IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10073 of 2006 AMRENDRA KUMAR, SON OF LATE BHAGBAT PRASAD RESIDENT OF VILLAGE KUMHARSO POST OFFICE KUMHARSO POLICE STATION GARHPURA DISTRICT BEGUSARAI --------- PETITIONER Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY, PRIMARY EDUCATION, BIHR, PATNA 2. THE DISTRICT MAGISTRATE, BEGUSARAI 3. THE DISTRICT SUPERINTENDENT OF EDUCATION CUM- CORDINATOR DISTRICT MASS EDUCATION PROGRAM, BEGUSARAI 4. THE BLOCK DEVELOPMENT OFFICER, GARHPURA BLOCK, DISTRICT BEGUSARAI 5. THE AREA EDUCATION OFFICER, CHERIYA BARIYARPUR, DISTRICT BEGUSARAI 6. THE BLOCK EDUCATION EXTENSION OFFICER, GARHPURA DISTRICT BEGUSARAI 7. THE SECRETARY, GRAMPACNHAYAT RAJ KUMHARSO BLOCK GARHPURA, DISTRICT BEGUSARAI 8. SRI AMAN KUMAR SON OF SRI BISHWANATH CHOUDHARY RESIDENT OF VILLAGE- KUMHARSO, POST OFFICE KUMHARSO POLICE STATION GARHPURA DISTRICT BEGUSARAI------RESPONDENTS. ----------- For the petitioner :- Mr. Ram Suresh Roy & Sasidhar Jha,Advocates 9 29 .01.2010 Petitioner has filed this application for cancelling of appointment of Sri Aman Kumar (Respondent no.8), appointed on the post of Shiksha Mitra by the Secretary of Kumaharso Gram Panchayat Raj. The appointment of respondent no.8 was challenged by the petitioner on the ground that without following the guidelines for appointment of shiksha mitras, Respondent no.8 was appointed, 2 ignoring the eligibility of the petitioner, having highest marks as per the panel prepared for the post of Panchayat Shiksha Mitra. A notice was published for selection of Shiksha Mitra by the Gram Panchayat Raj, Kumaharso and the petitioner had submitted his application for the post on 13.5.2005. Petitioner’s case is that in the panel of backward class candidate, petitioner’s position was highest, having highest marks in the Intermediate examination but instead of petitioner respondent no.8 was selected. Petitioner represented his case before the District Superintendent of Education, Begusarai, who was the convener of the Programme, challenging the illegality committed by the Sukh Suvidha Committee in appointment of Panchayat Shiksha Mitra. An inquiry was conducted by Area Education Officer, Cheria Bariyarpur, in respect of alleged illegality and vide letter contained in 3 memo no. 96 dated 25.4.2006 a report was submitted before the District Superintendent of Education, recommending to cancel the appointment of respondent no.8 and to issue appointment letter in favour of the petitioner. Petitioner had also submitted his representation before the District Magistrate, Begusarai on 27.4.2006 for issuance of a direction to the concerned authority, not to send the respondent no.8 for training. Petitioner’s grievance is that the authorities instead of redressing the genuine grievance of the petitioner; allowed respondent no.8 to continue on the post. In the given circumstance, having no remedy available, the writ application was filed by him. Counter affidavit has been filed on behalf of respondent no.8 bringing this fact to the notice of this Court that during the pendency of the writ application Sukh Suvidha Committee, re-examined the appointment of 4 respondent no.8 and considering the provision under Bihar Panchayat Primary Teachers Appointment Rule, 2006, for appointment of Panchayat Teachers, which came into force on 1.7.2006, appointment of respondent no.8 was cancelled on the ground that petitioner had higher percentage of marks in Intermediate. The case of respondent no.8 is that the process of appointment completed in the month of February, 2006, considering the relevant regulation relating to appointment of Shiksha Mitra. The guideline for appointment of Panchayat Shiksha Mitra dated 11.8.2004 indicated that weightage would be given to the candidates for marks obtained by them. A candidate having marks in the bracket of 30- 60% were given 10 marks’ weightage, marks obtained in between 60-75% were given 15 marks weightage and the candidates having marks obtained above 75% were given 20 marks weightage. Petitioner as well as 5 respondent no.8 both had marks, which fell in the bracket of 60-75%, as such both were allowed 15 weightage marks. In case, two candidates had similar marks the priority was to be given to a candidate who has either higher qualification, or have obtained training from a recognized Institute. In case i.e. not there, then a candidate senior in the age will be given priority. Petitioner and respondent no.8, none of them had higher qualification or training from recognized institution. The respondent no.8 was appointed as he was senior in age, as all other qualifications were similar. The respondent’s counsel has submitted that higher marks in Intermediate could not have been a ground for cancelling the appointment of respondent no.8, as the Intermediate marks were to be answered by putting it in a bracket as per the guidelines and on that basis weightage were given to the candidates. The appointment of respondent 6 no.8 was cancelled, applying subsequent Rule of 2006, but petitioner was not allowed to join on the post, as such even after cancellation of his appointment, respondent no.8 continued on the post. Counsel for the petitioner submits that the resolution dated 20…6.2002 relating to appointment of Panchayat Shiksha Mitra published in Bihar Gazette dated 20.6.2002 and resolution vide Memo no. 1450 dated 11.8.2004, did not contain any condition for giving preference on the basis of the date of birth, in case of equal weightage. It only contained that candidates having higher qualification should be given preference. Since petitioner had more marks in the Intermediate examination, it was rightly considered as higher qualification by the Sukh Suvidha Committee and subsequently selection of respondent no.8 was cancelled. I do not find much substance in the 7 submission of the petitioner’s counsel. Higher qualification cannot be decided on the basis of higher marks in the Intermediate. As per the guidelines, the Intermediate marks were put in three slabs and weightage were provided for them. Higher qualification would mean, candidates having qualification more than Intermediate or being a trained candidate. Petitioner did not have higher qualification. In the given circumstance the selection of respondent no.8 had rightly been done by the respondent, considering his seniority in age. In all appointments this practice is followed, where two candidates are equally qualified then selection is made, considering seniority in age. Though, guideline of 2002 and 2004 relating to Panchayat Shiksha Mitra’s appointment was silent on this point but for deciding this issue priority will have to be given to a candidate who is senior in age, following the prevalent procedure in this 8 regard. Subsequent decision of the Sukh Suvidha Committee cancelling appointment of respondent no.8 was completely illegal and rightly it was not accepted and implemented by the Headmaster of the School. The respondent no.8 is now absorbed on the post of Panchayat Teacher, after coming into force of Bihar Panchayat Primary Teachers (Appointment & Service Condition) Rules, 2006. His selection and continuation on the post, after 1.7.2006 could not have been amended by Sukh Suvidha Committee, in the light of Rule 20 (i) of 2006 Rules which relates to repeal and saving. Rule 20 (i) provides that with effect from the date 2006 rules had come into effect, all previous rules, circulars, or ordinance, orders relating to appointment of teachers, physical teachers/ Panchayat Shiksha Mitra in rural areas will be deemed to have been repealed. Sub Rule (ii) provides that despite repeal of previous rules, resolutions, 9 orders, ordinances all appointments made under the previous rules will continue. In the facts and circumstances the prayer of the petitioner for a direction to select him on the post of Panchayat Shiksha Mitra and subsequently for a direction to the respondents to allow him to join the post as Panchayat Teacher cannot be allowed. Another reason for rejecting the prayer of the petitioner is that after 1.7.2006, post of Panchayat Shiksha Mitra has become non- existent and no direction can be issued for petitioner’s appointment on a non existing post. This application is dismissed. (Mridula Mishra,J.) A.Kumar