IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.937 of 2011 In Civil Writ Jurisdiction Case No. 13620 of 2008 ====================================================== Pankaj Kumar Thakur , S/O Sri Sarangdhar Thakur, Resident of village- Deendayalpur, P.O. Mamsai, P.S. Sahadai, District- Vaishali. .... .... Appellant/s Versus 1. The State Of Bihar 2. The District Superintendent of Education, District- Vaishali. 3. The Block Development Officer, Sahadai Buzsurg, District- Vaishali. 4. The Block Education Extension Officer, Sahadai Buzurg, District Vaishali. 5. The Mukhiya, Gram Panchayat Salha, Block- Shadai Buzurg, District- Vaishali. 6. The Panchayat Secretary, Gram Panchayat Salha, Block Shadai Buzurg, District- Vaishali. 7. The Headmaster, Utkramiti Madhya Vidyalaya, Dubha, P.O.- Pohiyar, Block Sahadei Buzurg, District- Vaishali. .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Bipin Bihari Sinha For the Respondent/s : Mr. P.K. Verma AAG-5 Mr. Suman Kumar Jha, A.C. to AAG-5 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 3 06-07-2011 This Appeal under Clause 10 of the Letters Patent is preferred by the writ petitioner against the order dated 12th May 2011 made by the learned single Judge in above C.W.J.C. No. 13620 of 2008. Patna High Court LPA No.937 of 2011 (3) dt.06-07-2011 2 The appellant is a partially disabled person with 15% disability in the lower limb. On the basis of the certificate of disability produced by him, he was appointed as Panchayat Teacher on a post reserved for physically handicapped person. Having noticed that the appellant was suffering from a partial disability and he was not a disabled person as defined in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the 1995 Act/ the Act of 1995), on 21st June 2008, the District Superintendent of Education, Vaishali issued a direction to cancel the appointment of the appellant as Panchayat teacher made on the post reserved for physically handicapped person and to recover the amount of honorarium paid to him. Pursuant to the said order, the Block Education Extension Officer, Sahdei Buzurg informed the Headmaster of the School that the appointment of the appellant was cancelled and that no work should be taken from the appellant. Consequential order was made by the Headmaster of the School on 22nd July 2008. Feeling aggrieved by the above referred orders, the appellant approached this Court in above C.W.J.C. No. 13620 of 2008 under Article 226 of the Constitution. The said petition has been dismissed by the learned single Judge. Patna High Court LPA No.937 of 2011 (3) dt.06-07-2011 3 Therefore, the present appeal. Learned advocate Mr. Bipin Bihari Sinha has appeared for the appellant. He has submitted that the appellant was appointed under Bihar Panchayat Elementary Teacher (Employment and Service Conditions) Rules, 2006(hereinafter referred to as “the 2006 Rules”). He has submitted that Rule 18 of the said Rules, as was prevalent at the relevant time, empowered the Block Development Officer to hear and decide any complaint in respect of the appointment, transfer or service conditions of the Panchayat Teachers. In the present case, the order has been made by the District Superintendent of Education without the authority of law. He has also submitted that the appellant did produce the medical certificate in support of his disability. The said certificate has been found to be genuine. The appointment of the appellant, therefore, cannot be cancelled. The Appeal is contested by the learned Additional Advocate General Mr. P.K.Verma appearing for the respondents. Reliance is placed on section 2(t) of the 1995 Act and the scheme for reservation made by the State of Bihar under the powers conferred by section 38 of the 1995 Act. Section 2(t) of the Act of 1995 defines “person with disability” to mean “a person suffering from not less than forty Patna High Court LPA No.937 of 2011 (3) dt.06-07-2011 4 per cent of any disability as certified by a medical authority”. The word “disability” is defined in clause (i) of the said section 2 of the 1995 Act. The term “disability” defined in the said clause (i) includes “locomotor disability”. The Government of Bihar has, under its Resolution dated 15th January 2007, framed a scheme for reservation for the handicapped persons, for appointment/ promotion in the State service and for admission in educational institutions. The said scheme also provides for similar reservation and the procedure to be followed for such appointment. Thus, it is apparent that any person suffering from “locomotor disability” of less than 40% is not classified as “a person with disability” for the purpose of reservation in the matter of appointment or promotion in the State service or for admission in educational institutions. Evidently, the appellant’s appointment on a post reserved for physically handicapped person was illegal and void ab initio and was liable to be cancelled. The impugned order of cancellation of appointment not being punitive, the aforesaid Rule 18 of the 2006 Rules relied by Mr. Sinha has no application. We have noticed that in the impugned order the District Superintendent of Education has also directed that the amount of honorarium paid to the appellant be recovered. We see Patna High Court LPA No.937 of 2011 (3) dt.06-07-2011 5 no justification for recovery of the amount of honorarium paid to the appellant. The appellant did render service as a teacher and was entitled to the honorarium on the principle of “quid pro quo”. The honorarium paid to him for the service rendered by him cannot be recovered. The impugned order dated 21st June 2008 made by the District Superintendent of Education, Vaishali to the extent the amount of honorarium paid to the appellant is ordered to be recovered is set-aside. We direct that no recovery will be made from the appellant pursuant to the impugned order dated 21st June, 2008. No other contention is raised before us. The appeal stands allowed to the above extent. The parties will bear their own cost. BTiwary/ (R.M. Doshit, CJ) (Birendra Prasad Verma, J)