IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE NO.16559 OF 2009. SHEELA KUMARI,W/O ANIL SHARMA, R/O VILLAGE WAINA, P.S GHOSI IN THE DISTRICT OF JEHANABAD. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, DEPARTMENT OF HUMAN RESOURCES, GOVT. OF BIHAR, PATNA. 2.THE DIRECTOR, PRIMARY EDUCATION, GOVT. OF BIHAR, PATNA. 3.THE DISTRICT TEACHER EMPLOYMENT APPELLATE AUTHORITY ARWAL THROUGH ITS CHAIRMAN, ARWAL. 4.THE DISTRICT SUPERINTENDENT OF EDUCATION, JEHANABAD CUM ARWAL. 5.THE BLOCK EDUCATION EXTENSION OFFICER, KURTHA. 6.THE GRAM PANCHAYAT, PINJARAMA THROUGH ITS SECRETARY UNDER KURTHA BLOCK IN THE DISTRICT OF ARWAL. 7.THE PANCHAYAT SECRETARY, GRAM PANCHAYAT, PINJARAMA UNDER KURTHA BLOCK IN THE DISTRICT OF ARWAL. ………………………RESPONDENTS. ------------------ 04/ 09.12.2011 Having heard counsel for the parties and taking into account that the order terminating the services of the petitioner cannot be faulted either in fact or in law, inasmuch as, the petitioner does not possess the prescribed requisite qualification for the post of Prakhand Shikshak as mentioned in the Prakhand Shikshak Appointment Rules 2006, this court will have no option but to reject their prayer for reinstatement in 2 service. Mr. Ashok Kumar Chaudhary, learned counsel for the petitioner very fairly submits that the requirement under the Rules is of having undergone two years teacher’s training course but the petitioner had completed Nursery Teacher’s Training Course of one year duration. That being so, this Court cannot direct for reinstatement of the petitioner back in service if she does not possess the requisite qualification. Her such appointment in fact was void ab initio and has been rightly terminated. At this stage Mr. Chaudhary, would submit that the respondents, however, have not treated others on the same parameters and persons like Sangeeta Devi working in Primary School, Jagna Bigha and Md. Sohail working in middle School Kurtha, district Arwal even when they had also undergone only one year teacher’s training course like the petitioner, they have still been allowed to continue in service. As a matter of fact, this plea of discrimination was not raised by the 3 petitioner in the main writ application and was brought forward only by filing an Interlocutory Application, and persons named above are also not party to this writ application. Anything therefore, cannot be said by this Court as with regard to their alleged disqualification in their absence as it may prejudice them. The petitioner, therefore, is given liberty to approach the District Teachers Appellate Authority of Arwal district which will look into this aspect and after affording opportunity of hearing to the petitioners as also to the aforesaid persons namely Sangeeta Devi and Md. Sohail, will pass an order in respect of their continuation in service. The Authority shall keep in view that only on account of disqualification, the petitioner had to loose his job and that when the petitioner had approached the Authority, her complaint was also dismissed which order has now been affirmed while dismissing the writ application of the petitioner. The Authority will, therefore, carefully 4 decide this aspect if it finds either of them or both of them namely Sangeeta Devi and Md. Sohail suffer from the same disqualification of having undergone one year teacher’s training course, it must decide the issue in the similar manner as in the case of the petitioner. If the Authority, however, finds that the case of the petitioner was distinguishable and the two persons about whom the allegation has been made by her are not of the same category, it will also record its reasons for allowing them to continue in service. This exercise must be completed by the Authority within a period of six months from the date of filing of the complaint by the petitioner. Mr. Chaudhary, would submit that the respondents also have directed for making recovery of salary already paid to the petitioner for the period from 05.12.2006 till October 2008 on the ground of cancellation of her appointment. In this regard, he has submitted that whatever qualification was acquired by the petitioner was placed by her at the 5 time of her selection and appointment without any suppression and therefore, if she had not misrepresented as with regard to her educational qualification, she cannot be subjected to recovery of salary already paid to her in lieu of work done by her pursuant to the appointment letter issued to her. Counsel for the State has submitted that once it is found that the petitioner was not qualified for the post, she would not be entitled to retain the amount of salary and that the Authorities were absolutely justified in also directing for recovery of salary already made to the petitioner. In the considered opinion of this Court, if the respondents in the counter affidavit have not raised a plea of any fraud or misrepresentation played by the petitioner and her teachers’s training course of one year was not faulted, her resultant appointment leading to taking work from her and consequential payment of salary no recovery can be made from her as against salary paid to her which was given 6 to her for discharge of her duty on the post of Prakhand Shikshak specially when it is not the case of the respondents that the petitioner had not performed her duty on the post of Prakhand Shikshak. In that view of the matter, this court would modify that part of the impugned order passed by the Authority where the petitioner has been directed to refund the amount of salary paid to her for the period from 05.12.2006 till October 2008. It is however made clear that the petitioner will not be entitled for any further payment of salary for the period from 05.12.2006 till October 2008, beyond what has already been paid to her. With the aforementioned observation and direction, this application is disposed of. Ranjan (Mihir Kumar Jha, J.)