As part of Division Bench Justice S. B. Pd. Singh sets aside judgment, decree by Principal Judge, Family Court, Gopalganj

"The essential ingredients in an offence of adultery are that: (i) There should be an act of sexual intercourse outside the marriage, and (ii) that such intercourse should be voluntary."

In Kiran Devi vs. Akhilesh Mishra & Anr. (2025), a miscellaneous appeal, Patna High Court's Division Bench of Acting Chief Justice P. B. Bajanthri and Justice S. B. Pd. Singh passed a 17-page long judgement dated September 1, 2025 setting aside the judgment and decree dated February 25, 2019 passed by the Principal Judge, Family Court, Gopalganj in M.M. Case No. 176 of 2011 M.M. Case No. 176 of 2011 stands and dismissed the case. The judgement was authored by Justice Singh. 

The appeal was filed under Section 19(1) of the Family Court Act, 1984 impugning the judgment and decree dated February 25, 2019 passed by Principal Judge, Family Court, Gopalganj, whereby the matrimonial suit, preferred by Akhilesh Mishra, the respondent No. 1, for a decree of divorce, on dissolution of marriage, was allowed subject to payment of Rs. 2,50,000/- as permanent alimony for life support of the appellant. The case of the respondent No. 1 as per petition filed before the Family Court was that the marriage of the appellant was solemnized with respondent No.1 in the month of May, 2005 as per the Hindu Rites and Custom. After the marriage, the appellant came to her matrimonial house and stayed there for few months and thereafter, she went to her parents’ house and stayed there for a year. The respondent-husband and his father made several attempts to take the appellant to her matrimonial house, but all the efforts went in vein. At last in June, 2006 the respondent No. 1 went to his Sasural along with some relatives on promise of his father-in-law and brother-in-law to sent the appellant with him but she did not come with the respondent No. 1. Subsequently, the respondent-husband came to know that appellant has illicit relationship with Ashok Sharma, the respondent No. 2 who often used to visit the house of the appellant. The respondent-husband also came to know that appellant was pregnant and a female child was born who died just after the birth. The respondent-husband made several attempts to reconcile the matter with the appellant but all his efforts went in vein. The appellant, thereafter filed complaint case in 2009 against the respondent-husband and other family members which was registered as Bhore P.S. case of 2010 under Sections 498(A), 406, 34 of the Indian Penal Code. In the this case, the respondent-husband and his father were rotting in jail for 6-7 months and ultimately after some time, on the intervention of relatives, a compromise was filed in the said case and appellant came to her Sasural but after sometime, the appellant went away from her Sasural with respondent No. 2. The respondent-husband also alleged that appellant and respondent-husband never cohabited since their marriage and appellant had completely deserted the matrimonial life of the respondent-husband. The respondent-husband, therefore, prayed that the marriage between the appellant and respondent No. 1 be declared dissolved and a decree of divorce be passed in his favour. 

In response to the summon/notice issued by the Court, appellant/O.P No. 1 appeared and filed her reply/written statement. In her written statement/reply, the respondent No. 1 had stated all the allegations levelled by the appellant against her is false, concocted and without any basis. She also stated that after the marriage in the year 2005, she went to the house of respondent-husband and started living in her matrimonial house but after sometimes, her in-laws family members started demanding dowry and torture
was inflicted for non-fulfillment of dowry demand. The appellant, in the meanwhile, conceived and a female child was born who died after birth. Thereafter, the respondent- husband and other family members started pressurizing the appellant for motorcycle and colour T.V. and ultimately, on April 20, 2009 they badly assaulted and ousted her from the matrimonial house. The father of the appellant and other relatives made several attempts and requested the respondent-husband and other in-laws to keep her at her matrimonial house but they denied to keep her at her matrimonial house. The appellant, thereafter filed Complaint Case No. 2761 of 2009 against the respondent-husband and other family members which was registered as Bhore P.S. Case No. 2 of 2010 under Sections 498(A), 406, 34 of the Indian Penal Code. The respondent-husband, thereafter filed a divorce case in 2009. In this case, a compromise took place and the respondent-husband was directed to keep the appellant with full dignity and honour. The appellant went to her matrimonial house and started living there but in the meantime, the respondent-husband got a job in Dubai and again appellant was tortured for demand of dowry. The respondent-husband again filed a divorce case in 2011 on the same very facts.

The issues which were framed by the Trial Court are:-
1. Whether the case as framed is maintainable?
2. Whether the appellant has cause of action to file this case?
4. Whether the applicant is entitled to get decree for dissolution of marriage against the O.P ?
5. Whether the petitioner is entitled to any other relief or reliefs?

The High Court considered the following points for determination in this appeal:-
(i) Whether the appellant is entitled to the relief sought for in his petition/appeal.
(ii) Whether the impugned judgment of Principal Judge, Family Court, Patna is just, proper and sustainable/tenable in the eyes of law.

Justice Singh observed:"we find that respondent-husband has deposed in his evidence that appellant-wife always used to make quarrel with him and his family members but no any specific instance of date has been mentioned in the plaint as well as in his evidence. He has also admitted in his evidence that prior to filing of this divorce case, there were no relationship between the appellant and respondent No. 1. The respondent-husband has also not brought on record any proof regarding illicit relationship of appellant with respondent No. 2. The respondent-husband has also not brought on record any cogent and reliable evidence which could show that appellant and respondent No. 2 are living in adultery. The respondent-husband has also not filed petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights which would reflect that he was interested to resume conjugal life with the appellant. The respondent-husband has also not explained as to why he has filed second divorce petition with same allegation as records show that before filing of the present divorce petition, the respondent-husband has also filed M.M Case No. 62 of 2009 which was compromised. So far as allegation of adultery is concerned, the record clearly suggests that only in order to make a legal ground in the divorce case, these baseless allegations have been levelled by the respondent-husband."

The High Court in relied on Supreme Court's decision in Samar Ghose vs. Jaya Ghose reported in 2007 (4) SCC 511 that a sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. More trivial irritations, quarrel, normal wear and tear of the married live which happens in day-to-day live would not be adequate for grant of divorce on the ground of mental cruelty.

It referred to the Supreme Court's decision in case of Narain Ganesh Dastane vs. Sucheta Naraih Dastane reported in, AIR 1975, SC, 1534. The relevant paragraph reads: 
"One other matter which needs to be clarified is that though under Section 10(1) (b), the apprehension of the petitioner that it will be harmful or injurious to live with the other party has to be reasonable, it is wrong, except in the context of such apprehension, to import the concept of a reasonable man as known to the law of negligence of judging of matrimonial relations. Spouses are undoubtedly supposed and expected to conduct their joint venture as best as they might but it is no function of a court inquring into a charge of cruelty to philosophise on the modalities of married life. Some one may want to keep late hours of finish the day's work and some one may want to get up early for a morning round of golf. The court cannot apply to the habits or hobbies of these the test whether a reasonable man situated similarly will behave in a similar fashion. 'The question whether the misconduct complained of constitutes cruelty and the like for divorce purposes is determined primarily by its effect upon the particular person complaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse. That which may be cruel to one person may be laughed off by another, and what may not be cruel to an Individual under one set of circumstances may be extreme cruelty under another set of circumstances". The Court has to deal, not with an ideal husband and ideal wife (assuming any such exist) but with the particular man and woman before it. The ideal couple or a near-ideal one will probably have no occasion to go to a matrimonial court for, even if they may not be able to draw their differences, their ideal attitudes may help them overlook or gloss over mutual faults and failures."

Justice Singh observed:"....it is crystal clear that respondent-husband has failed to prove the cruel behaviour of the appellant towards him and his family members by the strength of cogent, relevant and reliable evidence, while burden of proof of cruelty rests upon the respondent-husband. Not even single incident with reference to specific date of alleged cruelty has been urged in the plaint before the Family Court. Moreover, wife (appellant) is still ready to live with the respondent-husband. Furthermore, alleged certain flimsy act or omission or using some threatening and harsh words may occasionally happen in the day-to-day conjugal life of a husband and wife to retaliate the other spouse but that cannot be a justified/sustainable ground for taking divorce. Some trifling utterance or remarks or mere threatening of one spouse to other cannot be construed as such decree of cruelty, which is legally required to a decree of divorce. The austerity of temper and behaviour, petulance of manner and harshness of language may vary from man to man born and brought up in different family background, living in different standard of life, having their quality of educational qualification and their status in society in which they live. 23. Thus, considering the above entire aspects of this case and evidence adduced on behalf of both the parties, we find that respondent-husband has failed to prove the allegation of cruelty, much less, the decree of cruel behaviour of appellant which is legally required for grant of decree of divorce under section 13(1) (ia) of the Hindu Marriage Act." 

The High Court's judgement reads: "24. So far as ground of adultery is concerned, adultery may be defined as the act of a married person having sexual intercourse with a person of opposite gender other than the wife or husband of the person. Under the present Hindu Marriage Act, adultery is laid down as one of the grounds for divorce or judicial separation.....26. The respondent-husband has not brought on record any proof to show that appellant was having illicit relationship with the respondent No. 2 nor he has proved that they were living in adultery and only in order to make a valid ground in the divorce petition, these allegations were levelled against the appellant without any supporting material evidence.

Supreme Court sets aside order by Justice Prabhat Kumar Singh in a case of murder, criminal conspiracy, disappearance of evidence case

In Vishal Kumar @ Vishal Singh vs. The State of Bihar (2025), Supreme Court's Division Bench of Justices Aravind Kumar and N.V. Anjaria passed a 4-page order dated August 26, 2025, wherein, it set aside the impugned order dated February 28, 2025 by Justice Prabhat Kumar Singh of Patna High Court and granted anticipatory bail in a murder case. 

The appellant who has been arraigned as accused in connection with FIR No.437/2023 dated October 19, 2023 registered for the offence punishable under Sections 302, 201 and 120B of Indian Penal Code, (IPC) is seeking anticipatory bail. The gist of the prosecution case is that on October 1, 2022 the complainant’s five year old son who was playing in front of the house had been killed by accused person(s) and in the mele the complainant and his wife were also injured. Though the incident occurred on October 1. 2022, the complaint came to be lodged before the jurisdictional court on August 31, 2023 which resulted in registration of the FIR on October 19, 2023. It was not in dispute that there was no post-mortem carried out. As to the complicity of the appellant in the death of the complainant’s son, was an issue which was required to be examined after the prosecution witnesses were examined, namely, as to the actual role played by the appellant, if any.

Section 201 of IPC reads:"Causing disappearance of evidence of offence, or giving false information to screen offender.—Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false, if a capital offence.—shall, if the offence which he knows or believes to have been committed is punishable with death be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; if punishable with imprisonment for life.—and if the offence is punishable with 1[imprisonment for life], or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; if punishable with less than ten years’ imprisonment.—and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both." 

Section 120B of IPC reads: "Punishment of criminal conspiracy.—(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 1[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.]" 

The Supreme Court observed:"....any examination of the material gathered during the course of investigation by evaluating the same by this court at this stage, would affect the trial. Hence, we do not propose to go into those aspects at this stage and in the peculiar facts and circumstances of the case, we are of the considered view that appellant deserves to be enlarged on bail.  6. Hence, the appeal stands allowed by setting aside the impugned order dated 28.02.2025 and appellant is directed to be enlarged on anticipatory bail." 

In Vishal Kumar @ Vishal Singh vs. The State of Bihar (2025), Justice Singh had passed an order dated February 28, 2025, which reads: "Considering the nature of accusation and other circumstances of the case , prayer for pre – arrest bail of the petitioner is hereby rejected." The petitioner had apprehended his arrest in a case registered for the offence punishable under sections 302, 201 and 120B of the Indian Penal Code (IPC). The prosecution's case is that on the alleged date and time occurrence, while the informant and her five years old son were playing in front of their house, in the meanwhile, all the accused persons including the petitioner came there and co-accused Priyanshu Kumar and the petitioner assaulted son of informant as a result of which he died. It was submitted on behalf of the petitioner that the petitioner was innocent and had committed no offence. 

On August 18, 2023 one Kunkun Singh, Murari Singh and Niwas Singh came to the house of petitioner and made fire upon Vishal Kumar, the petitioner and his wife due to which they sustained fire arm injury and were taken to Patna medical College Hospital for treatment and thereafter, on August 19, 2023, Khaira PS case of 2023 was lodged by the petitioner against accused persons of the case in which one Mithilesh Singh alias Kunkum Singh was arrested and only in retaliation wife of Mithilesh Singh alias Kunkun Singh lodged the case against petitioner. The counsel for the State and the informant opposed the bail petition and submitted that petitioner was named in the F.I.R., with specific accusation that the petitioner along with other co-accused persons assaulted son of informant as a result of which he died.

Supreme Court reverses Justice Dr. Anshuman's bail rejection order in a NDPS case

In Satyam Kumar Singh vs. The State of Bihar (2025), Supreme Court's Division Bench of Justices Prashant Kumar Mishra and Joymalya Bagchi passed a 2-page long order dated August 28, 2025. The order reads: "Considering that the petitioners are in jail since 03.03.2021 i.e. for nearly four and a half year, we are of the view that the petitioners deserve to be released on bail. Accordingly, the petitioners shall be enlarged on bail subject to such conditions and restrictions as imposed by the jurisdictional Trial Court."

Earlier, Dr. Anshuman of Patna High Court had passed a 4-page long order dated February 2, 2025 in Satyam Kumar Singh & Ors. vs. The State of Bihar (2025). The petitioners had approached the High Court seeking regular bail in connection with a P.S. case  of 2021 lodged under Sections 8, 21, 22(B)(C) N.D.P.S. Act. The counsel for the petitioners of first two cases i.e.,. Cr. Misc. No.72426 of 2024 and Cr. Misc. No.71160 of 2024 had submitted that the bail application of the petitioners has earlier been rejected twice vide order dated 27.09.2022 passed in Cr. Misc. No.49865 of 2021 and vide order dated March 20, 2024 passed in Cr. Misc. No.79114 of 2023. He also further submitted that the petitioners were innocent and other named co-accused persons were granted bail on the basis of same allegation. The petitioners were apprehended from the place of occurrence. He further submitted that petitioners were in custody since March 3, 2021 had clean antecedent. The counsel for the petitioner for third case i.e.,Cr. Misc. No.79563 of 2024 submitted that the petitioner was named in the F.I.R., but he was not apprehended from the place of occurrence nor any material was recovered from his possession. The Senior Counsel submitted that the name of petitioner had come by virtue of confessional statement of co-accused who were apprehended from the place of occurrence. It stated that the Co-ordinate Bench of the High Court had granted bail to other co-accused persons, who were not apprehended nor any recovery has been made from their possession. He also submitted that petitioner was in custody since August 28, 2024 had clean antecedent.

Justice Anshuman observed:"11. In the present facts and circumstances of this case and the submissions made above, this Court is not inclined to grant bail to the petitioners, namely, Satyam Kumar Singh and Amit Kumar@ Jaikar of first two cases. Therefore, the bail applications of the petitioners are hereby rejected." This order has been reversed by the Supreme Court. 

Justice Dr. Anshuman had heard the case of Satyam Kumar Singh & Ors. vs. The State of Bihar (2025) along with the case Amit Kumar @ Jaikar vs. The State of Bihar (2025) and Anant Sah @ Anant Kumar @ Anant Kumar Sah vs. The State of Bihar (2025). In his order, Justice Anshuman added: "the bail application of the petitioner, namely, Anant Sah of third case is concerned, let the petitioner be granted bail on furnishing bail bonds of Rs.30,000/- (Rupees Thirty thousand) with two sureties of the like amount each....". It was required to be furnished to Additional Sessions Judge-IV-cum-Special Judge, N.D.P.S. Act., Purnea in connection with Supplementary N.D.P.S. Case of 2021(CIS No.121 of 2024) which arose out of P.S. case  of 2021, subject to the conditions as laid down under Section 437(3) of Cr.P.C. 

Justice Bajanthri led bench directs both parties to peruse latest Supreme Court decisions on permanent alimony

In Nisha @ Nisha Om Prakash Yadav vs. Manish Sinha (2025), Patna High Court's Division Bench of Justices P. B. Bajanthri and Shailendra Singh passed a 2-page long order dated August 25, 2025 The Appellant-Nisha @Nisha Om Prakash Yadav gave a proposal of permanent alimony for a sum of Rs. 50,00,000/- (Rupees Fifty Lakh) and the residential premises (Flat No. A-603, Suresh Smruti, Prathamesh Complex, Veera Desai Road, Andheri West, Mumbai- 400053, Maharashtra) where she and her son are living, should be transferred in the name of her son. In this regard, Respondent - Manish Sinha, was directed to submit his stand in writing insofar as furnishing counter proposal, if any. 

Justice Bajanthri observed:"In order to give quietus to the litigation among the respective parties, both the parties are educated, therefore, they are requested to peruse the latest Supreme Court decisions in the case of Rajnesh vs. Neha reported in (2021) 2 SCC 324 read with Aditi alias Mithi vs. Jitesh Sharma reported in (2023) SCC Online SC 1451 read with Pravin Kumar Jain vs. Anju Jain reported in 2024 SCC OnLine 3678 (in Para 32) it relates to eight factors which are required to be determined for the purpose of determination of permanent alimony. Both the parties are requested to peruse the eight factors and determine tentatively and draw an inference what would be the permanent alimony other than the proposal of permanent alimony offered by the Appellant-Nisha @ Nisha Om Prakash Yadav and apprise." The matter is listed for further hearing on September 22, 2025.

Justice Bajanthri led bench gave similar 2-page long order dated August 25, 2025 in Manisha Kumari vs. Harendra Tiwary (2025). 

Disputed issues cannot be adjudicated under Article 226: Patna High Court

In Pushpa Devi & Ors. vs. The State of Bihar through the Chief Secretary, Government of Bihar & Ors. (2025), Patna High Court's Division Bench of Justices P. B. Bajanthri and Shailendra Singh passed a 3-page long order dated August 27, 2025 upholding the order by Justice Chakradhari Sharan Singh.  

The appellants had assailed the 2-page long order dated April 17, 2019 by Justice Singh, the Single Judge passed in Pushpa Devi & Ors. vs. The State of Bihar through the Chief Secretary, Government of Bihar & Ors. (2019). The order stated that the petitioners "purchased certain property from Respondent No. 5 and Respondent No. 5, after having sold the property, is not handing over the possession. Such grievance of the petitioners, in a proceeding under Article 226 of the Constitution of India, cannot be entertained. This application is dismissed. The petitioners may approach appropriate forum for redressal of their grievance.” The Respondent No. 5 is Shanti Devi, a resident of Sikariya, Shivsagar, Rohtas. The petitioners, namely, Pushpa Devi, Sunita Devi, Vijapatti Devi, Bali Ram Singh and Sarita Devi. The case was filed in the High Court on March 1, 2019 and registered on April 16, 2019. 

Justice Bajanthri observed: "it is evident that there was certain disputed issues among the appellants and contesting respondents, insofar as transaction of property. 4. Disputed issues cannot be adjudicated under Article 226 of the Constitution as held by the Hon’ble Supreme Court in the case of Shubhas Jain vs. Rajeshwari Shivam and Others reported in (2021) 20 SCC 454. In the light of these facts and circumstances no interference is warranted in respect of order of the learned Single Judge dated 17.04.2019 passed in CWJC No. 8225 of 2019. 5. Accordingly, present LPA No. 1096 of 2019 stands disposed of reserving liberty to the appellants to invoke appropriate remedy before appropriate forum. In the event of filing of appropriate litigation before the concerned jurisdictional forum, jurisdictional forum is requested to peruse Section 14 of the Limitation Act, 1963 and proceed to condone the delay in respect of time spent before this Court." He endorsed the order by Justice Singh. 

 

Vaishali Police directed to release vehicle because petitioner's role under offences of Excise Act is not forthcoming: Justice P. B. Bajanthri

In Pradyumn Kumar vs. The State of Bihar through the Principle Secretary, Registration, Excise and Prohibition Department, Government of Bihar & Ors. (2025), Patna High Court's Division Bench of Justices P. B. Bajanthri and Shailendra Singh passed a 2-apge long order which reads: "Therefore, the Superintendent of Police, Vaishali is hereby directed the release the subject matter of vehicle within a period of two days" because prima facie petitioner's role under the offences of Excise Act is not forthcoming. The subject matter of vehicle was under the custody of the Superintendent of Police, Vaishali and he was not arrayed as necessary and proper party. 

Justice Bajanthri observed: "Be that as it may, in all certainty the Superintendent of Police, Saran should have communicated the orders of this Court dated 12.08.2025 insofar as releasing the subject matter of vehicle on the admitted fact that the subject matter of vehicle was involved for the offences under theft read with the vehicle was involved for the offences under Excise Act on misuse of the vehicle by some miscreants...."

In his earlier 1-page long order dated August 12, 2025, Justice Bajanthri observed:"The Superintendent of Police, Saran, is hereby directed to verify whether the subject matter of the vehicle was seized in connection with the offence under Section 379 of the Indian Penal Code (for theft of vehicle) followed by theft vehicle was involved for the offences under the Excise Act and F.I.R. Registered on 24.12.2024. If these facts are genuine, in that event, the Superintendent of Police, Saran, is hereby directed to release the subject matter of vehicle in favour of the petitioner after due verification of records of the vehicle within a period of one week from today." The petition was filed in the High Court on July 17, 2025 and registered on July 31, 2025. 

Patna High Court refused to interfere with Cabinet resolution, Planning department's order in Accredited Statistical Volunteers case

In Shambhu Kumar vs. The State of Bihar through Chief Secretary & Ors. (2017), Justice Jyoti Saran passed in a 717-page long judgement dated January 24, 2017, wherein, he concluded: "I am not persuaded to either interfere with the Cabinet resolution or with the order of the Planning department issued thereunder, a copy of which has been  placed on record vide Annexure C‘ to the counter affidavit filed in CWJC No.11550 of 2016 but with a rider that in case the State would be in need of the services of the Accredited Statistical Volunteers then the claim of these petitioners may be considered for such engagement considering the experience gained and the training undergone by these petitioners over the period of time and even if the State would decide to look for fresh aspirants, due weightage be given to the case of these petitioners including age relaxation. The writ petitions are accordingly disposed of."  

The Shambhu Kumar case was heard along with 73 + 200 + 5+ 15 + 7 + 8 + 7+ 11+ 5+ 37 + 200 + 58 + 200 + 200+ 200 + 27 + 434 + 341 + 253+ 316 + 464 + 350 + 64 + 52 + 200 + 6+ 21+ 200 + 24 + 3 + 15 + 21 + 6 + 13 + 9 + 57 + 353 + 10 + 309 +  228 + 25 + 299 + 11 + 242 + 100 + 88 + 92 + 15 + 58 + 18 + 200 + 201 + 16 + 23 + 302 + 101 + 144 + 60 + 58 + 93 + 79 + 128 + 82 + 4 + 201 + 60 + 22 + 90 + 49 + 200 + 200 + 24 + 54 + 44 + 59 + 61 + 44 + 23 + 1 + 134 + 100 + 18 + 4 + 15 + 87 + 31 +6 + 5 + 7 + 8 + 101 + 7 + 62 + 45 + 152 + 200 + 31 + 101 + 23 + 28 + 125 + 94 + 166 + 12 + 24 + 119 + 82 + 13 + 57 + 32 + 22 + 20 + 4 + 5 + 39 + 7 + 5 + 12 + 9 + 12+ 33 + 4 + 89 + 6 + 7 + 5 + 56 + 30 + 300 + 100 + 5 + 4 + 193 + 27 + 7 + 24 + 46 + 34 + 56 + 111 + 48 + 55 + 29 + 1 + 6 + 29 +15 + 6 + 93 + 1 + 31 + 31 + 1 + 24 + 45 + 8 + 5 + 1 = 1 + 65 +  20 + 22 + 24 + 226 + 114 + 4 + 16 + 92 + 11 + 78 + 37 + 20 + 3 + 20 + 4 + 5 + 8 + 5 + 1 + 5 + 24 + 16 + 5 + 18 + 23 + 10 + 5 + 32+ 2 + 55 + 109 + 5 + 162 + 125 + 350 petitioners.  The petitioners in this batch of writ petitions had questioned the decision taken in the meeting of the Cabinet held on June 7, 2016 in so far as it approved the Agenda No.4 relatable to cancellation of the panel of the Accredited Statistical Volunteers (ASV) prepared following the advertisement published under the authority of the Planning and Development Department of the Government of Bihar in its Directorate of Economics and Statistics dated February 12, 2012. The Cabinet decision so taken was translated in the notification of the State Government bearing Memo No.1459 dated 26.7.2016, whereby the panel of the ASVs‘ has been cancelled with immediate effect.

Since each of the writ petition was for the same cause of action and since it was the same Cabinet decision and the order of the State Government which was put to challenge in each of the writ petitions, hence with the consent of the parties, the matters was heard analogous with the purpose of final disposal. 

 

There was an admitted empanelment of more than 60,000 ASVs‘ across the State but the work requirement shows that whereas 1604 ASVs‘ were engaged for 20 days in the year 2012, 6171 ASVs‘ were engaged for 50 days in the year 2013 and 7198 ASVs‘ were engaged in 2014 for 50 days. Following
the second advertisement under the 6th Economic Census, of the 61506 candidates engaged, only 42961 worked for 30 days in the census work in the year 2013 that 468 ASVs‘ were engaged for 15 days in 2014. The details so given are not contested and which by itself reflects the nature of engagement of these ASVs‘. In the nature of engagement of the ASVs‘, the issue was whether the petitioners had a right, either for continuity of the panel or for regularisation. Justice Saran observed: "In my opinion, the issue has to be answered in the negative. The petitioners have not been appointed against any sanctioned post nor they have been paid any salary for their engagement and the engagement during this period of three years at best makes it to 50 days in a year. The petitioners also cannot insist on maintaining the panel or its continuity for it would strike at the root of Article 14 of the Constitution of India depriving the others who may have become eligible for consideration."  He added: "The legal position is well settled and a mere empanelment gives no right to the incumbent to seek permanency against the post. The case of the petitioners is on even worse pedestal because they have not been appointed against any post rather they have simply been empanelled for discharging certain work as per the requirement. Regularisation is a concept attached to a post existing within a cadre and the foundation rests on a continuity of engagement. In the present case neither the engagement has been made against any post nor is it against a salary nor there is a continuity of work. All the three pre-requisites to a plea for regularisation is manifestly absent in the present case. May be, the empanelment of the petitioners as ASVs‘, provided them with some kind of status but it did not invest them with any right for seeking creation of a post of the like or for seeking permanency on any other vacancy available in the department. The other issue of arbitrariness raised by the petitioners for questioning the policy decision of the State to scrap the panel, even though attractive on the proposition advanced but does not stand the test calling for any intervention."

 

The petitioner's counsel had submitted that even if the nature of engagement was contractual, yet its termination was required to be supported with reasons and cannot be done in a whimsical and arbitrary manner. He made reference to the following judgments in support of his submissions:
(1) (2008) 1 SCC 448 (Director SCTI for Medical Science and Technology vs. M. Pushkaran). With reference to the opinion present at paragraphs 12 to 18, the counsel submitted that once a panel has been prepared it cannot be ignored nor can be cancelled on whimsical decision and in absence of good reasons.
(2) (2013) 14 SCC 65 (Nihal Singh vs. State of Punjab). With reference to paragraphs 32 to 36 of the judgment it was submitted that while it is undisputed that it is the sovereign function of every Government to create public posts but an exception is present at paragraph 33 of the judgment where the Supreme Court has held that the jurisdiction of the Constitutional Courts to examine any such decision is not barred.
(3) 2012 (1) PLJR (SC) 321 (GRIDCO Limited vs. Sri Sadanand Doloi). The counselreferred to the facts of the case discussed in paragraph 3 of the judgment to submit that an issue as regarding the scope of judicial review of contractual appointment came in for consideration before the Supreme Court and it was held at paragraph 26 of the judgment that a Writ Court is fully entitled to a judicial review of such actions if it was founded on illegality, perversity, unreasonableness, unfairness and irrationality.
(4) (2008) 14 SCC 58 (Ramesh Chandra Sankla vs. Vikram Cement). The counsel referred to paragraph 90 to 98 of the judgment to impress upon the Court as regarding the exercise of jurisdiction under Articles 226 and 227 of the Constitution of India in the larger interest of justice.
(5) 2014 (1) PLJR (SC) 321 (State of Jharkhand vs. Harihar Yadav). The counsel referred to paragraphs 14 and 22 to 24 of the judgment to submit that in the present context an issue of social justice also becomes a relevant factor for assessment of the relative rights and which is also a factor in course of administration of justice. 

(6) (2009) 8 SCC 556 (Maharashtra State Road Transport Corporation vs. Casteribe Rajya Parivahan Karmchari Sanghatana). On the opinion expressed in paragraphs 11, 39 and 44 to 48, the counsel submitted that the issue of unfair labour practices was examined by the Supreme Court and while taking note of the opinion earlier expressed in the case of Indian Drugs and Pharmaceuticals Ltd Vs. Workmen since reported in (2007) 1 SCC 408, the concept of need-based employment has been approved. He submits that the issue of employment and the objections as to the contractual nature of appointment have been taken note of and rejected and the opinion of the Labour Court to grant relief to the Workmen in the background that their
services were yet required, stood confirmed.
(7) (2007) 1 SCC 408 (Indian Drugs and Pharmaceuticals Ltd. Vs. Workmen). The counsel submitted with reference to paragraph 4 and paragraphs 32 to 40 that while there is no dispute on the legal position that the Courts would not exercise its discretion which would result in creation of posts or in causing financial burden on the exchequer, he submits that the case of the petitioners is distinguishable because whereas in the present case these petitioners have been empanelled after undergoing a selection process, on the other hand there is yet work available for being discharged by these petitioners. He submits that the case of the petitioners is not a case of backdoor appointment.
(8) (2013) 16 SCC (Mahipal Singh Tomar vs. State of Uttar Pradesh). With reference to paragraphs 37 to 41 of the judgment, the counsel submitted that in the present case the Cabinet decision has been taken without any opportunity to the petitioners to defend themselves and which decision of the State Government is in gross violation of the principles of Natural Justice.

 

The counsel submitted that there was no foundation for a decision to cancel the panel and once the Cabinet has taken a decision for regularisation, then the authorities are precluded from interference with the panel on the principles of promissory estoppel. The counsel in support referred to a judgment of the Supreme Court reported in 1986 BLJR 408 (SC) (S.N. Yadav Vs. Bihar State Electricity Board) more particularly paragraphs 3, 4 and 7.  

 

Drawing on Supreme Court's decision in paragraphs 13 and 17 AIR 1991 SC 537 (Kumari Shrilekha Vidyarthi Vs. State of U.P.), he submitted that while considering a similar decision regarding cancellation of panel of Law Officers, it was held that such decision taken must accompany reasons, even if it is not communicated. It is the submission of learned counsel that a decision which was not founded on reasons was held to be arbitrary. 

He also drew on Supreme Court's decision in Oryx Fisheries Private Limited vs. Union of India to submit that orders determining inter-party rights has to be backed by reasons. According to counsel, even a policy decision cannot be taken on whims and any such decision is liable to be struck down. Learned counsel in support of such proposition has made reference to a judgment of the Supreme Court reported in AIR 1985 SC 1147 (Ram & Shyam Company vs. State of Haryana). It was the argument of the counsel that a reason not reflecting in the decision, cannot be supplemented by affidavits. In support of his submission, he referred to the judgment of the Supreme Court reported in AIR 1978 SC 851: (1978)1 SCS 405 (Mohinder Singh Gill Vs. Chief Election Commissioner, New Delhi).

The counsel also made reference to the judgments of the Supreme Court reported in (1995) 3 SCC 401 (Union of India vs. Dinesh Kumar Saxena) and (1995)5 SCC 219 (Ghaziabad Development Authority vs. Vikram Chaudhary) to submit that the issues raised, requires a remand for a fresh consideration by the State on the issue of regularisation.

The counsel referred to a Division Bench judgment of the High Court reported in 1996(2) PLJR 394 (The Bihar State Adult and Non-formal Educational Employees Association vs. The State of Bihar) and in reference to the facts discussed in paragraph 7 and the conclusion at paragraph 33 he submitted that the Division Bench taking note of a similar situation issued direction for regularisation of the Teachers engaged on casual basis under the scheme of Adult Education. The counsel also referred to a judgment of the Supreme Court reported in 2015(2) PLJR (SC) 437 (Amarkant Rai vs. State of Bihar), to support the claim of regularisation advanced by the petitioners.

The issue which the High Court considered in the backdrop of the arguments advanced by the counsel for the parties was: 
(a) Whether the petitioners have a right to the continuity of panel;
(b) Whether they have a right to claim regularisation against a Government post;
(c) Whether the decision of the Cabinet to scrap the panel is arbitrary; and
(d) Whether the petitioners were entitled to a hearing.
The length of the argument advanced by counsel appearing on behalf of the petitioners basically was equity-based. 

The High Court relied on the Supreme Court's decision in 1993 Supp. (3) SCC 268 Babita Prasad vs. State of Bihar) for an answer to the plea of the petitioners regarding continuity of panel. It is also an answer to the prayer of regularisation and which runs as follows:"―26. The mere fact that the candidates who had been brought on the panel had been sent for training at the Government expense, would also not imply that any indefeasible right had been created in their favour for appointment after they had completed their training and their names were entered in the panel because the training was merely intended to confer eligibility on the candidates for being brought on the list. In the facts and circumstances of the case, we, therefore, hold that the panel prepared in the present case was only in the nature of an eligibility list of qualified trained teachers arranged according to their merit in a chronological order. It had been prepared without any process of selection whatsoever as none who was a trained qualified teacher was excluded from being brought on the list. The list was neither related to existing vacancies nor to anticipated vacancies. Such a panel did not create any vested or indefeasible right on the empanelists to be appointed." 

In the Liberty Oil Mills vs. Union of India reported in AIR 1984 SC 1271, it was held that the expression "without assigning any reasons" implied that no decision was communicated and although the reasons for a decision taken may not be stated but the reasons must exist otherwise a decision becomes arbitrary. It was clarified that "non-assigning of reasons" or "non-communication thereof" may be based on public policy but a termination of appointment without existence of a cogent reason, would be arbitrary and against the public policy. 

Justice Saran observed:"As regarding the non-adherence to the rules of natural justice, in my opinion, where the purported action is resting on a policy decision of the State, it would not require a scrutiny on the issue as long as it satisfies the test of arbitrariness and is based on sound reasons, equity, fairplay and justice. It is not a case where the State Government while retaining some of the 'ASVs‘, has done away with the others rather the panel itself has been scrapped and the reasons assigned is non- availability of fund and non-availability of work." 

The petitioners' contention regarding abandonment of the committee constituted to examine the grievance of the petitioners under the Cabinet decision dated February 19, 2015 mentioned in the letter of the Special Secretary, Cabinet Secretariat Department dated February 20, 2015. The resolution of the Cabinet passed on February 19, 2015 was acted upon and though a meeting was held on January 21, 2015 by the Chief Minister but it did not reach any conclusion. Although the file contained several notings which reflected that it was being acted upon until March 11, 2015 but it is apparent that thereafter the file was closed and the matter waas proceeded in another file Bearing No.LFkk0-02/06- 05/2010 and after a gap of five months the notings have initiated to consider the continuity of the panel iself. The notings started from August 3, 2015 and proposal mooted was for reconsideration of the continuity of the panel. In this background and after taking legal opinion thereon that a fresh memorandum was placed before the Cabinet, and discussed the reasons which form the basis for cancellation of the panel and it was accepted by the Cabinet decision and following which a formal order was issued by the Planning and Development department bearing Memo No.1549 dated July 26, 2016 cancelling the panel of "ASVs". The discussions clarified two aspects of the matter. Firstly that the decision of the Cabinet to constitute a Committee for considering the grievance of the "ASVs" was acted upon until March, 2015 but abandoned thereafter and the reasons were not explained.  Secondly, it was submitted by the counsel for the State that the contention committee so constituted was to consider only the cases of contract employee, was not correct. 

Justice Saran noted:"It is a different matter that the Cabinet resolution dated 19.2.2015 was not taken to its conclusion and may be a committee was also constituted to examine the cases of contract employees but it is not a case where the grievance of the petitioners did not find notice rather it was considered by the Cabinet and directions were issued for examining the same. It is another aspect of the matter this exercise was abandoned midway." The issue was whether in view of the position explained where undisputedly the Cabinet had constituted a committee to consider the grievance of the "ASVs", the subsequent resolution of
the Cabinet in the background explained in the memorandum which forms the basis for the resolution impugned, would require an interference. 

Justice Saran observed: "In my opinion, the two resolutions have been passed by the Cabinet at different stages. May be at the stage when the first resolution was passed on 19.2.2015, the Cabinet was of a different opinion but the developments that has taken place in between the first resolution passed on 19.2.2015 and the second resolution passed on 7.6.2016, becomes a relevant factor for a judicial review of the action taken. The counter affidavit as regarding the work discharged by these petitioners coupled with the stand on the availability of work and availability of funds, would not persuade this Court to issue any direction to the State to continue with the panel. Even if there have been stray instances of work being taken from these "ASVs", the choice lies with the State for such engagement. If the State has decided to now get the work done departmentally and there is nothing on record which would show that the State has deviated from such stand, there is no reason for the petitioners to raise any grievance nor any occasion arises to interfere with the decision. In fact in the words of the Supreme Court as found in the judgment of the Indian Drugs and Pharmaceuticals Ltd. (supra) and Nihal Singh (supra), any direction by this Court in the circumstances discussed, either for continuation of the panel or for considering the cases of these petitioners for regularisation, in absence of facts supporting continuity of discharge, would amount to a direction for creation of post as well as financial liability which is neither in the domain nor within the framework of judicial review."