IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.934 of 2011 In Civil Writ Jurisdiction Case No. 5518 of 2010 ====================================================== Navnit Kumar, S/o Ranvir Prasad Singh, R/o Village-Hasanpur, P.S.-Harnaut, District-Nalanda. .... .... Appellant/Petitioner Versus 1. The State of Bihar 2. The Principal Secretary, Human Resources Development Department, Government of Bihar, New Secretariat, Patna. 3. The Director, Primary Education, Government of Bihar, New Secretariat, Patna. 4. Member of the Appellate Authorities, District Teachers Employment Nalanda (Biharsharif), P.S. & District-Nalanda. 5. The District Magistrate, Nalanda, P.S & District-Nalanda. 6. The District Superintendent of Education Nalanda, P.S & District- Nalanda. 7. The Regional Education Officer Noorsaray, Nalanda, P.S & District- Nalanda 8. The Block Development Officer, Harnaut, P.S.-Harnaut, District-Nalanda. 9. The Block Education Extension Officer, Harnaut, P.S.-Harnaut, District- Nalanda. 10. Mukhiya/Secretary, Gram Panchayat Raj, Kolawa, P.S.-Harnaut, District- Nalanda. 11. Panchayat Samiti Sadasya Panchayat, Kolawa, P.S.-Harnaut, District- Nalanda. 12. The Head Master, Middle School Amarpuri Kolawa, P.S.-Harnaut, District-Nalanda. 13. Ashawini Kumar, S/o Shailendra Singh, R/o Village-Hasanpur, P.S.- Harnaut, District-Nalanda. .... .... Respondents/Respondents ====================================================== Appearance: For the Appellant/s : Mr. Chakrapani, Mr. Dipak Kumar, Advocates. For the Respondent no. 6 : Mr. Kundan Bahadur Singh, SC 22. Patna High Court LPA No.934 of 2011 (9) dt.24-08-2011 2 / 7 2 Mr. Neeraj Kumar, A.C. to SC 22. For the Respondent no. 13 : Mr. Binod Kumar Singh, Mr. Anjani Kumar, Advocates. ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 9 24-08-2011 This Appeal under Clause 10 of the Letters Patent is preferred by the writ petitioner against the order dated 6th May 2011 made by the learned single Judge in above CWJC No. 5518 of 2010. The appellant filed above CWJC No. 5518 of 2010 under Article 226 of the Constitution to challenge the judgment and order dated 10th March 2010 passed by the District Teachers Employment Appellate Authority, Nalanda (Biharsharif) (hereinafter referred to as ‘the Appellate Authority’). It appears that under the then prevalent scheme for contractual employment of Panchayat Shiksha Mitra, in 2003 one Ashawini Kumar, the respondent no. 13 was appointed as Panchayat Shiksha Mitra in Gram Panchayat Kolwan, Harnaut. In view of the amended scheme under the Government Resolution dated 21st April 2005, the respondent no. 13 being not qualified for employment as Panchayat Shiksha Mitra, his appointment as Panchayat Shiksha Mitra was not renewed after 13th August 2005. In the resultant vacancy the appellant was appointed as Panchayat Shiksha Mitra on 28th August 2005. Since the appointment of the appellant, the then scheme for employment of Panchayat Shiksha Mitra was abolished under the Bihar Elementary Teacher (Employment and Patna High Court LPA No.934 of 2011 (9) dt.24-08-2011 3 / 7 3 Service Conditions) Rules, 2006 (hereinafter referred to as ‘the Rules of 2006’). Panchayat Shiksha Mitras who were serving as such as on 1st July 2006 were absorbed as Panchayat Sikshak by operation of Rule 20(iii) of the Rules of 2006. Similarly, the appellant also came to be absorbed as Panchayat Shikshak under the Rules of 2006. He is working as such till the date. In the matter of Kishori Prasad Vs. the State of Bihar & Others [2008(2) PLJR 458], the Division Bench of this Court held that the service of the petitioner in that case was terminated on 21st July 2005 before the expiry of 33 months from the date of his first appointment, and that the said petitioner had acquired the required qualification within less than 33 months of his first appointment. The Division Bench held that the service of the said writ petitioner could not have been terminated. The writ petitioner was directed to be reinstated and granted continuity in service with all consequential benefits. It appears that pursuant to the aforesaid judgment of the Division Bench of this court, on 4th July 2008 the State Government issued direction to all Gram Panchayats to reinstate all Panchayat Shiksha Mitras whose service was not continued for want of required qualification and who had gained the required qualification within 33 months of their appointment. Pursuant to the said direction, under order dated 19th September 2008 made by the Block Education Extension Officer, Nalanda, Harnaut, the respondent no. 13 and others were reinstated in service as Panchayat Shiksha Mitra. Thus, the respondent no. 13 was appointed as Panchayat Shiksha Mitra on the post occupied by the appellant. On reinstatement of the respondent no. 13, the respondent authorities stopped payment of honorarium/salary to Patna High Court LPA No.934 of 2011 (9) dt.24-08-2011 4 / 7 4 the appellant. Feeling aggrieved, the appellant approached the Appellate Authority in Appeal No. 1614 of 2009. The said appeal was decided on 10th March 2010. The Appellate Authority recorded that under the instruction issued by the District Superintendent of Education, the appointment of the appellant was cancelled in 2008 and thus the payment of honorarium was discontinued. Relying upon the above referred judgment of the Division Bench of this court, the Appellate Authority held that the respondent no. 13 though was not continued as Panchayat Shiksha Mitra for want of required qualification, he had gained the required qualification within 33 months of his appointment, his reinstatement in service was, therefore, valid. Feeling aggrieved the appellant filed above CWJC No. 5518 of 2010. The learned single Judge has disposed of the writ petition by observing, “…..for the period the private respondent had not worked and petitioner was employed and was made to work, he surely has a right for payment of honorarium for that period because no person can be allowed to work gratis, much less under the respondent State authorities.” Therefore, the present Appeal. Learned advocate Mr. Chakrapani has appeared for the appellant. He has submitted that the appellant was employed as Panchayat Shiksha Mitra on 28th August 2005 after following due procedure. Pursuant to his appointment made on 28th August 2005 he was functioning as Panchayat Shiksha Mitra as on 1st July 2006. By operation of Rule 20(iii) of the Rules of 2006 the appellant stood absorbed as Panchayat Shikshak. Till date, he has Patna High Court LPA No.934 of 2011 (9) dt.24-08-2011 5 / 7 5 continued to serve as Panchayat Shikshak. Mr. Chakrapani has submitted that the finding that the appellant’s service was terminated in 2008 is incorrect. The appellant’s service has never been terminated. He has submitted that there is no justification for not paying honorarium to the appellant nor the appellant can be displaced from service on account of reinstatement of the respondent no. 13 in service. Learned advocate Mr. Binod Kumar Singh has appeared for the respondent no. 13. He has submitted that the respondent no. 13 has been appointed as Panchayat Shiksha Mitra pursuant to the above referred judgment of this court; his appointment is, therefore, valid. Let us note that in the matter of Kishori Prasad (Supra), this Court did not discuss the entire scheme of employment of Panchayat Shiksha Mitra nor did this Court consider the effect of abolition of the cadre of Panchayat Shiksha Mitra with effect from 1st July 2006 and the effect of Rule 20 of the Rules of 2006. The said order was made in respect of the appellant in the said appeal. No omnibus direction was issued by this court requiring the State Government to reinstate all Panchayat Shiksha Mitra in service who had acquired the requisite qualification within 33 months of their first appointment. Nevertheless, it appears that the State Government issued a general direction to all Gram Panchayats to reinstate such of the Panchayat Shiksha Mitra who had acquired the requisite qualification within 33 months of their appointment. We are of the opinion that the said direction issued by the State Government was in contravention of Rule 20(iii) of the Rules of 2006. Once the cadre of Panchayat Shiksha Mitra was Patna High Court LPA No.934 of 2011 (9) dt.24-08-2011 6 / 7 6 abolished, only those Panchayat Shiksha Mitras were protected who were serving as such as on 1st July 2006; no Panchayat Shiksha Mitra could have been appointed afresh after 1st July 2006. In our judgment in the matter of Smt. Renu Kumari Pandey Vs. The State of Bihar & Others (CWJC No. 10113 of 2007 decided on 23rd August 2011), we have categorically held that “under Clause (i) of Rule 20 of the Rules all earlier resolutions, orders, directions issued in respect of employment of Panchayat Shiksha Mitra are repealed. Consequently, the posts of Panchayat Shiksha Mitra stood abolished. Thereafter, no person can be employed as Panchayat Shiksha Mitra ; nor can there be a deemed employment as Panchayat Shiksha Mitra; nor there can be a deemed absorption in the service as Panchayat Shikshak by operation of Rule 20(iii) of the Rules. In our opinion, even in a case where a person has a legitimate grievance in respect of his or her non-selection as Panchayat Shiksha Mitra at the relevant time or non-continuance as Panchayat Shiksha Mitra, such person cannot be deemed to have been appointed as Panchayat Shiksha Mitra; nor can he/she be deemed to have been employed as Panchayat Shiksha Mitra as on 1st July 2006; nor can such person be deemed to have been absorbed in service as Panchayat Shikshak under the Rules”. In the present case, the respondent no. 13 had never questioned non renewal of his employment as Panchayat Shiksha Mitra. After abolition of the cadre of Panchayat Shiksha Mitra, the respondent no. 13 could not have been appointed as such. After 1st July 2006 he could not have been employed as Panchayat Patna High Court LPA No.934 of 2011 (9) dt.24-08-2011 7 / 7 7 Shikshak, except in accordance with the Rules of 2006. In our view the appointment of the respondent no. 13 made on 19th September 2008 was in contravention of Rule 20(iii) of the Rules of 2006. Neither the said appointment can be sustained; nor such appointment can displace the appellant who had been validly appointed and was absorbed as a Panchayat Shikshak by operation of Rule 20 (iii) of the Rules of 2006. For the aforesaid reasons, we allow this Appeal. The order dated 6th May 2011 made by the learned single Judge in above CWJC No. 5518 of 2010 is set aside. CWJC No. 5518 of 2010 is allowed. Order dated 10th March 2010 passed by the Appellate Authority, Nalanda (Biharsharif) in Appeal No. 1614 of 2009 is quashed and set aside. We hold that the appellant is entitled to the wages/honorarium for the service rendered by him. The action of the respondent authorities in discontinuing the payment of wages/honorarium to the appellant is ex facie bad and illegal. The respondent authorities are directed to pay the arrears of wages/honorarium to the appellant at the earliest but not beyond 30th September 2011. In the event, the respondent authorities fail to pay the arrears of wages/honorarium to the appellant as directed, commencing from 1st October 2011 the appellant will be entitled to interest at the rate of 10 per cent per annum over the amount of arrears of salary. The parties will bear their own cost. Sujit/- (R.M. Doshit, CJ) (Birendra Prasad Verma, J)