IN THE HIGH COURT OF JUDICATURE AT PATNA LETTERS PATENT APPEAL No.44 of 2011 IN CWJC No. 11123 of 2010 ============================================= VINAY KUMAR VINAY - Appellant (s) Versus THE STATE OF BIHAR & ORS. - Respondent(s) ============================================= Appearance: For the Appellant : Mr. ASHOK KUMAR For the Respondent No. 12: Mr. UMESH KUMAR MISHRA ============================================= CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 03. 23.02.2011 Feeling aggrieved by the judgment and order dated 9th November 2010 passed by the learned Single Judge in above C.W.J.C. No. 11123 of 2010, the petitioner no. 1 has preferred this Appeal under Clause 10 of the Letters Patent. The matter at issue is the appointment of the appellant as Panchayat Teacher in upgraded middle school, Sakri made on 30th March 2010 by the Panchayat Secretary, Gram Panchayat Raj Mirjumla, Anchal-Bhagwanpur Hat, District- Siwan. The respondent no. 12 Nand Lal Prasad challenged the appointment of the appellant and others before the appellate authority (hereinafter referred to as “the Authority) constituted under Rule 18 of Bihar Panchayat Elementary Teachers Selection and Service Condition Rules, 2006 (hereinafter referred to as ‘the Rules of 2006’). According to the respondent 2 no. 12, he having secured more marks at the graduation examination, he should be placed in the merit List above the selected candidates. The appeal was contested by the writ petitioners. According to the writ petitioners, in case of equal points, the candidate older in age shall be placed above the younger candidates. The Authority, under its order dated 1st April 2010, held that the Mukhiya, Gram Panchayat Raj, Mirjumla had no authority to select teachers for the Prakhand Schools. The selection of the appellant and others was, therefore, bad and illegal. In view of the said finding, the Authority allowed the appeal preferred by the respondent no. 12 and set aside the appointment of the appellant and others. Feeling aggrieved the appellant and the others filed above C.W.J.C. No. 11123 of 2010 under Article 226 of the Constitution. The learned Single Judge was pleased to hold that in the matter of appointment of Panchayat Teachers, every thing being equal the person having more marks in the qualifying examination shall be preferred. The learned Single Judge also observed that in view of the Government Circular dated 31st July 2008, weightage and the qualification being the same the age would be the criteria. Considering the said Circular the learned Single Judge has held; “…….In my view, the rationale of the Government Circular is that the weightage point being the same, persons having better academic qualification which would include higher educational qualification or better 3 marks with some educational qualification, would be more qualified. The question of age would come thereafter if the position is not reconciled……...” In view of the said finding the learned Single Judge was pleased to set aside the order of the Authority and to remand the matter to the Authority to decide the matter afresh after perusing the merit list and the direction and observation made in the order. Feeling aggrieved the petitioner no. 1 has preferred the present Appeal. The facts not in dispute are that the selection procedure of the appellant and others was commenced in the year 2005 for the post of Shiksha Mitra. Pending the process for selection the Government of Bihar enacted the Bihar Panchayat Raj Act, 2006. Under the said Act the Government of Bihar framed the Rules of 2006. Under Rule 20 of the Rules of 2006, the rules prevailing on the date of the Rules of 2006 in respect of the Elementary Teachers, Physical Education Teachers, Panchayat Shiksha Mitra and any order/instruction issued thereunder stood repealed. Clause (ii) of the said Rule 20 provides that any appointment of a teacher made under the repealed rules, instructions, orders etc. shall not be affected by the repeal of the rules. In our opinion, the said Rule 20 saved the appointment already made. However, the selection procedure which was commenced prior to the Rules of 2006 but 4 was not completed was not saved. In that view of the matter, after the date of the Rules of 2006 the Gram Panchayat could not have proceeded further with the selection process of Shiksha Mitra. A fresh selection process ought to have been initiated under the Rules of 2006. Besides, under Rule 9 of Rules of 2006 two distinct Selection Committees are constituted for the purpose of appointment of Prakhand Shikshak and of Panchayat Shishak. It is not in dispute that since 2009, the school at Sakri was upgraded as a Prakhand school. Once it was upgraded as a Prakhand school, the Selection Committee constituted in consonance with Rule 9 of the Rules of 2006 alone could have made the selection and appointment of Prakhand teachers. The selection made by the Mukhia of the Gram Panchayat was ex- facie without the authority of law, bad and illegal. In above view of the matter, we are of the opinion that the Authority was right in holding that the appointment of the writ petitioners was made without the authority of law and was null and void. The Authority rightly set aside the appointment of the writ petitioners. Though the learned Single Judge has considered the appointment of Shiksha Mitra and their position under the Rules of 2006; has noted that the school was upgraded in the year 2009, has failed to advert to the constitution of Selection Committee under Rule 9 of the Rules of 2006. In our opinion, as the appointment of the writ 5 petitioners was rightly cancelled, the order did not call for interference; nor was the matter required to be remanded to the Authority. For the aforesaid reasons, we allow this Appeal. The impugned judgment and order dated 9th November 2010 passed by the learned Single Judge is set aside. In view of the reasons recorded hereinabove, C.W.J.C. No. 11123 of 2010 stands dismissed. S.Sb/- (R.M. Doshit, CJ.) (Jyoti Saran, J.)