Judgment:
Sudhir Kumar Katriar, J.
1. This writ petition has been preferred with the prayer to quash letter No. 230, dated 18.1.2002 (Annexure-1), issued by the Rural Development Department, Government of Bihar, and the consequential order bearing Memo No. 83/Panchayat, dated 8.2.2002 (Annexure-1/A), issued by respondent No. 4 (The District Magistrate, Begusarai), whereby the petitioner has been informed that a Dalpati is not a Government servant.
2. According to the writ petition, the petitioner was appointed as a Dalpati of Mehada Shahpur Panchayat, Cheriya Bariyarpur Block, district- Begusarai, by order dated 11.4.1986 (Annexure-8). He continued as such till he was selected for training for the purpose of his selection as Panchayat Sewak, vide order bearing Memo No. 808/Panchayat, dated 6.10.1994 (Annexure-10). The petitioner has since superannuated as a Panchayat Sewak of the said Mehada Shahpur Panchayat. He preferred C.W.J.C. No. 10879 of 2000, praying therein to treat his services rendered as a Dalpati for the period 7.4.1986 to 6.11.1995, as a Government servant and may count for the purpose of post-retirement benefits. The same was disposed of by order dated 6.11.2000, whereby he was permitted to withdraw the writ petition with the liberty to file a fresh representation before the concerned authority to ventilate his grievances. His representation has been rejected by the impugned order wherein it is stated that a Dalpati is not a Government servant. Hence this writ petition.
3. While assailing the validity of the impugned order, learned Counsel for the petitioner submits that a Dalpati is holder of a civil post. He has taken me through the scheme of the Bihar Panchayat Raj Act 1947 (hereinafter referred to as 'the Act'), and the Bihar Panchayat Village Volunteer Force Rules 1949 (hereinafter referred to as 'the Rules'), in an effort to establish that the provisions of the same cumulatively show that a Dalpati is holder of a civil post. He relies on the judgment of the Supreme Court reported in : (1983)ILLJ284SC (State of Gujarat and Anr. v. Raman Lal Keshav Lal Soni and Ors.). He further submits that the powers, duties and functions conferred by the Act on a Dalpati are governmental functions. He has relied on the judgment of this Court reported in 1999 (3) P.L.J.R. 624 (Satya Narain Paswan v. The State of Bihar and Ors.).
4. The learned Additional Advocate General has also taken me through the scheme of the Act and Rules in an effort to establish that a Dalpati is not the holder of a civil post. He also relies on the judgment of the Supreme Court in State of Gujarat and Anr. v. Raman Lal Keshav Lal Soni and Ors. (supra). He further relied on the following judgments of the Supreme Court:
(i) : (2004)IIILLJ1SC [Dr. Gurjeewan Garewal (Mrs) v. Dr. Sumitra Dash (Mrs.) and Ors.];
(ii) : AIR1959AP506 (M. Yugandhra Rao v. The Government of Andhra and Anr.)
5. I have perused the materials on record and considered the submissions of learned Counsel for the parties. Section 6 of the Act provides that every Gram Panchayat is a body corporate, shall have perpetual succession and common seal, and shall sue and be sued by the same name. Section 6 is reproduced hereinbelow:
6. Incorporation of Gram Panchayat.- Every Gram Panchayat shall be a body corporate by the name specified in the notification under Sub-section (1) or Sub-section (3) of Section 3, and shall have perpetual succession and a common seal and shall, by the same name, sue and be sued, and shall, subject to the provisions of this Act, have power to acquire, hold, administer and transfer property, both movable and immovable, or accept a gift and to contract and do all other things necessary for the purposes of this Act.
5.1 In Dr. Gurjeewan Garewal (Mrs.) v. Dr. Sumitra Dash (Mrs.)(supra), respondent No. 1 was in the services of the Post Graduate Institute of Medical Education and Research, Chandigarh (hereinafter referred to as 'the Institute'), created under the Post Graduate Institute of Medical Education and Research, Chandigarh, Act, 1966 (hereinafter referred to as 'the PGIMER Act'), Section 4 of which states that the Institute is a 'body corporate which is having a perpetual succession and a common seal with power'. Respondent No. 1 was working with the Institute and was granted Ex-India (extraordinary leave) with effect from 16.12.1991 for a period of two years with conditions. During the course of her stay abroad, she worked as a consultant Haematologist at the Salmaniya Medical Centre, Bahrain, leading to departmental proceedings against her for violation of the terms and conditions of extraordinary leave. The Punjab and Haryana High Court allowed her writ petition by observing that the petitioner's duty to join duty ought not to have been declined without giving her an opportunity of hearing to put forward her case. While allowing the Institute's appeal, the Supreme Court observed that it was free to proceed against the petitioner as its employee but not as holder of a civil post and, therefore, the provisions of Article 311 of the Constitution of India were not attracted. In view of the provisions of Section 4 of the Chandigarh Act, it was held that the Institute, with perpetual succession and common seal with power, is a body corporate and is a separate legal entity, and there was no relationship of master and servant between the petitioner and the State. Paragraph 14 of the judgment is relevant in the present context and is set out hereinbelow for the facility of quick reference:
14. Reverting back to the case in hand, Section 4 of the Post Graduate Institute of Medical Education and Research, Chandigarh Act, 1966 (PGIMER Act) says that PGIMER is a 'body corporate which is having a perpetual succession and a common seal with power'. This clearly provides that PGIMER is a separate entity in itself. Admittedly, the employees of any authority which is a legal entity separate from the State, cannot claim to be holders of civil posts under the State in order to attract the protection of Article 311. There is also no master and servant relationship between the State and an employee of PGIMER, which is a separate legal entity in itself. It is a settled position that a person cannot be said to have the status of holding a 'civil post' under the State merely because his salary is paid from the State fund or that the State exercises a certain amount of control over the post. The PGIMER Act might have provided for some control over the institution but this doesn't mean that the same is a State for the purpose of Article 311. Therefore, the employees of PGIMER cannot avail the protection of Article 311 since the same can be claimed only by the members of a civil service of the Union or of all-India service or of a civil service of a State or by persons who hold a civil post under the Union or a State. PGIMER cannot be treated as a 'State' for the purpose of Article 311 and the employees therein are not holding any 'civil post'. In result, the 1st respondent is not holding a 'civil post' and she cannot claim the guard of Article 311.
5.2 I am thus of the view that every Panchayat under the Act is a body corporate with perpetual succession and common seal, and the Dalpati cannot be treated as holder of a civil post. There is no relationship of master and servant between a Dalpati and the State under the Act.
6. This concludes matters. However, in view of the elaborate submissions advanced by learned Counsel for the parties, I would briefly discuss the remaining submissions. Both sides have relied on the judgment of the State of Gujarat v. Raman Lal (supra). Paragraph 27 of the judgment appears to me to be relevant as indicative of the major factors relevant to determine whether or not a person is holder of a civil post and is a Government servant, and is reproduced hereinbelow for the facility of quick reference:
27. We have to first consider the question whether the members of the Gujarat Panchayat Service are government servants. Earlier we have already said enough to indicate our view that they are government servants. We do not propose and indeed it is neither politic nor possible to lay down any definitive test to determine when a person may be said to hold a civil post under the Government. Several factors may indicate the relationship of master and servant. None may be conclusive. On the other hand, no single factor may be considered absolutely essential. The presence of all or some of the factors, such as, the right to select for appointment, the right to appoint, the right to terminate the employment, the right to take other disciplinary action, the right to prescribe the conditions of service, the nature of the duties performed by the employee, the right to control the employee's manner and method of the work, the right to issue directions and the right to determine and the source from which wages or salary are paid and a host of such circumstances, may have to be considered to determine the existence of the relationship of master and servant. In each case, it is a question of fact whether a person is a servant of the State or not. Amongst the cases cited before us were Gurugobinda Basu v. Sankari Prasad Ghosal, State of U.P. v. Audh Narain Singh; State of Assam v. Kanak Chandra Dutta; D.R. Gurushantappa v. Abdul Khuddus Anwar; S.L. Agarwal v. G.M. Hindustan Steel Ltd. and Jalgaon Zilla Parishad v. Duman Gobind. We have considered all of them and do not consider it necessary to refer to each of the cases.
7. In the scheme of the Act, there is no cadre of Dalpatis. Dalpati appears to be the head of a large body of all the able bodied persons between the age of 19 years to 30 years of the Panchayat without exception. He is not entitled to a scale of pay, and is given a fixed allowance (honorarium) per month. Neither the Dalpati has supervisory control over the members of the force, nor is he himself under the disciplinary jurisdiction of the State Government. The fact that a fine of Rs. 50/- can be inflicted on a Dalpati or a member of force in terms of Rule 18 by the Panchayat does not measure upto a disciplinary proceeding.
8. Learned Counsel for the petitioner has laid considerable emphasis on some of the provisions of the Rules which, in his submission, tend to establish that the control and supervision of the Government on Dalpatis is complete. For example, Rule 4 provides that he has to be appointed with the approval of the District Panchayat Officer, in terms of Rule 5 the course has to be determined, training has to be under an officer of, and the cost has to be borne by the Government. It is also submitted that the functions assigned to the Dalpati are ancillary to police functions. In my view, these are cumulatively inadequate to afford him the status of a Government servant. Some duties have been assigned to him, and he helps and supports the civil administration, in taking care of the local issues. I am unable to locate any power vested in the State Government to terminate the engagement of Dalpati, nor are there any prescribed conditions of service. It thus appears to me that the major indices to determine a civil post, and to determine the relationship of master and servant between the Dalpati and the State Government, is absent in the scheme of the Act and the Rules.
9. The judgment in State of Gujarat v. Raman Lal (Supra), dealt with fundamentally different issues and is inapplicable to the facts and circumstances of the case. The Gujaraj Act has set up a Panchayat Service which is wholly absent in the Bihar Act. The question for consideration was, whether or not the ex-municipal employees who had gone on deputation to the Panchayat had ceased to be Government servant or not, in a situation where the State Government's employees had been similarly sent on deputation to the Panchayat and had retained the status of Government servant. Examining the entire scheme of the Act, and in view of the position that the Panchayat Service comprised of persons drawn from different sources, the Supreme Court held that it would be discriminatory if ex-municipal employees were left out. On the other hand, in the present case, there is no panchayat service constituted under the Act, much less a Dalpati being part of the same. There is no cadre constituted to include them, nor does the problem arise in the present case for adjudication which had arisen in State of Gujarat v. Raman Lal's case (supra).
10. On a thoughtful consideration of the matter, I am of the view that a Dalpati is not holder of a civil post, and there is no relationship of master and servant between him and the State Government.
11. In the result, the writ petition is dismissed. There shall, however, be no order as to costs.