(S) No.3894 of 2015] 2. Deputy Commissioner, Chatra.
3. District Panchayat Raj Officer, Chatra. … … Respondents [in W.P.(S) No. 3235 of 2014] 2. The Secretary, Panchayati Raj & NREP, Special Division, Ranchi.
3. The Director, Panchayati Raj Directorate, Department of Panchayati Raj & NREP, Special Division, Ranchi.
4. The Deputy Commissioner, Pakur …Respondents [in W.P.(S) No. 3139 of 2015] 2. The Secretary, Panchayati Raj & NREP, Special Division, Ranchi.
3. The Director, Panchayati Raj Directorate, Department of Panchayati Raj & NREP, Special Division, Ranchi.
4. The Deputy Commissioner, Chaibasa, West Singhbhum … … Respondents [in W.P.(S) No. 3182 of 2015] 2. The Secretary, Panchayati Raj & NREP, Special Division, Ranchi.
3. The Director, Panchayati Raj Directorate, Department of Panchayati Raj & NREP, Special Division, Ranchi.
4. The Deputy Commissioner, Deoghar. … … Respondents [in W.P.(S) No. 3242 of 2015] 2. The Secretary, Panchayati Raj & NREP, Special Division, Ranchi.
3. The Director, Panchayati Raj Directorate, Department of Panchayati Raj & NREP, Special Division, Ranchi.
4. The Deputy Commissioner, Giridih. … … Respondents [in W.P.(S) No. 3563 OF2015 3 W.P.(S) No. 3894 OF 2015 with W.P.(S) Nos. 3235 of 2014, 3139 of 2015, 3182 of 2015, 3242 of 2015 and 3563 of 2015 CORAM: - HON’BLE MR. JUSTICE H.C. MISHRA HON’BLE MR. JUSTICE DR. S. N. PATHAK For the Petitioner : Mr. Anil Kumar Sinha, Sr. Advocate. Mr. Abhishek Sinha, Advocate. Mr. Satish Kumar, Advocate. Mr. A.K. Sahani, Advocate. Mr. Deepak Kumar Dubey, Advocate. Mr. Satish Kumar, Advocate. For the State : Mr. R.R. Mishra, G.P. - II Mr. Rishikesh Giri, Advocate. By Court:- As common question is involved in all these writ petitions, these writ petitions are taken up together and are decided by this common order.
2. Heard learned counsel for the petitioners and learned counsel for the State in all these writ applications.
3. The petitioners in all these writ petitions were working as Dalpaties and they are claiming appointments to the post of Panchayat Secretary on 50% vacancies to be filled up through Dalpaties, as provided under Rule-5 of Jharkhand Panchayat Sachiv (Niyukti Sevashart Ewam Kartavya) Niyamawali, 2002 [hereinafter referred to as '2002 Rules' in short]. They are aggrieved by the fact that when their cases were recommended by the District Level Selection Committee for being appointed on the post of Panchayat Secretary and were sent for approval to the Director, Panchayati Raj, Government of Jharkhand, their matters were kept pending by the Director, and in the mean time the new Rules were promulgated on 02.07.2015, being Jharkhand Panchayat Sachiv (Niyukti Sevashart Ewam Kartavya) Niyamawali, (Sanshodhit) 2014 [hereinafter referred to as '2014 Rules' in short], according to which all the vacancies to the post of Panchayat Secretary, are now required to be filled up through direct recruitment only. Pursuant to the promulgation of the 2014 Rules, by separate letters dated 06.07.2015, issued by the Director, Panchayati Raj, Government of Jharkhand, to Deputy Commissioners of different Districts, the lists of the recommended candidates were returned back to the Deputy Commissioners of the respective Districts, stating that new 2014 Rules have already come in force on 2.7.2015.
4. Rule 5 of 2002 Rules, prescribed two sources of appointment for the post of Panchayat Secretaries, i.e., 50% posts of the cadre were to be filled up from amongst Dalpaties having minimum of two years of experience, and in accordance with seniority, and the remaining 50% posts were to be filled up through direct recruitment. Again Rule 12 of the 2002 Rules laid down the 4 W.P.(S) No. 3894 OF 2015 with W.P.(S) Nos. 3235 of 2014, 3139 of 2015, 3182 of 2015, 3242 of 2015 and 3563 of 2015 procedure for appointment through both the sources, and laid the responsibility upon the appointing authority to identify the posts separately, falling vacant each year to be filled from both the sources, and sending the same to the Director, Panchayat Raj, for initiating the process of appointment through both the sources, as per the procedure laid down in the Rules. Sub Rule (3) of Rule 12 laid down the procedure for appointment to the posts of Panchayat Secretary, for which the recommendation was to be made by the District Level Selection Committee, headed by the District Magistrate / Deputy Commissioner of the respective district. The said Rule also provided that after completing the selection process, the appointments were to be made only after the approval of the Director, Panchayati Raj.
5. It is an admitted position that cadre of the Panchayat Secretary is district cadre, and according to cases of the petitioners, in all these writ applications, who were working as Dalpaties and having the required qualification for being appointed as Panchayat Secretary in the 50% quota, their cases were considered by their respective District Level Selection Committee, they were selected and their names were sent for approval to the Director, Panchayati Raj, in accordance with 2002 Rules, much prior to coming into force of 2014 Rules, but the Director, Panchayati Raj sat tight over the matter for the reasons best known to him. As soon as the 2014 Rules came into force on 02.07.2015, he conveniently returned back the recommendations on 6.7.2015. One such letter issued to the Deputy Commissioner, Pakur, has been brought on record as Annexure-6 to W.P.(S). No.3139 of 2015.
6. 2002 Rules were promulgated by the State Government exercising the powers under Section 90 of the Jharkhand Panchayati Raj Act, 2001, whereas 2014 Rules have been promulgated by the Governor of Jharkhand under the Proviso to Article 309 of the Constitution of India and the said Rules came into force on the date of its Notification, i.e., 02.07.2015. Rule 5 of 2014 Rules, provides only one source of appointment to the post of Panchayat Secretary, i.e., 100% appointments are to be made through direct recruitment.
7. According to the petitioners, as late as on 22.04.2015, the Principal Secretary, Panchayati Raj and NREP (Special Division) Department, Government of Jharkhand, through his letter No.1236 dated 22.04.2015, as contained Annexure-7 to W.P.(S). No.3139 of 2015, had written letters to all the Deputy Commissioners in the State of Jharkhand, asking them to identify the posts of Panchayat Secretaries to be appointed from both the sources, i.e., from 5 W.P.(S) No. 3894 OF 2015 with W.P.(S) Nos. 3235 of 2014, 3139 of 2015, 3182 of 2015, 3242 of 2015 and 3563 of 2015 Dalpati quota and from direct recruitment. So far the appointments were to be made in 50% Dalpati quota, The Deputy Commissioners were directed to make the recommendations for their appointment at an early date.
8. Learned Sr. Counsel for the petitioners arguing in all these cases has challenged the letter dated 06.07.2015, issued by the Director, Panchayati Raj, to the Deputy Commissioners of the respective districts, returning back the recommendations of the selected candidates and has submitted that the said letter cannot be sustained in the eyes of law, in as much as, the process of selection of the petitioners had been completed in accordance with 2002 Rules, much prior to coming into force of 2014 Rules and accordingly, even if 2014 Rules were promulgated in the mean time, their appointment process could not have been affected by the promulgation of the subsequent Rules. It is submitted by learned Sr. Counsel that it is well settled principle of law that the rule of game cannot be changed when the process of selection had already been started.
9. Alternatively, learned Sr. Counsel argued that the 2002 Rules were promulgated by the State Government exercising the powers under Section 90 of the Jharkhand Panchayati Raj Act, 2001, whereas 2015 Rules have been promulgated in exercise of the powers under Proviso to Article 309 of the Constitution of India by the Governor of State. It is submitted by the learned Sr. Counsel that the Rules promulgated under Proviso to Article 309 of the Constitution of India, cannot override the provisions of the Rules promulgated under the provisions of the Act enacted by the Legislature and, accordingly, learned Sr. Counsel has also challenged promulgation of the subsequent Rules.
10. It is further submitted by learned Sr. Counsel that in any case, if there is any conflict between the provisions of Rule promulgated under the Proviso to Article 309 of the Constitution of India and the earlier Rules promulgated under the provision of the Act enacted by the Legislature, the Rule promulgated under provision of the Act shall prevail. In support of his contention learned Sr. Counsel has placed reliance upon decision of the Hon'ble Supreme Court of India in A.B. Krishna & Ors. Vs. State of Karnataka & Ors., reported in (1998) 3 SCC495wherein, the Law has been laid down as follows:-
“6. It is primarily the legislature, namely, Parliament or the State Legislative Assembly, in whom power to make law regulating the recruitment and conditions of service of persons appointed to public services and posts, in connection with the affairs of the Union or the State, is vested. the legislative field indicated in this article is the same as is indicated in Entry 71 of List I of the Seventh Schedule 6 W.P.(S) No. 3894 OF 2015 with W.P.(S) Nos. 3235 of 2014, 3139 of 2015, 3182 of 2015, 3242 of 2015 and 3563 of 2015 or Entry 41 of List II of that Schedule. The proviso, however, gives power to the President or the Governor to make Service Rules but this is only a transitional provision as the power under the proviso can be exercised only so long as the legislature does not make an Act whereby recruitment to public posts as also other conditions of service relating to that post are laid down.
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8. The Fire Services under the State Government were created and established under the Fire Force Act, 1964 made by the State Legislature. It was in exercise of the power conferred under Section 39 of the Act that the State Government made Service Rules regulating the conditions of the Fire Services. Since the Fire Services had been specially established under an Act of the legislature and the Govern- ment, in pursuance of the power conferred upon it under that Act, has already made Service Rules, any amendment in the Karnataka Civil Services (General Recruitment) Rules, 1977 would not affect the spe- cial provisions Validly made for the Fire Services. As a matter of fact, under the scheme of Article 309 of the Constitution, once a legislature intervenes to enact a law regulating the conditions of service, the power of the Executive, including the President or the Governor, as the case may be, is totally displaced on the principle of “doctrine of occupied field”. If, however, any matter is not touched by that enact- ment, it will be competent for the Executive to either issue executive instructions or to make a rule under Article 309 in respect of that mat- ter.
9. It is no doubt true that the rule-making authority under Arti- cle 309 of the Constitution and Section 39 of the Act is the same, namely, the Government (to be precise, the Governor, under Article 309 and the Government under Section 39), but the two jurisdictions are different. As has been seen above, power under Article 309 cannot be exercised by the Governor, if the legislature has already made a law and the field is occupied. In that situation, rules can be made un- der the law so made by the legislature and not under Article 309. It has also to be noticed that rules made in exercise of the rule-making power given under an Act constitute delegated or subordinate legisla- tion, but the rules under Article 309 cannot be treated to fall in that category and, therefore, on the principle of “occupied field”, the rules under Article 309 cannot supersede the rules made by the legislature." (Emphasis supplied).
10. Learned Sr. Counsel has further submitted that even if the 2014 Rules have been promulgated and notified to take effect from 02.07.2015, the vacan- cies which related to the period prior to promulgation of the 2014 Rules, shall be filled up only in accordance with the earlier 2002 Rules which provided 50% of the cadre strength to be filled up from amongst Dalpaties and 50% to be filled up through direct recruitment. In support of this contention, learned 7 W.P.(S) No. 3894 OF 2015 with W.P.(S) Nos. 3235 of 2014, 3139 of 2015, 3182 of 2015, 3242 of 2015 and 3563 of 2015 Sr. Counsel has placed reliance upon the decision of the Hon'ble Supreme Court of India in Arjun Singh Rathore & Ors. Vs. B.N. Chaturvedi & Ors., reported in (2007) 11 SCC605 wherein law has been laid down as under:-
“5. Mr. Calla, the learned Senior Counsel for the appellants has argued that the matter was fully covered by the judgment of this Court in State of Rajasthan v. R. Dayal wherein it had been held that the vacancies to be filled by promotion were to be filled under the rules which were in operation on the date when the vacancies had occurred. Relying on the referring to an earlier judgment in Y.V. Rangaiah v. J.
Sreenivasa Rao, it was opined as under (SCC p. 422, para-8).
“8. … … This Court has specifically laid (sic) that the vacancies which occurred prior to the amendment of the Rules would be governed by the original Rules and not by the amended Rules. Accordingly, this Court had held that the posts which fell vacant prior to the amendment of the Rules would be governed by the original Rules and not the amended Rules. As a necessary corollary, the vacancies that arose subsequent to the amendment of the Rules are required to be filled in in accordance with the law existing as on the date when the vacancies arose.”
6. The above legal position has not been seriously disputed by the learned counsel for Respondents 6 and 7. We are therefore of the opinion that the vacancies which had occurred prior to the enforcement of the Rules of 1998 had to be filled in under the Rules of 1988 and as per the procedure laid down therein. We are therefore of the opinion that the judgment of the learned Single Judge needs to be restored. We order accordingly.” (Emphasis supplied) It is submitted that same view has been taken by the Hon'ble Supreme Court in Kulwant Singh & Ors. Vs. Daya Ram & Ors., reported in (2015) 3 SCC177 11. Placing reliance on these decisions, learned Sr. Counsel submitted that as the vacancies had occurred prior to coming into force of 2014 Rules, those vacancies have to be filled up in accordance with 2002 Rules and accordingly, the impugned letters dated 06.07.2015, issued by the Director, Panchayati Raj, one of which has been brought on record as Annexure-6 in W.P.(S) No. 3139 of 2015, are fit to be quashed. Learned Sr. Counsel submitted that the selection process which has been initiated under the provisions of 2002 Rules, have to be completed in accordance with that Rule only.
12. Learned counsel for the State, on the other hand, has opposed the prayer and has drawn our attention towards Article 243-G of the Constitution of India 8 W.P.(S) No. 3894 OF 2015 with W.P.(S) Nos. 3235 of 2014, 3139 of 2015, 3182 of 2015, 3242 of 2015 and 3563 of 2015 read with Eleventh Schedule and has submitted that function of Panchayats in modern days have increased manifold, which now require even e-governance of the Panchayats in the present era. It has been further submitted by learned counsel for the State that looking into necessities of the present era, it became absolutely necessary for the State Government to frame 2015 Rules, according to which, qualifications have been prescribed taking into consideration the present needs for the post and all the vacancies have been prescribed to be filled up by direct recruitment only, so that well qualified, young and energetic persons are inducted as Panchayat Secretaries. Learned counsel for the State accordingly, submitted that framing of the new 2014 Rules is the need of the day. Learned counsel for the respondent State has also drawn our attention towards supplementary counter affidavit filed by the State of Jharkhand in W.P.(S) No. 3894 of 2015, wherein a tabulated form has been provided by the State respondents, detailing the working strength, source of appointment and the vacancies in the cadre of Panchayat Secretary in different districts. According to this chart, in some of the districts, the working strength of the Panchayat Secretaries, appointed from amongst the Dalpaties, is already in excess to their 50% quota. In some of the districts, the working strength of the Panchayat Secretaries, appointed from amongst the Dalpaties, is still below 50% quota. Learned counsel for the State submitted, that in any case, in the districts where the working strength of the Panchayat Secretaries, appointed from amongst the Dalpaties, is already in excess of 50% quota, the recommendations made by the District Level Selection Committee of such districts, cannot be considered and no appointment can be made in excess of 50% Dalpati quota. Learned counsel accordingly, submitted that no blanket order can be passed directing the State respondents to consider the appointment of all the petitioners whose names have been recommended by the District Level Selection Committee, even in excess of their 50% quota.
13. We find force in submission of learned counsel for the State that in any event appointment to the posts of Panchayat Secretary from amongst the Dalpaties cannot be made in any district in such a manner that it shall exceed 50% cadre strength of that particular district. However, at the same time we are of the considered view that the cases of those petitioners whose recommendations have been made by such District Level Selection Committees in accordance with 2002 Rules, where the working strength on the posts of Panchayat Secretary, of the persons appointed from amongst the Dalpaties, is 9 W.P.(S) No. 3894 OF 2015 with W.P.(S) Nos. 3235 of 2014, 3139 of 2015, 3182 of 2015, 3242 of 2015 and 3563 of 2015 still below 50% of the cadre, the cases of the petitioners belonging to such districts could not have been returned back by the Director, Panchayati Raj, making the blanket statement that since the new 2014 Rules have come in force, no appointment could be made in accordance with 2002 Rules.
14. We however, do not find any force in the submission of learned counsel for the State, that filling up 100% vacancies to the posts of Panchayat Secretary through direct recruitment, irrespective of the fact that the posts had fallen vacant prior to coming into force of 2014 Rules, is the need of the present era, in view of manifold increase in the responsibilities of Panchayat Secretaries, pursuant to Article 243-G of the Constitution of India read with Eleventh Schedule. Had this been so, there would not have been any occasion for the Principal Secretary of the Department to issue the letter No.1236 dated 22.04.2015, as contained Annexure-7 to W.P.(S). No.3139 of 2015, asking all the Deputy Commissioners in the State of Jharkhand, to identify the posts of Panchayat Secretary to be appointed from Dalpati quota also, and to make the recommendations for their appointment at an early date. Indeed this letter has been issued by the Principal Secretary of the Department much after the framing of the 2014 Rules, though the 2014 Rules had not only been notified by that date, but the Principal Secretary of the Department must be having the knowledge of framing of the new Rules.
15. We are of the considered view that cases of the petitioners, whose recommendations are well within 50% quota to be filled up from amongst the Dalpaties, are fully covered by the decision of the Apex Court in A.B. Krishna's case, Arjun Singh Rathore's case and Kulwant Singh's case (supra).
16. In view of the aforementioned discussions, the impugned letters dated 06.07.2015, issued by the Director, Panchayati Raj, one of which has been brought on record as Annexure-6 in W.P.(S) No. 3139 of 2015, are hereby, quashed. We hereby, direct the State respondents to fill-up 50% cadre posts of Panchayat Secretary in all those districts, in which the working strength of the Panchayat Secretaries appointed from amongst the Dalpaties, is still below 50% of the cadre strength, from amongst the qualified Dalpaties, in accordance with the provisions of 2002 Rules. For all practical purposes it shall be deemed that the recommendations made by the respective District Level Selection Committees, of the districts where the working strength of the Panchayat Secretaries appointed from amongst the Dalpaties, is still below 50% of the cadre strength, still survive for the consideration / approval by the Director, 10 W.P.(S) No. 3894 OF 2015 with W.P.(S) Nos. 3235 of 2014, 3139 of 2015, 3182 of 2015, 3242 of 2015 and 3563 of 2015 Panchayati Raj, State of Jharkhand. We direct the State Government to complete the exercise positively within the period of three months from today. Needless to say that the appointment of only those petitioners / candidates shall be considered, who otherwise are fully qualified for being appointed as Panchayat Secretary in accordance with 2002 Rules, and the exercise shall be carried out for all the districts in the State of Jharkhand, for filling up only the posts falling vacant prior to coming into force of 2014 Rules.
17. We make it clear that in view of the foregoing findings, we are not considering the alternative argument of learned Sr. Counsel for the petitioners, challenging the promulgation of the 2014 Rules.
18. All these writ applications are accordingly, disposed of with the directions as above. (H.C. Mishra, J.) (Dr. S.N. Pathak, J) nd Dated the 2 March, 2017 High Court of Jharkhand at Ranchi RC/PUNIT /A.F.R.