IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6174 of 2008 CHANDRADEO PRASAD, SON OF SRI RANGLAL PRASAD, RESIDENT OF VILLAGE-SISAI, TOLA- BHATWALIA, P.O. SISAI, P.S. BHORE, DISTRICT- GOPALGANJ …….. ………………PETITIONER. Versus 1. THE STATE OF BIHAR through the Commissioner-cum- Secretary, Human Resources Development Department, Bihar, Patna. 2. Commissioner-cum-Secretary, Human Resources Development Department, Bihar, Patna. 3. Director, Primary Education, Human Resources Development Department, Bihar, Patna. 4. District Magistrate, Gopalganj. 5. Block Development Officer , Bhore, District-Gopalganj. 6. Block Education Extension Officer, Bhore, District-Gopalganj. 7. Panchayat Secretary, Gram Panchayat Raj, Sisai, P.O. Sisai, P.S. Bhore, District-Gopalganj. 8. Mukhiya, Gram Panchayat Raj Sisai, P.O. Sisai, P.S. Bhore, District-Gopalganj. ……….. ………… Respondents. ----------- For the petitioner: Mr. Y. V. Giri, Sr. Advocate Mr. Raju Giri, Advocate For the state: Mr. Madhura Nand Jha, Asstt. Counsel to AAG-7 2. 21.07.2009 Heard learned counsel for the petitioner and the counsel appearing for the state. Petitioner is aggrieved by the order passed by the Collector, Gopalganj. His prayer is for quashing the order dated 14.2.2008 passed by Collector, Gopalganj in Miscellaneous Case No. 123/07 cancelling his initial engagement on the post of Panchayat Shikcha Mitra in Gram Panchayat Raj Sisai and directing the Mukhiya of Gram Panchayat to cancel petitioner’s appointment on the post of Panchayat Shikcha Mitra. Petitioner 2 has further prayed for quashing the order contained in Memo No. 01 dated 03.03.2008 passed by the Mukhiya of Gram Panchayat Raj Sisai in pursuance of the Collector’s order, cancelling petitioner’s appointment on the post of Panchayat teacher. Impugned orders have been challenged by the petitioner on the ground that these orders have been passed in violation of the rules of natural justice, as well as are illegal, arbitrary and without jurisdiction. Petitioner, a scheduled caste candidate, applied for his engagement as Panchayat Shikcha Mitra in the year, 2005. He had applied against the post reserved for scheduled caste candidate. Since the petitioner had qualification of intermediate, he was given weightage of 17 points. Though the petitioner had applied against reserved post of scheduled caste candidate but considering his higher points, he was appointed against the unreserved post. One Harendra Prasad having 14 points weightage, was appointed against the reserved post for scheduled caste candidate. The engagement of Panchayat Shikcha Mitra in the year, 2005 in Sisai Gram Panchayat Raj was challenged by the unsuccessful candidates by filing application before the Collector and subsequently, writ applications were also filed challenging engagement on the post of Panchayat Shikcha Mitra. in this court. All those writ applications were heard and disposed of by a common order whereby the Collector, Gopalganj was directed to inquire into the matter and pass order 3 in accordance with law. In the light of the direction issued in the writ applications, the Collector, Gopalganj passed order in Miscellaneous Case No. 123/07, which has been assailed by the petitioner on the ground that his legal right has been taken by the impugned order in violation of rules of natural justice as he was neither impleaded as party in Miscellaneous Case nor given any opportunity to file show cause and defend his case. Application filed before the Collector numbered as Miscellaneous Case No. 123/07 has been annexed with the writ application. On perusal of this application, submission made on behalf of the petitioner regarding non-inclusion as party finds support. Only Mukhiya, Secretary, and the District Superintendent of Education were impleaded as parties. Since petitioner was not a party, he was not noticed and order was passed behind his back, taking away his valuable right of being appointed on the post of Panchayat teacher. The impugned order is held illegal, arbitrary and without jurisdiction on this count and it is quashed. Other ground taken by the petitioner is that the merit list prepared by the Selection Committee, approved by the Block Development Officer and the Collector indicate that in case petitioner’s appointment could have been held illegal. This is a fact that petitioner had applied for the post of Urdu Teacher, in reserved category of scheduled caste. However, he was appointed against unreserved post, on consideration of his merit. In case his appointment against unreserved post is 4 irregular/illegal, in that case, considering his merit, he could have been appointed against reserved post for scheduled caste. Harendra Prasad, appointed in reserved category (SC) had only 14 points, and his appointment should have been cancelled. Further it has been submitted that the Collector has exceeded his jurisdiction by directing the Mukhiya to cancel petitioner’s absorption on the post of Panchayat Shikchak for the reason that his absorption under rule 20 of Bihar Panchayat Teacher (Appointment and Service Condition) Rule, 2006, on account of working on the post of Panchayat Shikcha Mitra. Petitioner was working as Shikcha Mitra at the time of his absorption on the basis of third engagement, which was not under challenge. Petitioner’s engagement as Panchayat Shikcha Mitra on the first occasion for eleven months was under challenge. Counsel for the petitioner has placed reliance on a decision reported in 2009(2) PLJR 929, especially on paragraphs-11 & 12 of the decision. Counsel for the petitioner submits that the facts in the reported decision in the case of petitioner are similar, as such fully applicable in the case. I find substance in the submission made by the petitioner. The order passed by the Collector, Gopalganj is fit to be quashed on all three counts on which the order has been assailed by the petitioner. It is illegal, arbitrary for the reason that Binod Mishra’s complaint was not against petitioner’s second and 5 third engagement as Panchayat Shikcha Mitra. Each engagement on the post of Panchayat Shikcha Mitra is an independent engagement for 11 months. Second and third occasion, when the petitioner was engaged on the post of Panchayat Shikcha Mitra , Binod Mishra had not applied for the post. Petitioner’s absorption on the post of Panchayat teacher was consequential of his remaining on the post on 01.07.2006, due to his third engagement as Panchayat Shikcha Mitra.. Since this engagement was not under challenge, the Collector should not have passed any order relating to petitioner’s absorption on the post of Panchayat Shikchak. Collector’s direction to cancel all consequential benefits, including his absorption as Panchayat teacher on the basis of his engagement as Panchayat Shikcha Mitra, suffers from jurisdictional error and fit to be quashed. Accordingly, the impugned order dated 14.02.2008 passed by the Collector, Gopalganj in Misc. Case No. 123/07 as well as order dated 03.03.2008 contained in Memo No. 01 issued by the Mukhiya, Gram Panchayat Raj Sisai cancelling petitioner’s appointment is quashed. The respondents are directed to reinstate the petitioner on the post with all consequential benefits, which includes his arrears of salary for the period 10.05.2006 to 31.06.2006 and 01.10.2007 to 10.03.2008. akv/ ( Mridula Mishra, J )