IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.16446 OF 2007 1.MAHENDRA SINGH 'SUMAN', S/O SRI RAJDEO SINGH, R/O VILLAGE HASANPUR, P.O. BARAINI, P.S BELAGANJ, DISTRICT GAYA. 2.SITARAM DAS, S/O MUNDRIKA DAS, R/O VILLAGE BARAINI, P.S BELAGANJ, DISTRICT GAYA. 3.SANGITA KUMARI, W/O NIRANJAN SINGH, R/O VILLAGE FATEHPUR, P.S BELAGANJ, DISTRICT GAYA. 4.MAHENDRA SINGH, S/O SRI JAGDISH SINGH, R/O VILLAGE JOGIA SAMARA, P.S. BELAGANJ, DISTRICT GAYA. 5.SUSHMA KUMARI, D/O RAM NARESH PRASAD, R/O VILLAGE SIMRA, P.S. BELAGANJ, DISTRICT GAYA. 6.SANJU KUMARI, W/O SHANKAR DAYAL MISHRA, R/O VILLAGE HASANPUR, P.S BELAGANJ, DISTRICT GAYA. 7.DEVENDRA NATH SHARMA, S/O RAJ NANDAN SHARMA, R/O VILLAGE DIHA BAJAR, P.S BELAGANJ, DISTRICT GAYA. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR. 2.THE DISTRICT MAGIRSTRATE, GAYA. 3.THE DISTRICT SUPERINTENDENT OF EDUCATION, PATNA. 4.THE B.D.O, BELAGANJ, GAYA. 5.THE PANCHAYAT SACHIV, SHREEPUR, P.S BELAGANJ, DISTRICT GAYA. 6.THE MUKHIYA, SHREEPUR, BELAGANJ, GAYA. ………………………RESPONDENTS. ----------- 04/ 02.08.2011 Heard counsel for the petitioners and counsel for the State. The petitioners in this writ application have assailed the order dated 24.04.2007 passed by the Collector of Gaya (District Magistrate) whereby and whereunder, he has directed the Block Development Officer, Belaganj in the district of Gaya to cancel the entire selection and appointment made on the 2 post of Shiksha Mitra on the ground that the prescribed procedure was not followed by the Panchayat. Learned counsel for the petitioner submits that the day on which such order was passed by the Collector of the district, he had been left with no jurisdiction to interfere in the matter, in asmuch as, all the petitioners engaged as Shiksha Mitra in the year 2003 having continued in the aforesaid capacity were ultimately absorbed on the post of Panchayat Shikshak w.e.f. 01.07.2006, in terms of rule 20(iii) of Panchayat Shikshak Rules 2006. He would accordingly submit that when 2006 Rules had made the Block Development Officer the prescribed Authority, the direction/dictation given by the Collector to the Block Development Officer was virtually binding, coercing a Subordinate Officer to abdicate his statutory power by complying the direction of the Superior Authority. He would further submit that the complaint which became the subject matter of inquiry and ultimately led to the impugned order of the Collector was itself belated, inasmuch as, none of the persons had filed such complaint in the year 2003 when the petitioners were engaged as Shiksha Mitra. He would also place reliance on 3 an order of this Court dated 28.03.2011 passed in C.W.J.C No. 15536 of 2006, wherein, a similar order was passed by the Collector of Gaya district seeking to terminate the services of Panchayat Shikshak who were earlier engaged as Shiksha Mitra was set aside. Learned counsel for the State, on the other hand would submit that the complaint which was made the basis for the Collector to initiate the inquiry was the one which was given to the Chief Minister of the State in Janata Darbar and therefore, such complaint can not be said to be the first complaint on behalf of the aggrieved persons. He has further submitted that even if all the submissions made by the petitioners are accepted, it can be well established from the inquiry report that at least two persons were edged out despite their having higher marks namely Lata Kumari and Arkaja Kumari by appointing Sanju Kumari, petitioner no. 6 and Sangeeta Kumari, petitioner no. 3. In the considered opinion of this Court, the plea of delay in filing the complaint cannot be looked into in absence of the complainant, who have not been made 4 parties to this writ application. From Annexure-A to the counter affidavit, it is clear that a complaint which was filed before the Chief Minister in Janata Darbar by Rajiv Kumar, Priyanka Sinha and Lata Kumari was forwarded to the Collector for further action and therefore, it cannot be said in the absence of the complainant as to whether it was from first complaint or otherwise. This plea of delay in filing of the complaint therefore cannot be accepted. The objection of the learned counsel for the petitioners to the reasons mentioned in the impugned order of the Collector or the direction contained therein also does not appeal to this Court, inasmuch as, the Collector had not passed the order for terminating the services of the petitioner. The Collector of the district had merely sent the facts and figures to the statutory Authority being the Block Development Officer, who was apprised with the inquiry report and was directed to Act upon such inquiry report. Before any action could be however taken by the B.D.O, the petitioners have rushed to this Court assailing the aforesaid letter of the Collector which would amount to filing of 5 premature writ petition. The petitioners have also not brought on record the resultant order passed by the B.D.O. and they have merely assailed the direction of the Collector of the District. There can be no difficulty in appreciating the submission of learned counsel for the petitioner that the Collector of the district being the superior Authority, any direction given by him would be binding on the B.D.O but then as was held way back in the case of The Purtabpur Company Ltd vs Cane Commissioner of Bihar and Ors, reported in AIR 1972 (2) SC 1896 the exercise of the power by the statutory Authority cannot be said to be bad only because some direction was issued by the superior Authority. It is only when the order had been passed by the Statutory Authority by acting on such dictation of the superior Authority, that order would become bad. In the present case since the Collector’s direction in his letter to the Block Development Officer, was not acted upon the same cannot be successfully assailed by the petitioner. From the record it is clear that the services of the petitioners were actually 6 terminated in view of the order passed by the B.D.O, Belaganj letter no. 386 dated 15.05.2007, but that order has not been brought on record. Consequently this Court is not aware as to whether the Block Development Officer had acted on the dictation given by the Collector or had passed his own independent order. There would be however one aspect which would go to the root of the matter justifying continuance of at least five of the seven petitioners, inasmuch as, even in the inquiry report forwarded by the collector it was categorically mentioned that:- ^^-----------ckotwn blds ;fn ge ;g eku ys fd vxj vkelHkk gqbZ gksxh ,oa vkosnu izkfIr dh frfFk Hkh i;kZIr gS ,oa p;u jftLVj esa vafdr es?kk lwph lgh gS rks p;u jftLVj ds vuqlkj vkn'kZ es?kk lwph dk fuEufyf[kr :i esa fuekZ.k lEHko fn[krk gSA vkn'kZ es?kk lwph fu;ksftr f'k{kk fe=ksa dh lwph Ø0 vH;FkhZ dk uke es?kk vad tkfr vkj{k.k vH;FkhZ dk uke es?kk vad tkfr 1- yrk dqekjh ¼vkosfndk½ 74-33 dks;jh UR lq"kek dqekjh 67-55 dks;jh 2- lq"kek dqekjh 67-55 dks;jh UR egsUnz flag lqeu 65-12 ;kno 3- egsUnz flag lqeu 65-12 ;kno UR egsUnz flag 63-77 ;kno 4- egsUnz flag 63-77 ;kno UR latq dqekjh 62-55 ;kno 5- vdZtk dqekjh 63-00 dks;jh BC laxhrk dqekjh 62-33 dks;jh 6- Lhrkjke nkl 58-00 vuq0 tkfr SC lhrkjke nkl 58-00 vuq0 tk0 7- nsosUnz ukFk 'kekZ 46-00 ukbZ EBC nsosUnz ukFk 'kekZ 46-00 ukbZ 8- ;ksX; vH;FkhZ ugha gS EBC jhuk dqekjh 57-22 rsyh 7 blds vfrfjDr nks vU; vkosnd dk es?kk vad fuEu gSA 1- jktho dqekj & 60-33 ¼fiNM+k oxZ½ 2- dqekjh fiz;adk flUgk & 61-62 ¼fiNM+k oxZ½ bl izdkj iapk;r Jhiqj }kjk o"kZ 2003 esa fu;ksftr fd, x, f'k{kk fe=ksa ds fu;kstu ds fo:) dqy rhu vkosndks us ifjokn i= fn;k FkkA ftlesa ls nks vkosnd Jh jktho dqekj ,oa Jherh dqekjh fiz;adk flUgk dk LFkku u rks vkn'kZ es?kk lwph esa vksj u gha fu;ksftr f'k{kk fe=ksa dh lwph esa curk gSA tcfd rhljh vkosfndk Jherh yrk dqekjh vf/kd vad gksus ds dkj.k vkn'kZ es?kk lwph esa LFkku izkIr djrh gSa fdUrq p;u izfØ;k iath ds muds uke ds vfHk;qfDr okys dkWye esa eSfVªd dk izek.k i= ugha dk vad.k gSA ckotwn blds Jherh yrk dqekjh dk nkok lgh izrhr gksrk gSA vr% ;fn flQZ p;u iath dks lgh ekuk tk; rFkk ;g eku fy;k tk; fd vkelHkk gqbZ gksxh] rc Hkh vkn'kZ lwph ,oa p;fur lwph dk feyku djus ij ;g Li"V gksrk gS fd ¼i½ Jherh latw dqekjh ¼ii½ Jherh laxhrk dqekjh rFkk ¼iii½ Jherh jhuk dqekjh dk p;u oS/k ugh gSA** Thus from the aforementioned inquiry report, it would be clear that even after rearranging the marks and the reservation cum roster list in which the two petitioners namely, petitioner no. 3 and 6 did not come in the order of merit whereas rest of the petitioner nos. 1, 2, 4, 5 and 7 were having the requisite marks in their respective category for their being selected and appointed on the post of Shiksha Mitra. Counsel for the petitioner is also not in a position to justify the denial of selection and appointment of Lata Kumari and Arkaja Kumari despite of having their higher marks of 74.33% and 63.00% respectively in comparison 8 to petitioner no. 3 and 6, namely Sangeeta Kumari and Sanju Kumari having only 62.3.% and 62.55% marks respectively. The submission of learned counsel for the petitioner that Lata Kumari had not produced the certificate relating to her matriculation is not supported from the official documents. Moreover in the panel prepared by the Panchayat it had contained the name of Lata Kumari with highest marks among all the candidates and as such she could not have been shown the door because she had even otherwise qualified against the first vacancy of general category. In such a situation, Learned counsel for the petitioners would seek leave of this Court to withdraw this application in order to enable petitioner nos. 3 and 6 to move before the District Teachers Appellate Authority. In case the petitioner nos. 3 and 6 would file their separate complaint as with regard to cancellation of their appointment, the Authority shall decide the issue on merits but only after giving notice to the complainant Rajeev Kumar, Kumari Priyanka Sinha and Lata Kumari. 9 As with regard to rest of the petitioner nos. 1, 2, 4, 5, and 7 it is not in doubt that they had qualified even in the model list prepared by the Officer holding inquiry and the same was also approved by the higher Authority. There being thus no flaw in their appointment and continuation as Shiksha Mitra, it does not stand to the reason as to why they should also have been removed from service. Consequently the decision of termination of service in respect of petitioner nos. 1, 2, 4, 5 and 7 is hereby set aside and they are directed to be reinstated on the post of Panchayat Shikshak within a period of one month from the date of receipt/production of a copy of this order and the respondent no. 5, Panchayat Sachiv, Shreepur, P.S Belaganj, District Gaya is hereby directed to ensure that not only the joining of petitioner nos. 1,2,4,5 and 7 is accepted but their current remuneration from the date of submission of their joining is paid to them. It is made clear that the petitioners 1, 2, 4, 5 and 7 will not be entitled for any payment of arrear of salary for interregnum period as was also held in the case of Awadesh Prasad (supra) relied upon by 10 the counsel for the petitioner himself. With the aforementioned observation and direction, this application is disposed of. Ranjan (Mihir Kumar Jha, J.)