IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.17406 of 2010 1. SANJAY KUMAR S/O SRI KRISHNA RAVIDAS R/O VILL CHHATIYANA, P.O.CHHATIYANA, P.S.HARNAUT, DISTT-NALANDA AT PRESENT POSTED AS PANCHAYAT SHIKSHAK PRIMARY SCHOOL, MAHWACHAK, HARNAUT, DISTT-NALANDA Versus 1. THE STATE OF BIHAR 2. THE COMMISSIONER CUM SECRETARY, HUMAN RESOURCES DEPTT. GOVT. OF BIHAR, PATNA 3. THE DIRECTOR, PRIMARY EDUCATION GOVERNMENT OF BIHAR, PATNA 4. THE DISTRICT MAGISTRATE NALANDA 5. THE DISTRICT SUPERINTENDENT OF EDUCATION NALANDA 6. THE BLOCK DEVELOPMENT OFFICER HARNAUT, NALANDA 7. THE BLOCK EDUCATION EXTENTION OFFICER HARNAUT, NALANDA 8. THA PANCHAYAT SECRETARY, GRAM PANCHAYAT GONAMAN, HARNAUT, DISTT-NALANDA 9. THE MUKHIYA, GRAM PANCHAYAT GONAWAN, PRAKHAND-HARNAUT, DISTT-NALANDA ----------- 2 12/05/2011 The Court may have sympathy with the petitioner but in absence of law being in his favour, no relief as such can be granted to him. The predicament of the present petitioner can be well appreciated in the background under which he has been virtually marginalized from the post where he was appointed under the Panchayat as a Panchayat teacher. Short facts are that one Indra Prakash Gautam was initially appointed as a Panchayat Shiksha Mitra and - 2 - later on became a Panchayat teacher by virtue of the deemed fiction of law or the Rules promulgated by the State. At the time of initial appointment on the post of Panchayat Shiksha Mitra, the basic requirement in terms of educational qualification was Matriculate but later on the minimum eligibility became Intermediate. At the relevant time since Mr. Indra Prakash Gautam did not have the Intermediate degree, he was ousted from the post. Matter did not rest at that because many a writ applications came to be filed before the High Court against the orders of such removal on failure of such candidates to acquire a degree within the specified time frame of 33 months. Not only a Single Bench but even a Division Bench held that candidates so appointed could not be removed on the ground that they have acquired the degree beyond the specified time frame. Based on the judicial pronouncements, the State of Bihar issued a circular dated 4.7.2008 directing reinstatement of all such persons removed in that background. Indra Prakash Gautam, therefore, got a right for being reinstated and he came to be reinstated with effect from 24.09.2008. - 3 - The present petitioner stepped into the shoes of Indra Prakash Gautam because he came to be appointed due to the vacancy caused by Mr. Gautam. He did work in the above stated circumstance and he still claims that he continues to work but payment of salary has been stopped by the respondents from sometime in April, 2009. Writ has now been filed for a direction upon the respondents to pay salary to the petitioner for the period he worked or may be even current salary. A counter affidavit on behalf of the District Superintendent of Education, Nalanda came to be filed. All these facts noted in the earlier part of the order is reflected in the counter affidavit with an additional material that the petitioner had also moved the District Teachers Appointment Appellate Authority against the reinstatement of said Mr. Gautam by filing Appeal No. 1624 of 2009 but that was a futile attempt as no relief to the petitioner was granted. This fact has not been disclosed by the petitioner in the writ application which according to the Court amounts to a vital suppression of fact. Right of the petitioner to claim salary would only - 4 - arise provided his continuance on the post was a legal exercise. If Mr. Indra Prakash Gautam was reinstated to his original post with effect from 24.09.2008, it is not understood as to how the petitioner was allowed to continue and serve the school against the vacancy which was no longer existant after return of Mr. Gautam to his original post. Obviously, there is some connivance at the local level of the Panchayat which has facilitated continuance of the petitioner. If an illegality has been caused or is permitted to have been continued by the connivance of the Panchayat, this Court is not willing to pass any order or direction burdening the State for payment of salary in favour of the petitioner because two persons cannot draw salary against one post. Right to claim salary by the petitioner is not based on any legal position emerging from the facts and circumstances noted in the earlier part of the order. Right to claim salary, if at all, belongs to Indra Prakash Gautam and not the petitioner atleast with effect from 24.09.2008. There is no occasion to even treat the petitioner to have continued on the post after return of Mr. Gautam as a teacher in the said school. - 5 - Obviously, the petitioner is trying to tinker in law by first taking his chance by moving the Appellate Authority and on his failure he is looking for a wind fall which this Court is not willing to grant. There is no right to claim any salary in favour of the petitioner in the circumstances and the background under which his appointment was made and against the vacancy caused by the illegal ouster of Mr. Gautam. This writ application has no merit. It is dismissed accordingly. AMIN/ (Ajay Kumar Tripathi, J.)