IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15947 of 2008 1. HEERA PRASAD SINGH, S/O Sri Sia Saran Singh, Vill- Bandihali, P.O. Arga, Via- Baheri, P.S. Baheri, Dist. – Darbhanga. 2. Nitish Kumar, S/O Braham Deo Singh, Vill. Pabra, P.O. Arga, Via-Baheri, P.S.- Baheri, Dist.- Darbhanga. 3. Ganesh Sada, S/O Sri Kailu Sada, Vill.- Pabra, P.O. Arga, Via + P.S.- Baheri, Dist.- Darbhanga. 4. Munni Kumari, W/o Pramod Kr. Singh, Vill + P.O.- Inai, P.S. + Via- Baheri, Dist.- Darbhanga. 5. Chandra Kala Kumari, W/o Ajay Kr. Singh, Vill. + P.O.- Inai, P.S.- Baheri, Via- Baheri, Darbhanga. 6. Shailo Kumari, W/O Devendra Prasad, Vill- Bara, P.O.- Inai, P.S. Baheri, Via- Baheri, Darbhanga. 7. Jeewach Das, S/O Dukha Das, Vill.- Pabra, P.O.- Arga, Via-Baheri, P.S.- Baheri, Dist.- Darbhanga. ………..Petitioners. Versus 1. THE STATE OF BIHAR. 2. The Secretary, Primary and Adult Education Department, Govt. of Bihar, Patna. 3. The District Magistrate, Darbhanga. 4. The Block Development Officer, Baheri, Darbhanga. 5. The Block Education Extension Officer, Baheri, Darbhanga. 6. The Mukhiya, Gram Panchayat-Inai, Darbhanga. 7. The Panchayat Secretary, Gram Panchayat, Inai, Baheri, Darbhanga. 8. Lakshman Kumar Sahu, S/O Hare Ram Sahu, R/O Vi- Rampur, P.O. Inai, Block- East Baheri, Dist.- Dharbanga. 9. Mahadeo Manjhi, S/O Rameshwar Manjhi, R/o Vi- Rampur, Block- East Baheri, Dist.- Dharbanga. 10.Sheo Shankar Prasad, S/O – Bacha Mandal, R/O-vi- Bara, P.S.- Baheri, District- Dharbhanga. ----------- For the Petitioner:- Mr. Rajendra Pd. Singh, Sr. Adv. With Mr. Omkar Kumar, Adv. Mr. Alok Kumar Singh, Adv. For the State Mr. Ravi Verma, Adv. For the Private Respondents 8 to 10:- Mr. Mathura Nand Jha, Adv. ------------ 5 20.01.2011 Heard learned counsels for the petitioners, private respondents and the State. 2 Learned counsel for the respondent nos. 8 to 10 is permitted to make correction in the counter affidavit. The seven writ petitioners have filed application for quashing the order dated 14.08.2008 passed by the District Magistrate, Darbhanga in Misc. Case No. 121 of 2007-08 as contained in Annexure 1, whereby the Block Development Officer, Baheri was directed to prepare a new merit list for selection of Panchayat Teacher after giving notice to such applicants whose applications were not available and after receiving fresh applications from them, to make appointment of Panchayat Teachers, afresh and to cancel the appointment of those Shiksha Mitra whose names do not figure in the merit list and further direction was given to submit a report to the competent authority with regard to those Shiksha Mitras who have been appointed on the basis of the earlier merit list and who are subsequently working as Panchayat Teachers but whose names do not figure in the new merit list, such appointments should be cancelled and action to be taken against the erring officials. A prayer has also been made for not disturbing the petitioner from the post of Panchayat Shikshak and to make payment of the salary on month to month basis and further for staying the operation of the order dated 3 14.08.2008 as contained in Annexure 1. Subsequently, by the amendment application, the quashing of memo no. 3, dated 29.11.2008 as contained in Annexure 12 issued by Panchayat Secretary, Gram Panchayat Raj, Baheri, District Darbhanga was also prayed for whereby the appointment of petitioner nos. 1, 2 and 3 were cancelled. The quashing of letter dated 01.12.2008 issued by the Secretary of the Gram Panchayat by which respondent nos. 8 to 10, have been appointed as Shiksha Mitra as contained in Annexure 13, has also been prayed for. The other prayer in the amendment application has been made for directing the respondents to produce memo no. 1199 (Bidhi) dated 11.08.2008 issued by the Collector, Darbhanga and also to direct the respondent authorities to reinstate the petitioner in service and for impleading respondent nos. 8 to 10, as respondents in the present proceeding. The said application was allowed on 01.04.2010. Now Mr. Rajendra Prasad Singh, learned counsel for the petitioners only pressed the application with regard to petitioner no. 1 to 4, as petitioner no. 5 to 7 have already been reinstated in service. In 2005, fifteen posts, for appointment of Shiksha Mitra in Gram Panchayat under Baheri block of Darbhanga District were advertised. Out of fifteen posts, 4 eight posts were reserved for female candidates and seven for male applicants. In the female category out of eight posts, four were reserved for General Category, one was for Backward Class, and two were for Extremely Backward Class and the remaining one post was reserved for Schedule Caste and in the male category out of seven posts, four posts were reserved for General Category, one was reserved for Backward Class, one posts reserved for Extremely Backward Class and the remaining one post was reserved for Schedule Caste. In pursuance to the advertisement, 62 candidates applied out of which 38 applications were rejected since they were defective and the remaining 24 applications were processed. On 09.05.2005 in the meeting of Sukh Subidha Committee, the merit list was prepared and separate merit list was published for male and female candidates vide memo no. 6, dated 19.05.2005. Fifteen persons were employed as Shiksha Mitra for various schools as contained in Annexure 3. Petitioner nos. 1,3 and 6 joined their respective schools as Shiksha Mitra on 20.05.2005, as contained in Annexure 4, whereas petitioner nos. 2, 4, 5 and 7 joined their respective schools as Shiksha Mitra on 24.05.2005, as contained in Annexure 5. As per the circular the employments were for 5 11 months. Subsequently vide Memo no. 2, dated 06.06.2006 (as contained in Annexure 6) all petitioners were reemployed as Shiksha Mitra for 11 months on finding their work satisfactory. It is true that from 2003 to Ist of July 2006, Shiksha Mitra were being employed on contract basis for 11 months to impart teaching in Panchayat Schools but by coming into force of the Bihar Panchayat Primary Teachers (Employment and Service Condition) Rules, 2006, (hereinafter called Rules) the post of Panchayat Teachers was created in place of Shiksha Mitra which stipulates the employment of Panchayat Shikshak by mode envisaged under the Rules is absorption of Shiksha Mitra working on 01.07.2006. The petitioners who were working as Panchayat Shiksha Mitra were absorbed and regularized. Rule 20(III) of the Bihar Panchayat Elementary Teacher (Employment and Service Condition) Rules, 2006, reads as follows. “Kintu purv ke paripatra, adesh, anudesh ke alok me niyojit awm karyarat Panchayat Shiksha Mitra ais niyawali ke tahat shikchak ke rup me niyajan mane jayange”. Hence, by operation of Rule 20(III) of 2006 the petitioners got absorbed as Panchayat Teachers. 6 On 21.05.2005, respondent no. 8 filed a complaint before the respondent no. 3 and 5 that despite getting higher weightage points he was not appointed as a Panchayat Shikshak (as contained in Annexure 9 series). Subsequently, Laxman Kumar Sahu (Respondent no. 8) filed writ application before this Court being C.W.J.C. No. 9622 of 2007 challenging the employment of the petitioners. The writ application was disposed off with a direction to the respondent no. 8 to file objection before the Collector, which reads as follows. “ This writ petition is disposed of with the liberty to the petitioner to submit an appropriate application before the Collector of the District which, if filed within a period of two months from today, shall be disposed of on the merits by a reasoned order and the time spent by the petitioner in this Court shall not come in his way. This Court will be pleased if the entire process is completed within a period of three months from the date of submission of the application.” It may be relevant to notice here that the petitioners were not made party in the aforesaid writ proceeding by respondent no. 8. In pursuance to Hon‟ble High Court‟s direction the Collector, Darbhanga vide 7 Misc. Case no. 121 of 2007-08 directed the B.D.O., Baheri to prepare a fresh merit list after giving notice to all persons whose applications were not available and to those persons who were working but whose names did not figure in the merit list of Panchayat Shikshak and also directed that their services should be terminated while the appointment of Panchayat Teachers be made as per new merit list but it has been contended that before issuing such order no notice was served upon the petitioners. After finding that the application of respondent no. 8 was not available on record, the Block Development Officer, Baheri directed 12 persons including the respondent no. 8 and others to file fresh application and on receipt of such fresh application, the Block Development Officer, Baheri directed to cancel the appointment of petitioner nos. 1 to 3 and as such the Panchayat Secretary cancelled the appointment of the petitioner nos. 1 to 3 vide Memo No. 3, dated 29.11.2008, (as contained in Annexure 12) and vide Memo no. 4, dated 1.12.2008 the respondent nos. 8, 9 and 10 were appointed as Shiksha Mitra (Panchayat Shikshak) and were directed to join within five days. Hence the petitioners have prayed for quashing of the orders contained in Annexures 1, 12 and 13. Learned Senior Counsel, on behalf of the 8 petitioner, submits that the initial employment as Shiksha Mitra in 2005 was made for 11 months and that 11 months period had lapsed when the High Court directed the Collector to make enquiry. Subsequently, petitioners were employed in 2006 for a fresh term of 11 months, on the basis of their earlier certificates and thereafter by operation of Rule 20(III) of Panchayat Teachers Rules, 2006, the petitioners got absorbed as Panchayat Teachers. This fact was noticed by the Collector in his order, as contained in Annexure 1. Then on that ground alone the petitioner‟s appointment could not have been disturbed as admittedly the appointment was done for 11 months in 2005 and as per the resolution no. 1584, dated 11.08.2004 the objection was to be filed within a period of 30 days of selection and appointment and although undoubtedly the objection, vide Annexure 9, filed by the respondent no. 8 was within time but no action was taken by the respondent authorities. Then the respondent no. 8 filed writ application before this Court for illegality in appointment and thereby indirectly challenged the appointment of the petitioners but for the reasons best known to the respondent no. 8, the instant petitioners were not made party before this Court. The Hon‟ble High Court directed the respondent no. 8, who 9 was the petitioner in C.W.J.C. No.9622 of 2007 to submit the appropriate application before the learned Collector within a period of two months and the Collector was directed to consider the representation within the period of three months from the date of submission of the representation. The said period of two months was further extended for a period of four weeks on 1.10.2007, hence the Hon‟ble Court was please to direct to submit the representation by 29.10.2007, but the representation was submitted by the respondent no. 8 on 14.11.2007, as is evident from Annexure B to the counter affidavit. Hence it is submitted by learned counsel for the petitioner that the learned Collector ought not to have considered the representation of the respondent no. 8 since it was not within the stipulated time, as directed by the Hon‟ble High Court. The other contention of the Senior Counsel is that not only the Collector did not chose to issue proper notice to the petitioners but without noticing them or without giving an opportunity to present their case, the order dated 14.08.2007 was passed behind the back of the petitioner. On perusal of the order of the Collector, it reflects that the Collector came to the conclusion that the petitioners were absorbed as Panchayat Teachers, yet, the learned 10 Collector made the recommendation for cancelling the appointment and for preparation of fresh merit list and then to make appointment of Panchayat Techers, for which the learned Collector was not empowered, as Rule 9 of the 2006 Rules, prescribes the mode of appointment which is to be adopted for the Block Teachers and for the Panchayat Teachers, which has to be done by the Panchayat Samiti/Gram Panchayat. The Bihar Panchayat Primary Teachers (Employment and Service Condition) Rules, 2006, envisages only one mode of appointment and the other mode is the absorption of the Shiksha Mitra as provided under Rule 20(III) of the 2006 Rules. Hence on this score also the direction of the Collector was without jurisdiction. From perusal of the impugned order it appears that the Collector neither noticed the petitioners nor heard them. This Court feels that a right of hearing was vested to the petitioner and the manner in which the learned Collector had directed to prepare a new panel and consequent appointment of respondent nos. 8 to 10 as Panchayat Teachers are concerned, the same are absolutely without jurisdiction. There cannot be any appointment of Shiksha Mitra after coming into force of the Bihar Panchayat Primary Teachers (Employment and Service Condition) Rules, 2006, moreover, in the present 11 case the objection was with regard to employment as Shiksha Mitra made in 2005 for 11 months period and after lapse of the said eleven months there was provision of re-employment. Subsequently petitioners were re- employed as Shiksha Mitra for further period of 11 months in 2006 and ultimately absorbed as Panchayat Teachers from Ist of July, 2006 by operation of Rule 20(III) of 2006 Rules. Learned counsel for respondent no. 8 to 10 submits that his objection was filed within time on 21.05.2005, as contained in Annexure 9. The candidates with higher marks were not appointed and candidates having lower marks were appointed. No reason was assigned for rejection of 38 applications as defective. Lastly it has been urged that on 09.05.2005 the meeting of Sukh Subidha Committee was held but on 13.06.2005 the merit list was published. On 01.04.2010, the counsel appearing for the State was granted four weeks time for filing the counter affidavit but no counter affidavit has been filed on behalf of the State. Though the learned counsel for the State submits that the Collector passed the order in pursuance to the direction of Hon‟ble High Court and found irregularities and hence the service of the petitioners were terminated. There is no doubt that the 12 order has been passed by the Collector in pursuance to the direction of the Hon‟ble High Court but as it appears and also as submitted by State counsel that in spite of the direction of the Collector no action appears to have been taken against the responsible persons who committed illegality in the appointment process. The question of appointing the Shiksha Mitra, after the coming into force of 2006 Rules has been considered in the case of Kanhaiya Kumar Mishra & Ors Vs. The State of Bihar & Ors, reported in 2008(2)PLJR-503, which specifically laid down that after expiry of period of contractual employment as Shiksha Mitra and coming into force of new recruitment Rules, no person can be appointed as Shiksha Mitra. However, in view of the illegality, the Court directed for payment of cost to the persons who got deprived of their employment due to the illegality committed by the Appointing Authority. Para 7 and 8 of the said Judgment reads as follows. „7…………….The controversy relates to the appointment on the post of Shiksha Mitra for the period from 3.5.2005 to 3.4.2006. The time has long passed. Thereafter the right to continue for two successive periods of 11 months was inchoate on which enquiry report 13 undoubtedly holds that the petitioners have been wronged. But on account of expiry of the period from which the relief could have been granted, the whole exercise becomes academic. Thereafter, new Rules have come into force. The question of grant of appointment to the petitioners during the period of their claim which has already been lapsed, therefore, does not arise. To that extent the Court finds it difficult to grant any relief to the petitioners. 8……………..In view of the enquiry report that petitioners 1 and 2 had been illegally wronged, this Court does consider it proper to grant costs to them quantified at Rs. 25,000/- (Rupees twenty five thousand) each to be paid by the District Magistrate, East Champaran at Motihari within a period of four weeks. The District Magistrate is further directed to hold an enquiry of the circumstances in which and those responsible for the interpolation in the merit list leading to the denial of appointment to petitioners 1 14 & 2 and to recover the entire costs from the salary of the erring persons/ officials after giving them an opportunity to show cause. If any of them are found to be not a Government employee, the District Magistrate shall be at liberty to institute proceedings against them under the Bihar & Orissa Public Demands Recovery Act for recovery of costs.‟ Considering the aforesaid facts this Court comes to the conclusion that the respondents filed objection with regard to employment of the petitioners in 2005 as Shiksha Mitra but no objection was filed with regard to employment as Shiksha Mitra in 2006 and by coming into force of Bihar Panchayat Primary Teachers (Employment and Service Conditions) Rules, 2006, the petitioners‟ service as Panchayat Teacher cannot be disturbed. Moreover the impugned orders have been passed without conducting necessary enquiry or hearing the petitioners, hence the impugned orders cannot be sustained on this score also. It appears that respondent no. 8 filed the earlier writ application based upon his claim being applicant for selection as Shiksha Mitra, but the second last paragraph of the Collector‟s order, as contained in Annexure 1, reflects that the application of 15 respondent no. 8 was not available on record. Though learned Collector refused to exercise his jurisdiction in pursuance to the High Court order on the ground that after absorption of petitioners on Panchayat Teachers under Bihar Panchayat Primary Teachers (Employment and Service Conditions) Rules, 2006, the power to look into the illegality vests in the concerned Block Development Officer, but learned Collector has committed a gross jurisdictional error by directing the Block Development Officer to notice only the candidates whose applications are not available, accept their fresh applications and prepare a fresh merit list. These kinds of directions were neither issued by High Court nor the learned Collector has the power to do so. Hence the consequential order of Block Development Officer as contained in Annexure 13 is also without jurisdiction as the Block Development Officer has neither the power to receive any fresh application, prepare a fresh merit list or to make appointment as Shiksha Mitra, a post which was non-existent nor the Block Development Officer has jurisdiction to cancel the employment of the petitioners as Shiksha Mitra made in the year 2005 by issuing a non-speaking order on 29.11.2008 as contained in Annexure 12, as when the impugned order was issued, the petitioners' services 16 were absorbed as Panchayat Teacher and the employment of Siksha Mitra was on contractual basis for 11 months. Though vide Annexure 14 on 10.09.2008 Block Development Officer, Baheri asked the candidates whose application forms were not available to supply their application with necessary documents to Panchayat Secretary, Mr. Sattan Yadav, within three days. In the letter dated 10.09.2008, the name of Respondent No. 3 appears at serial no. 5 which depicts the names of the candidates whose application forms were not available on record meaning thereby that the so-called applicant, i.e., Respondent no. 8 who even invoked the writ jurisdiction of this Court, was not even an applicant for the post at the relevant time. From analyzing the entire state of affairs, it appears that the appointing authorities did not perform their work properly. Though the Collector vide Annexure 1 on 14.08.2006 directed the B.D.O. for taking action against the responsible persons, but it appears that no action has been taken. Accordingly the orders contained in Annexure 1, 12 and 13, are hereby quashed. The petitioners are directed to be reinstated within a period of two weeks from the receipt of the order and their payments should be made within the period of 17 six weeks of the receipt or service of the order. It is made clear that for the period the petitioners have not worked, for that period they would not be entitled for payment of salary but the said period will be taken into account so far as continuity of service is concerned. It is needless to say that hence forth the petitioners will get their current salary in accordance with law. Accordingly writ application is allowed. Bhardwaj/- ( Dinesh Kumar Singh, J.)