IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4039 of 2007 RIMA KUMARI, wife of Sri Arvind Singh, resident of village Pipra Khem, P.S. Kalayanpur, District East Champaran ... Petitioner Versus 1. THE STATE OF BIHAR 2. The Collector, East Champaran, Motihari 3. The Sub-divisional Officer, Chakiya, East Champaran 4. The Block Development Officer, Kalayanpur, East Champaran 5. The District Superintendent of Education, East Champaran, Motihari 6. The Block Education Extension Officer, Kalayanpur Block, East Champaran 7. The Mukhiya, Pipra Khem Panchayat, Kalayanpur Block District East Champaran 8. The Panchayat Secretary, Pipra Khem Panchayat, Kalayanpur, District East Champaran 9. Suresh Prasad, son of Sri Lalji Sah, village Dhruw Pakri, P.S. Kalayanpur, District East Champaran ... Respondents ----- For the Petitioner: Mr. Ganesh Pd. Singh,Sr.Adv. & Mr. Manish Kumar, Adv. For the State : Mr. Nirmal Kumar, G.P.IV For respondent no.9:Mr. Raghwanand, Adv. & Mr. Ranjeet Kumar No.2, Adv. ----- PRESENT HON'BLE MR. JUSTICE MIHIR KUMAR JHA O R D E R (4.10.2010) Mihir Kr. Jha,J. Having heard counsel for the parties as with regard to the following relief: “This is an application for issuance of an appropriate writ, order or direction commanding the respondents to appoint the petitioner on the post of Siksha Mitra in Pipra Khem Panchayat in place of respondent no.9 whose appointment has been cancelled by the enquiry Officer/ respondent no.4 and selected the petitioner for appointment under the reserved seat for general woman and/or further writ or direction 2 commanding the respondent to give the joining letter to the petitioner and treat her in service w.e.f. 14.2.2006 as the enquiry officer has found in enquiry that the respondent no.9 has illegally been appointed in the reserved general woman seat though he comes from male most backward class.” while this Court is of the considered opinion that upon abolition of the post of Shiksha Mitra in terms of the Government policy and enforcement of Bihar Panchayat Prarambhik Shikshak (Niyojan Awam Seva Sarta) Niyamawali, 2006 no writ of mandamus can be issued for appointing the petitioner on the abolished post of Shiksha Mitra. Admittedly the petitioner was not appointed as Shiksha Mitra prior to 30.6.2006 and therefore, her absorption on the post of Panchayat Shikshak in terms of Rule 20(iii) of 2006 Rules reading as follows: ^^ijUrq bl fujlu ds gksrs gq, Hkh iwoZ ds fu;ekoyh] ladYi] vkns'k”] vuqns'k” vkfn ds rgr fu;qDr f'k{kdksa ds osrukfn ,oa lsok ”'kRRkksZ ij bldk izHkko ugha iM+sxk A**” is not possible. The prayer of the petitioner to that extent must be rejected. The other part of the grievance of the petitioner is pertaining to illegal selection of respondent no.9 about whom it has been claimed that even when he had secured lesser marks in the qualifying examination, he was favoured by 3 the Mukhiya while eliminating more meritorious candidates including the petitioner securing higher marks. This part of the assertion of the petitioner in paragraph no.16 of the writ petition reads as follows: “That it is stated and submitted that the respondent has obtained total 455 marks in the I.A. examination and the petitioner obtained total 530 marks in the I.A. examination but the same was not considered and illegally appointed the respondent no.9 in place of the petitioner by way of manipulating in the application form by the respondent Mukhiya and Secretary.” There is no counter affidavit on behalf of any of the respondents and the counsel appearing on behalf of respondent no.9 also does not dispute that the marks secured by respondent no.9 in the qualifying examination as disclosed in the writ application was 455 as against the petitioner’s marks of 530. Counsel for respondent no.9, however, has tried to explain that whereas the petitioner belongs to general category, respondent no.9 is of OBC category and therefore, his such selection and appointment despite having secured lower qualifying marks was justified. Counsel for respondent no.9 in this regard has further explained that owing to an allegation made by the petitioner, the 4 appointment of respondent no.9 on the post of Shiksha Mitra was cancelled by the Block Development Officer by an order dated 1.4.2008 but the said order was set aside by this Court in C.W.J.C.No. 18513/2008 and therefore, the order of appointment of respondent no.9 has now become valid and legal in view of the order of this Court in C.W.J.C.No. 18513/2008. He would, therefore, submit that there would be no need to go into the question of further enquiry in the allegation made by the petitioner as with regard to anomaly/ illegality in the appointment of respondent no.9. He has further submitted that the District Teachers Appellate Authority created under Rule 18 of 2006 Rules can look into only the complaints arising out of selection and appointment of Panchayat Shikshak and not on the post of Shiksha Mitra and therefore, no one can now be directed to examine the alleged illegality in the selection and appointment of respondent no.9 on the post of Shikshamitra. In the opinion of this Court first of all neither the order of the learned Single Judge dated 17.3.2009 quashing the order of cancellation of appointment of respondent no.9 5 in C.W.J.C.No. 18513/2008 would not take away the jurisdiction of the District Teachers Appellate Authority to look into the alleged illegalities in appointment of respondent no.9 nor there would be any concept of ratification or merger of the order of appointment of respondent no.9 in the order of this Court dated 17.3.2009. The order of this Court dated 17.3.2009 basically goes to show that since this Court had found that the order of cancelling appointment of respondent no.9 was passed in violation of the principles of natural justice, without giving any show cause notice and/or opportunity of hearing to the Respondent no. 9 this Court had found such order to be unsustainable. It is true that this Court had also held that after respondent no.9 had become Panchayat Shikshak, the Block Development Officer had no power to cancel the appointment and thereby had set aside the impugned order terminating the services of respondent no.9 also on the ground of jurisdiction. The learned Single Judge in this regard had also recorded that since the B.D.O. in the impugned order has directed for appointment of the petitioner of this case as a 6 Panchayat Shikshak in place of respondent no.9 such order was not sustainable. While this Court would find all the three grounds good enough for setting aside the order cancelling the appointment of respondent no.9 but then it would not be still in a position to accept the submission of the learned counsel for the petitioner that the authorities after enforcement of 2006 Rules will be rendered functus officio so as to look into any illegality committed in engagement of Shiksha Mitra who has now by virtue of mere continuance on the post of Shiksha Mitra as on 30.6.2006 could become a Panchayat Shikshak in terms of Rule 20(ii) of 2006 Rules. This Court would in this regard find that Rule 18 of the Rules either framed originally in 2006 or its amendment introducing concept of District Teachers Appellate Authority in the year 2008 was/is for a sanguine purpose of examining complaint arising of employment of Panchayat Shikshak. To that extent the provisions of Rule 18 as is originally stood on 1.7.2006 reads as follows:- ^^18- f'kdk;r bl fu;ekoyh ds v/khu iz[k.M f'k{kdksa ds fu;kstu LFkkUrj.k vFkok lsok laca/kh ekeyksa esa fdlh izdkj dh f'kdk;r ij fu.kZ; ysus dh 'kfDr mi fodkl vk;qDr dks gksxh rFkk iapk;r f'k{kd ds ekeys esa iz[k.M fodkl inkf/kdkjh dks gksxhA** 7 The aforesaid Rule 18 was amended and replaced on 25.8.2008 wherein it was provided that:- ^^bl fu;ekoyh ds v/khu fu;kstu ls lEcfU/kr vihy lquus dh ”'kfDr ftyk Lrj ij ljdkj }kjk xfBr ,d ;k ,d ls vf/kd lnL;ksa dh izkf/kdkj dks gksxh A ekuo lalk/ku fodkl foHkkx ds }kjk izkf/kdkj dh LFkkiuk ,oa lsok ”'kRrksZ dk fu/kkzZj.k fd;k tk;sxk A vihyh izkf/kdkj dk xBu lsok fuo`r fcgkj U;kf;d lsok] Hkkjrh; iz'kklkfud lsok] fcgkj iz'kklfud lsok] fcgkj f'k{kk lsok ds inkf/kdkfj;ks ,oa f'k{kkfonksa ls fd;k tk;sxk A**” From a bare perusal of the aforementioned Rules it would, therefore, be clear that the internal remedy for looking into the matter relating to employment (Niyojan) under the Rules was made the subject matter and the employment under these Rules on the post of Panchayat Shikshak had two concepts, namely, by direct appointment and the other by way of absorption. That is how Rule 20(iii) will have to be understood. Therefore, if any person who was illegally appointed as Shiksha Mitra and was absorbed under a deeming provision of Rule 20(iii) on account of his/her continuance as on 30.6.2006, can not remain immune from scrutiny of his selection and appointment on the post of Shikshamitra. If such submission of the learned counsel for the Respondent no. 9 is accepted it would mean a person illegally appointed as Shikshamitra even on 29.6.2006 and thus 8 continuing on 30.6.2006 and absorbed as Panchayat Shikshak would become entitled to retain his such illegal appointment as neither the Collector of the District nor the Appellate Authority will have the jurisdiction to cancel his such illegal appointment. Such absurd interpretation of Rule 20(iii) of 2006 Rules however can be safely avoided by giving the true meaning of the word ^^fu;kstu** which would in its fold embrace both the direct recruitment as also absorption on the post of Shikshamitra. Thus it would not be correct to say that the anomaly or illegality committed in such appointment on the post of Shiksha Mitra cannot be gone into by the District Teachers Appellate Authority. As a matter of fact this aspect has also been clarified by the State Government by a Circular dated 14.5.2009 which reads as follows:- fcgkj ljdkj ekuo lalk/ku fodkl foHkkxA izs"kd vatuh dqekj flag ljdkj ds iz/kku lfpoA lsok esa] lHkh lnL; ftyk f'k{kd fu;kstu vihyh; izkf/kdkjA iVuk] fnukad 14-05-09 fo"k;& f'k{kk fe=ksa ds fu;kstu esa lacaf/kr yafcr vihy@f'kdk;r ds fu"iknu ds laca/k esA egk'k;] mi;qZDr fo"k; ds laca/k esa dguk gS fd ekuuh; mPp U;k;ky;] iVuk }kjk f'k{kkfe=ksa ds fu;kstu ls lacaf/kr vihy@f'kdk;r ls lacaf/kr ^^cap ekeyksa** esa fnukad 17-02-09 dks ikfjr vkns'k ,oa dqN vU; leku ekeyksa esa ikfjr vkns'k esa ;g U;k; fu.kZ; fn;k x;k gS fd f'k{kk 9 fe=ksa ds fu;kstu ls lacaf/kr vihy ds ekeys dk fu"iknu ftyk f'k{kd fu;kstu vihyh; izkf/kdkj ds }kjk fd;k tk;sxkA foHkkx }kjk bl lEcU/k esa ^^fof/k foHkkx** ls Hkh ijke'kZ izkIr fd;k x;k gSA ekuuh; mPp U;k;ky; }kjk fofHkUu oknksa esa ikfjr vkns'k rFkk ^^fof/k foHkkx** ls bl laca/k esa izkIr ijke'kZ ds vkyksd esa dguk gS fd f'k{kk fe=ksa ds fu;kstu ls lacaf/kr vihy@f'kdk;r dk fu"iknu vc ftyk f'k{kd fu;kstu vihyh; izkf/kdkj ds }kjk fd;k tk;sxkA bl lEcU/k esa iwoZ esa fuxZr ifji= ,oa foKfIr ftlesa ftyk inkf/kdkjh dks ,sls ekeys dh lquokbZ dj fu"iknu djus dk funs'k fn;k x;k Fkk] dks bl gn rd la'kksf/kr fd;k tkrk gSA fo'oklHkktu g0@& ¼vatuh dqekj flag½ ljdkj ds iz/kku lfpoA In that view of the matter, the submission of the learned counsel for respondent no.9 that since the petitioner has also filed a Letters Patent Appeal, L.P.A.No. 698/2009 against the order of the learned Single Judge allowing the writ petition of respondent no.9, in C.W.J.C.No. 18513/2008, the same would stand in the way of the petitioner in seeking a direction in this case for examining his complaint with regard to illegality committed in the appointment of respondent no.9 on the post of Shikshamitra by the District Teachers Appellate Authority, has only to be noted for its being rejected. The appointment of respondent no.9 as held above can still be looked into by the District Teachers Appellate Authority and whether he belongs to general category or appointment which was sought to be made for OBC category or whether his lower marks were good enough for his appointment in 10 preference to the petitioner can still be gone into by the Authority for finding out as to whether respondent no.9 was the best candidate on the date he was engaged as Shiksha Mitra. True it is the petitioner can not be appointed on the resultant vacancy on account of abolition of the post and to that extent also rightly held in the order of this Court dated 17.3.2009 in C.W.J.C.No. 18513/2008 but then he must have at least that right to get it decided whether a person like the Respondent no. 9 having allegedly lesser merit and marks was sought to be accommodated by the efforts of Mukhiya on the post of Shiksha Mitra which in turn could become a boon for him for his conversion/ absorption on the post of Panchayat Shikshak. If the submission of the learned counsel for respondent no.9 is accepted that no enquiry can be held as against Shiksha Mitra who has been absorbed on the post of Panchayat Shikshak, it would only amount to either perpetuating the fraud or illegality which cannot be object of any Rule. Rule 18, therefore, would be squarely applicable even in respect of such Shiksha Mitra who later on had been absorbed on the post of Panchayat Shikshak in terms of Rule 20. 11 This Court would, therefore, give liberty to the petitioner to approach the concerned District Teachers Appellate Authority by raising the issue of illegality in appointment of respondent no.9 and the Authority after giving opportunity of hearing to the petitioner and respondent no.9 shall take its independent decision within a period of six months of filing of such representation by the petitioner enclosing a copy of this order. It is, however, made clear that the Authority shall not be guided by any observation or finding given in this order which has been only recorded by way of answering the submission of the learned counsel for respondent no.9 that the Authority under 2006 Rules will have no jurisdiction to go into the question of validity of appointment of a Shiksha Mitra, who has been absorbed on the post of Panchayat Shikshak. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) PATNA HIGH COURT Dated the 4th Oct.,2010 A.F.R./Surendra