IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3058 of 2008 NAWNIT KUMAR son of Sri Chandra Shekhar Trivedi, resident of village Jurwanpur, P.S. Miniyarpur, P.S. Bidupur, District Vaishali … … Petitioner Versus 1. THE STATE OF BIHAR, 2. The Principal Secretary, Human Resources Development Department, Government of Bihar, Patna, 3. The Commissioner, Tirhut Division, Muzaffarpur, 4. The District Magistrate, Vaishali at Hajipur, 5. The District Superintendent of Education, Vaishali at Hajipur, 6. The Block Development Officer, Bidupur, District Vaishali at Hajipur, 7. Block Education Extension Officer, Bidupur, District Vaishali at Hajipur, 8. Mukhiya, Gram Panchayat Raj Jurawanpur, Block Bidupur, District Vaishali, 9. Panchayat Secretary, Gram Panchayat Raj, Jurwanpur, Block Bidupur, District Vaishali at Hajipur, 10. District Development Commissioner, Vaishali at Hajipur, … Respondents For the Petitioner: Mr. Ram Suresh Roy, Sr. Advocate, Mr. Pankaj Kumar Singh, Advocate For the State: Mr. Arshad Alam, SC 3 M/s Gautam Kumar Yadav and Md. Arif, AC to SC 3 ----------- 11 04.03.2011 Heard learned counsel for the petitioner and the State. The petitioner has preferred this writ application for quashing the order as contained in Memo No. 04 dated 31.01.2008 (Annexure 1), whereby the petitioner’s 2 appointment as Prakhand Teacher of Jurawanpur Madhya Vidyalaya, Gopalpur has been cancelled by the Block Development Officer, Bidupur, Vaishali. It is submitted on behalf of the petitioner that he was appointed in the year 2005 on the post of Shiksha Mitra in the Middle School, and his such engagement was subsequently extended and thereafter upon framing of the Bihar Panchayat Prarambhik Shikshak (Niyojan Avam Seva Shart) Niyamavali, 2006 (as amended by Amendment Rules 2008) (hereinafter to be referred to as “the Rules”), his services in terms of Rule 20(iii) thereof were absorbed as Prakhand Teacher. However, subsequently, on 26.12.2007 he had received a show-cause from the Block Development Officer, Bidupur, regarding certain irregularities in his initial engagement as Shiksha Mitra as it has been found that 5 marks were added for the purpose of his selection on the basis that he had passed Post Graduate Examination, but, in fact, the petitioner had not passed M.Sc. Examination at the relevant time rather had only passed the first part of the Examination, which is known as Previous Part. A reply was filed by the petitioner pursuant to the notice and eventually the order has been 3 passed, as contained in Annexure 1, holding t that at the time of selection 5 marks had been added without the petitioner having passed the Post Graduate Examination. In view thereof, his initial engagement itself was not valid, and, therefore, the same has been cancelled. Learned counsel for the petitioner submits that at the time of filling up the form he had stated in the application that he had only passed the previous year examination, however, it appears that 5 marks were given to him perhaps on assumption that he had passed the Post Graduate Examination. However, subsequently, the petitioner has passed the Post Graduate Examination. At the time of his absorption as Panchayat Teacher he had requisite qualification, and, thus, after so many years his initial appointment should not have been cancelled by the authority. The second point raised by learned counsel for the petitioner is that the petitioner has been absorbed as Prakhand Teacher and according to Rule 18 of the Rules, the Deputy Development Commissioner was only authorized to entertain any complaint and take a decision with regard to the dispute relating to the appointment concerned. In that view of the matter, it is submitted that the 4 order impugned is without jurisdiction. State has filed counter affidavit and stand has been taken that the initial appointment of the petitioner was itself illegal as, admittedly, he had not passed the Post Graduate Examination, however, 5 marks were given to him for that purpose. In the absence of 5 marks he could not have been selected, thus, there is gross irregularity in the selection of the petitioner. Learned counsel also drew attention of this Court towards Rule 11 of the Rules to show that the Block Development Officer being the Executive Officer of the Panchayat Samiti is competent to scrutinize the certificates and in case, certain irregularity is found he could have cancelled the selection. Larned counsel for the petitioner, on the other hand, submitted that the Block Development Officer is not the Executive Officer as contemplated in Rule 11 of the Rules. However, in the opinion of this Court, from own showing of the petitioner, it is apparent that at the time of his initial appointment he was not having the qualification of the Post Graduate Examination for which 5 marks were to be added for the purpose of selection. In paragraph 7 of 5 the supplementary counter affidavit filed on behalf of the State, it has categorically been stated that the Block Development Officer being the executive officer of the Panchayat Samiti had scrutinized the certificate of the petitioner and discovered the anomaly. Be that as it may, since from own showing of the petitioner, at the time of his initial selection/appointment, he was not entitled to be given 5 marks for passing the Post Graduate Examination, his selection was illegal. Thus, it would be difficult for this Court to exercise its discretionary jurisdiction under Article 226 of the Constitution of India in favour of the petitioner. Since the initial engagement as Prakhand Shiksha Mitra itself was illegal, in the opinion of this Court, the petitioner’s subsequent absorption would also be illegal even if he had subsequently acquired the necessary qualification. Accordingly, this writ application fails and is dismissed. SC (Dr. Ravi Ranjan, J.)