IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11019 of 2009 1.SHABNAM ARA 2. Md. Murshid Alam--------Petitioners. Versus THE STATE OF BIHAR & ORS . with CWJC No.6234 of 2010 1. SAHINA BANO, D/O MD. QUYIMUDDIN ANSARI AND W/O MD. NAIMUDDIN ANSARI, R/O VILLAGE- MALIA,,P.S. - RANIPATRA (MUFASSIL), DISTRICT- PURNEA. Versus 1. THE STATE OF BIHAR. 2. 2. THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT , GOVT. OF BIHAR, PATNA. 3. THE SECRETARY, HUMAN RESOURCES DEVELOPMENT (PRIMARY EDUCATION) DEPARTMENT , GOVT. OF BIHAR, PATNA. 4. THE DISTRICT SUPERINTENDENT OF EDUCATION, PURNEA. 5. THE BLOCK DEVELOPMENT OFFICER, PURNEA EAST, PURNEA. 6. THE BLOCK EDUCATION EXTENSION OFFICER, BLOCK- PURNEA EAST, DISTRICT-PURNEA. 7. THE MUKHIYA, GRAM PANCHAYAT RAJ BIYARPUR, BLOCK- PURNEA EAST, DISTRICT- PURNEA. 8. THE SECRETARY, GRAM PANCHAYAT RAJ BIYARPUR, BLOCK- PURNEA EAST, DISTRICT- PURNEA. 9. SHABNAM ARA W/O MD. MAHIRUDDIN AND D/O SHAUKAT ALAM, R/O VILLAGE, P.O & P.S - RAUTARA, DISTRICT - KATIHAR. 10. MD. MURSHID ALAM, S/O ABDUL SALAM, R/O VILLAGE-UCHITPUR,P.O RAUTARA,P.S - RANIPATRA,(MUFASSIL), DISTRICT-PURNEA. ----------- 4 11.5.2010 Reg:- I.A. no.2516 of 2010 Heard counsel for the petitioners, counsel appearing for the State as well as respondent no.8. Petitioners in CWJC No. 11019 of 2009 have prayed for quashing of order dated 14.7.2009 issued by the District Teachers Appointment Appellate Tribunal, Purnea in Appeal Case no. 192 of 2009. The Tribunal has allowed the appeal preferred by Sahina Bano Respondent no.8 and cancel the appointment of 2 petitioners. Further prayer is for quashing of the consequential order dated 8.8.2009 issued by the Panchayat Secretary, Biyarpur, Purnea, whereby the appointment of the petitioners made on the post of Panchayat teachers has been cancelled without giving any notice to the petitioners. The petitioners’ case is that the impugned order has been passed by the Block Education Extension Officer, in the light of interim order dated 15.10.2009 passed in CWJC No.11019 of 2009, although in the interim order, there was no direction for cancellation of petitioners’ appointment. Simply the operation of the order dated 14.7.2009 passed in Appeal Case No. 192 of 2009 by the District Teachers Employment Appellate Tribunal, Purnea has been stayed. Since the order has already been implemented before passing of the impugned order, petitioners’ case is that there is no reason for the Block Education Extension Officer for issuance of order dated 10.1.2010 cancelling petitioners’ appointment on the post of Panchayat Teacher. Advertisement was published in the year 2006, 3 inviting applications, for appointment against seven posts of Panchayat Teachers, in Gram Panchayat Raj, Biyapur. Petitioners as well as respondent no.8, in both the writ applications applied for the post. The case of respondent no.8 in CWJC No. 11019 of 2009 is that her name was in the merit list at Serial No.22. Out of seven posts of teacher, five posts were for general category, two posts for Urdu Teachers. Five persons were selected against the general post but for two posts of Urdu Teachers, four persons were selected as Urdu teachers, namely, Farida Khatoon, Murshid Alam, SabnamAra and Sadrul Haque. All these persons having Moulvi degree, as per Rule 6 of Bihar Panchayat Primary Teachers ( Appointment & Service Conditions) Rules, 2006, could have been appointed against only two vacancies of Urdu Teachers. So far general posts are concerned, they did not possess the requisite qualification for the post. Subsequently when this was noticed that the candidates having moulvi qualification, have been appointed in excess of the vacancy position, the State Government decided that candidates possessing 4 moulvi qualification appointed against the vacancies meant for general vacancy, will be treated to be absorbed on the said post and for the general category posts additional posts will be created and the candidates will be adjusted against those posts. In pursuance of the decision of the State Government, necessary follow up action for creation of additional posts of teachers was not being taken and the legitimate claim for appointment of persons like respondent no.8 in CWJC No. 11019 of 2009 and petitioner in CWJC No. 6234 of 2010 was being denied. As such an appeal case No. 192/2009 was preferred by Sahina Bano respondent no.8, which was decided in favour of applicant by order dated 14.7.2009. The Appellate authority held that out of four, two persons appointed against general posts, having moulvi qualification, will have to go since they did not possess requisite qualification. In the order passed by the Appellate Tribunal, the reason for cancellation of appointment of petitioners Sabnam Ara and Md. Murshid Alam, in comparison to other persons have not been disclosed but in the counter affidavit filed on behalf 5 of respondent no.8 the position has been clarified. It has been stated that out of four persons, namely, Farida Khatoon, and Sadrul Haque were retained because they had higher marks than the Sabnam Ara and Md. Murshid Alam. In Para 13 of the counter affidavit percentage of their marks has been disclosed. I find that any executive order issued by the respondent authorities of Human Resources Development Department, in the light of the provision under Rule cannot be held to be a legal provision. Rule 6 is very much clear on this point that persons having Moulvi degree, can be appointed against only Urdu teachers’ post. Despite this provision the State Government has issued directions, circulars to different authorities in the district level to retain such illegal appointees on their posts and the persons whose names are in the merit list, having eligibility for being appointed on general posts, are kept in waiting for creation of the posts for their appointment. The act of the respondent in the department of Human Resources Development Department, Govt. of Bihar, Patna is depreciable. I do not find any error in the order passed 6 by the Appellate Tribunal, so far termination of petitioners in CWJC No. 11019 of 2009 is concerned. This writ application is dismissed. The order passed in CWJC No. 6234 of 2010 is completely illegal and without jurisdiction as vide order dated 15.10.2009 passed in CWJC No. 11019 of 2009 simply the operation of order dated 14.7.2009 passed in Appeal No. 192 of 2009 has been stayed. Prior to that Sahina Bano had already been appointed on the post in compliance of the order dated 14.7.2009 passed by the Appellate Tribunal. There was no such direction and the interim order passed by the High Court regarding termination of the appointee in case the order passed by the Tribunal has already been implemented. Accordingly, the order dated 10.1.2009 contained in memo no. 660 is quashed being illegal. CWJC No. 6234 of 2010 is allowed. (Mridula Mishra,J.) A.Kumar