IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15691 of 2007 Raj Kumari Devi, wife of Madan Kumar, resident of village Khanethi, P.O. Baraura, P.S. Ramgarh, District Kaimur (Bhabhua) … Petitioner Versus 1. The Sate Of Bihar 2. The Secretary, Primary and Adult Education Department, Govt. of Bihar, Patna 3. District Magistrate cum Chairman, Sarb Shiksha Abhiyan, Kaimur (Bhabhua) 4. District Superintendent of Educations, Sub-divisional Education Officer/ District Program Co-ordinator, Sarb Shiksha Abhiyan, Kaimur (Bhabhua) 5. Block Development Officer, Ramgarh, P.S. Ramgarh, District Kaimur (Bhabhua) 6. Block Education Extension Officer, Ramgarh, P.S. Ramgarh, District Kaimur (Bhabhua) 7. Area Education Officer, Mohania, P.S. Mohania, District Kaimur (Bhabhua) 8. Sri Ashok Kumar Singh, Ex-mukhia, Gram Panchayat Raj Baraura, P.S. Ramgarh, District Kaimur (Bhabhua) 9. Mukhia, Gram Panchayat Raj Baraura, P.S. Ramgarh, District Kaimur (Bhabhua) 10. Panchayat Sevak cum Secretary, Gram Panchayat Raj Baraura, P.S. Ramgarh, District Kaimur (Bhabhua) 11. Daya Shankar Choudhary son of late Swami Nath Choudhary, resident of village Atadih, P.O. Baraura, P.S. Ramgarh, District Kaimur (Bhabhua) … Respondents ---------------------------------- 2. 2.12.2011 Heard counsel for the parties. The petitioner in this writ application has assailed the order passed by the Collector of Kaimur (Bhabhua) District dated 1.10.2007 as also consequential order dated 16.10.2007 passed by the Mukhiya of Gram Panchayat Baraura whereby and whereunder the services of the petitioner on the post of Panchayat Shiksha Mitra (Panchayat Shikshika) has been cancelled with a consequential direction to appoint respondent no.11 on whose complaint against the appointment of the petitioner such an order has been passed. The petitioner has also prayed for consequential 2 relief for being reinstated in service with all benefits. Mr. Kamal Nayan Choubey, learned Senior counsel for the petitioner, has firstly submitted that the order passed by the Collector of Bhabhua District as against the petitioner holding the post of Panchayat Shikshika as on 1.10.2007 is without jurisdiction, inasmuch as in Bihar Panchayat Prarambhik Shikshak (Niyojan Awam Sewa Sarta) Niyamawali, 2006 (hereinafter referred to as „the Rule, 2006) a Collector has been vested with no such power to either entertain the complaint in relation to any service condition of the Panchayat Shikshak and to that extent he has relied on Rule 18 of the Rules to contend that such power was vested either in the Block Development Officer or subsequently in the District Teachers Appellate Authority. Learned counsel for respondent no.11, on the other hand, while justifying the power and jurisdiction of the Collector of Bhabhua District would submit that as a matter of fact the petitioner is bound by an inter party order of this Court dated 9.7.2007 in C.W.J.C.No. 12706/2006 wherein after hearing the petitioner who was arrayed as respondent no.8 in that writ petition, this Court had authorized the Collector of the District to pass a final order on the complaint of the petitioner of that case, who is respondent no.11 in this case. He has further submitted that as a matter of fact the complaint of respondent no.11 against the petitioner was relating to her engagement on the post of Panchayat Shiksha Mitra in the year 2003 in which the Collector of the District had been specifically vested with the power by 3 Government Resolution No. 1458 dated 11.8.2004 and therefore, this Court taking into account the aforementioned Government circular and of course after hearing the petitioner of this case, who was respondent no.8 in that writ petition, had directed the Collector of the District to pass such an order and therefore, there would be no question of now allowing the petitioner to raise the question of jurisdiction. In the considered opinion of this Court the submission of counsel for respondent no.11 has to be accepted. The petitioner was said to be engaged as a Panchayat Shiksha Mitra on 11.2.2003 at a point of time when respondent no.11 was also an applicant for the said post and in fact having secured higher marks was a better candidate and yet was elbowed out by the Mukhiya, who had favoured the petitioner by appointing her even when she had not possessed the requisite qualification. Obviously such complaint against the selection and appointment of the petitioner having remained pending where he had already filed a writ petition and this Court had also issued notice to the petitioner of this case, who was respondent no.8 in that writ petition and the inter party order passed on 9.7.2007 while disposing of the writ application of respondent no.11 in the following terms: “Heard Mr. Virendra Prasad Verma for the petitioner, and Mr. Manikant Mishra, J.C. to G.P.21. Mr. Rewati Kant Raman, learned counsel is present on behalf of respondent no.8 (Raj Kumari Devi). The petitioner raises a grievance about the illegal 4 selection of respondent no.8 as Shiksha Mitra. Learned government pleader raises a number of objections including the maintainability of the writ petition on the ground that the tenure of the Shiksha Mitra has expired. The writ petition is disposed of with the liberty to the petitioner to file an appropriate representation before the District Magistrate, Kaimur (Bhabhua), who shall dispose of the same with a reasoned order within a period of four weeks from the date of submission of the representation. This direction is consistent with the order dated 18.5.2007 passed by a learned Single Judge of this Court in C.W.J.C.No. 8849 of 2006 (Kumari Lalita vs. State of Bihar & ors.) and the analogous cases. The writ petition is accordingly disposed of.” would clinch the issue as the impugned order has been passed by the Collector of the District on a direction given by this Court. The plea of jurisdiction, therefore, as raised by Mr. Choubey must be and is hereby rejected. Mr. Choubey then contended that the petitioner was already absorbed as a Panchayat Shikshak in view of Rule 20(iii) and her appointment could not have been disturbed by the Collector of the District even if her initial engagement on the post of Panchayat Shiksha Mitra was found to be illegal. To elucidate this aspect Mr. Choubey has contended that the petitioner was appointed as a Panchayat Shiksha Mitra on 2.3.2003 and had joined her duty on 10.3.2003 whereafter her first extension for the period of eleven months was given by an order dated 12.3.2004 5 and she was further given another extension for a period of eleven months by an order dated 2.4.2005 and finally her last extension of service was made on 23.2.2006 for a period of eleven months and it was during this extended period that she had been absorbed as a Panchayat Shikshak with effect from 1.7.2006 in terms of Rule 20(iii) of the Rules. Counsel for respondent no.11, on the other hand, has pointed out that the scheme of Panchayat Shiksha Mitra itself was only for a period of 33 months and the services of no one including petitioner could have been extended beyond a period of 33 months. In the considered opinion of this Court even this aspect of the matter has to be answered in favour of respondent no.11, inasmuch as the scheme of appointment of Panchayat Shiksha Mitra itself envisaged a selection and appointment only for a period of 11 months and allowing only two extensions and thus for a total fixed period of 33 months and not a day more as would be evident from the policy of the State Government notified by Resolution No. 1079 dated 20.6.2002, the relevant portion whereof reads as follows: Þ8- p;fur mEehnokjksa dks ftykf/kdkjh }kjk vuqeksfnr fu/kkZfjr bdkb;ksa ds v/khu vkj{k.k fu;eksa ds ikyu djrs gq, fuEu “kÙkksZ ds vUrxZr vuqca/k ij 11 ekg ds fy;s Þ xzke iapk;rÞ }kjk fu;ksftr fd;k tk ldsxk & ¼d½ fu;kstu vuqca/k ij gksxkA ¼[k½ vuqca/k vof/k] xzh’e vodk”k dks NksM+dj ekg gksxhA ¼x½ mDr vof/k ds fy, 1]500@& iUnzg lkS :I;k izfrekg ekuns; gksxkA ¼?k½ ekuns; dk Hkqxrku iz/kkuk/;kid @ iz/kku f”k{kd }kjk izfrgLrk{kfjr vuqifLFkfr fooj.kh ds vk/kkj ij iapk;r }kjk fd;k tk;sxkA ¼M-½ fo|ky; f”k{kk lfefr @ xzke f”k{kk lfefr @fujh{kh inkf/kdkjh dks vuq”kalk ds vkyksd esa iapk;r f”k{kk fe= 6 dks ,d i{k dh iwoZ fyf[kr lwpuk nsdj iapk;r }kjk fdlh Hkh le; mldk vuqca/k lekIr fd;k tk ldsxkA fdUrq vuqca/k lekfIr dk vkns”k fuxZr djus ds iwoZ xzke iapk;r dk vuqeksnu vko”;d gksxkA ¼p½ fo|ky; f”k{kk lfefr@xzke f”k{kk lfefr dh vuq”kalk ij lsok larks’ktud ik;s tkus dh fLFkfr esa iapk;r }kjk iapk;r f”k{kk fe= dks mlds }kjk vuqlwfpr ÞxÞ esa layXu izi= esa vkosnu nsus vksj vkj{k.k fu;eksa ds vuqlkj fjfDr miyC/k gksus ij vfrfjDr X;kjg ekg ds fy, iqu% vuqca/k ij fu;ksftr fd;k tk ldsxkA bl lanHkZ esa ;fn fujh{kh inkf/kdkjh dh dksbZ izfrdwy vH;qfDr izfrosfnr gks rks xzke iapk;r }kjk iqufuZ;kstu ds fu.kZ; ds iwoz ml ij lE;d~ fopkj fd;k tk,xk ,sls fu;kstu dh vof/k esa xzh’edkyhu vodk”k lfEefyr ugha gksxhA mi;qZDr “krksZ ds v/khu fdlh ,d f”k{kk fe= dks xzh’edkyhu vodk”kksa dks NksM+dj 11 ekg dh vof/k ds fy, vf/kdre 3 ckj ;kfu dqy vof/k 11 x 3 = 33 ekg ds fy, gh fu;ksftr fd;k tk ldsxkA ¼N½ jfookjh; jktif=r vodk”k ds fy, ekuns; dh dVkSrh ugha dh tk;sxhA vuqifLFkfr ds fy, ekfld ekuns; ds 1@30 ds cjkcj jkf”k izfrfnu ds fglkc ls ekuns; esa dVkSrh dh tk;sxhA ¼t½ iapk;r f”k{kk fe= vkSj iapk;r ds chp vuqlwph Þ[kÞ esa layXu izi= esa ,djkjukek fd;k tk;sxkAÞ (underlining for emphasis) As a matter of fact since the aforementioned Para 8 (ka) also refers to an "Anubandha" agreement to be executed between the Panchayat and the selected Panchayat Shiksha Mitra wherein Condition No.4 again categorically prohibits any extension beyond a period of 33 months from the original date of engagement, this Court would find it necessary to also quote Schedule Kh, the format of the agreement which reads as follows: Þvuqlwph Þ[kÞ xzke iapk;r ,oa iapk;r f”k{kk fe= ds chp ¼vuqca/k½ ,djkjukek dk izi= 1- ;g vuqca/k vkt fnukad --------------------------------------- dks Jh @ Jherh@lqJh ---------------------------------------------- vkRet@ifr -------------------------------------------- xzke --------------------- ------------ iapk;r ------------------------------------------------- ftyk ----------- ------------------- ,oa xzke iapk;r -------------------------------------------- ds chp fu’ikfnr fd;k tkrk gSA bl vuqca/k esa Jh Jherh@lqJh ------------------------------- vkxs dh dafMdkvksa esa izFke i{k ,oa xzke iapk;r -------------------------------------- f}rh; i{k ds :i esa ukfer gksaxsA 2- izfke i{k dks okafNr ;ksX;rk ,oa vgÙkkZ ds vk/kkj ij vkj{k.k fu;eksa dk ikyu djrs gq, f}rh; i{k }kjk iapk;r f”k{kk fe+= ds :I esa 11 ekg gsrq vuqca/k ij 7 fu;ksftr fd;k tkrk gSA 3- izFke i{k dks bl fufer ek= :0 1]500@& izfr ekg ekuns; vuqekU; gksxkA ekuns; dk Hkqxrku iz/kkuk/;kid }kjk izfrgLrk{kfjr vuqifLFkfr fooj.kh ds vk/kkj ij f}rh; i{k }kjk fd;k tk;sxkA 4- fo|ky; f”k{kk lfefr@xzke f”k{kk lfefr dh vuq”kalk ,oa fujh{kh inkf/kdkjh dh vH;qfDr ds vkyksd esa foÙkh; i{k }kjk vkj{k.k fu;eksa ds vuqlkj fjfDr miyC/k gksus ij izFke i{k dk X;kjg ¼11½ X;kjg ¼11½ ekg ds fy, vf/kdre nks ckj vuqca/k ij iqu% fu;kstu fd;k tk ldsxkA 5- jfookj ,oa jktif=r vodk”k ds fy, ekuns; dh dVkSrh ugha dh tk;sxh] fdurq vuqifLFkr fnuksa ds fy, ekfld ekuns; ds 1@30 ds cjkcj jkf”k izfrfnu ds fglkc ls dVkSrh dh tk;sxhA 6- fo|ky; f”k{kk lfefr @ xzke f”k{kk lfefr @ fujh{kh inkf/kdkjh dh vuq”kalk ds vkyksd esa ,d i{k dh iwoZ fyf[kr lwpuk nsdj f}rh; i{k }kjk fdlh Hkh le; vuqca/k lekIr fd;k tk ldsxkA 7- ;g vuqca/k xzke iapk;r ------------------------------- ds fnukad --- ---------------------------- dh cSBd ds }kjk ikfjr fu.kZ; ds vk/kkj ij fd;k tk jgk gSA 8- ;g vuqca/k fnukad ------------------------------------- ls fnukad -------- ---------------------------------- rd ds fy, izHkkoh gksxkA gLrk{kj ------------------ gLrk{kj ------------------ xzke iapk;r ds lfpo iapk;r f”k{kk fe=Þ (underlining for emphasis) In the background of the aforementioned scheme of Panchayat Shiksha Mitra if the admitted facts as placed by the petitioner herself in her supplementary affidavit in paragraph no.4 reading as follows: “ That it is stated that since petitioner has been discharging her duty since 10.3.2003, considering the satisfactory services rendered by her and taking into her qualification that she was became graduate, her service was extended for 11 months vide memo no.1(ka) dated 12.3.2004, considering the satisfactory services rendered by her and taking into her qualification that she has became graduate, her service was extended for 11 months vide Memo no. 585 dated 2.4.2005, considering the satisfactory services rendered by her and taking into her qualification that she has became graduate, her 8 service was extended for 11 months vide memo no.21 dated 23.2.2006, considering the satisfactory service rendered by her and taking into her qualification that she has became graduate, by virtue of the Bihar Panchayat Prarambhik Shikshak (Niyojan and Service Condition) 2006 she became Panchayat Shikshak on 22.1.2007 and since that day she has been discharging her duty as Panchayat teacher but without issuing any notice to show cause respondent no.3 by order dated 1.10.2007 asked the Mukhia to terminate her service who vide order dated 16.10.2007 terminated her from service.” is examined, the hollowness of her aforesaid claim gets exposed to the brink. The petitioner could not have been given the third extension in view of the scheme of Panchayat Shiksha Mitra and as such, when her period of 33 months even as per her own showing had expired on 1.3.2006 (in view of the last order of her extension dated 2.4.2005), this Court cannot accept the submission of Mr. Choubey that rightly or wrongly if the petitioner had got the extension of service on the post of Panchayat Shiksha Mitra on 23.2.2006, she will be deemed to be validly absorbed as a Panchayat Shikshak with effect from 1.7.2007. In the considered opinion of this Court such submission is infact one of desperation and has been noted only for its being rejected. It is well settled that no writ of mandamus cannot be issued to perpetuate an illegality. The Mukhiya of the Gram Panchayat had himself committed an illegality in first appointing the petitioner on the post of Panchayat Shiksha Mitra in the year 2003 even when the petitioner did not possess the 9 requisite qualification and also while ignoring better candidate in form of Respondent no.11 who had higher marks with the prescribed qualification. Later on if such Mukhiya had also acted contrary to the Government scheme by way of granting extension of tenure of service of the petitioner beyond a period of 33 months, this Court cannot uphold such illegal continuation of the petitioner on the post of Panchayat Shikshak on the basis of invalid and illegal last extension granted to her on 2.4.2005. The reason, therefore, given by the Collector of the District in support of the impugned order for termination of service of the petitioner is unquestionable and this Court does not find any flaw in the same. Having held so far in favour of the Respondent no. 11, this Court must note that the Collector of the District has however committed an error in directing appointment of respondent no.11 on the resultant vacancy caused by the termination of service of the petitioner on the post of Panchayat Shikshak. The vacancy which had taken place on the post of Panchayat Shikshak was one which had to be filled up as per new provision of 2006 Rules. The 2006 Rule envisages either direct appointment or absorption of the working Shiksha Mitra. Respondent no.11 was in neither category and as such his selection and appointment, could not have been made on the post of Panchayat Shikshak. The best that the Collector could have done was to direct the competent authority to start a fresh process of selection for appointment on the resultant vacancy caused by termination of service of the petitioner. This aspect of the matter in 10 fact had also been clarified by the State Government in its circular dated 10.11.2006 wherein the Collector of Kaimur District was specifically informed of the Government decision as with regard to no appointment to be made on the post of Panchayat teacher from a panel or selection process of the post of Panchayat Shiksha Mitra. The aforesaid Government letter dated 10.11.2006 reading as follows: Þi=kad 7@fo01&50@2006 ek0 1899 ekuo lalk/ku fodkl foHkkx] fcgkj izs’kd] v”kksd dqekj flag] funs”kd izk0 lsok esa ftyk inkf/kdkjh] dSewj A iVuk fnukad 10-11-06 fo’k; %& iapk;r f”k{kk fe= ds fu;kstu ds laca/k esaA egk”k;] mi;qZDr fo’k;d vkids i=kad 316 ¼m0½ fnukad 12-10-06 ds izlax esa dguk gS fd fcgkj iapk;r izkjafHkd f”k{kd ¼fu;kstu ,oa lsok “kRrZ½ fu;ekoyh] 06 1yh tqykbZ 06 ls iz[;kfir ,oa ykxw gS] ftldh dafMdk 4 ,oa 9 esa mfYyf[kr izko/kkuksa ds vUrxZr izkjafHkd f”k{kdksa ds fu;kstu dh dkjZokbZ izfØ;k/khu gSA 2- mDr fu;ekoyh ds izHkkoh gksrs gh frfFk ls dafMdk 20 ds vuqlkj xzkeh.k {ks= esa iapk;r f”k{kk fe= ds fu;kstu ls lacaf/kr iwoZ dh lHkh fu;ekoyh @ ladYi @ vkns”k @ vuqns”k ,oa ifji= vkfn fujLr gks x;s gSA vr% 1&7&06 ds ckn iapk;r rFkk fe= ds :i esa fu;kstu laHko ugha gSA 3- vxj fdlh iapk;r f”k{kk fe= ds fu;kstu ds laca/k esa f”kdk;r izkIr gksrh gS vkSj tkWpksijkUr voS/k ik;k tkrk gS rks mUgsa gVk;k tk ldrk gS ijUrq muds LFkku ij fdlh u;s iapk;r f”k{kk fe= dk fu;kstu fu;ekuqdwy ugha gksxkA fo”oklHkktu g0 vLi’V ¼v”kksd dqekj flag½ funs”kd ¼izk0 f”k0½] fcgkj] iVukA Kkikad 1899 iVuk fnukad 10-11-06 izfrfyfi lHkh ftyk inkf/kdkjh ¼fcgkj½ dks lwpukFkZ ,oa vko”;d dk;kZFkZ izsf’kr A g0 vLi’V ¼v”kksd dqekj flag½ funs”kd ¼izk0 f”k0½] fcgkj] iVukAÞ 11 unfortunately has been either over looked or deliberately ignored by the Collector of Kaimur District without any justification. It has to also kept in mind that there was also no direction given in the earlier order by this Court while disposing of the writ petition of respondent no.11 that upon removal of the petitioner from service, in the event of her appointment being found to be illegal, respondent no.11 will be appointed on the resultant vacant post of Panchayat teacher. Considering the aforementioned aspect this Court would set aside that part of the order of the Collector of Kaimur (Bhabhua) District dated 1.10.2007 whereby and whereunder a direction had been given for appointment of the petitioner on the post of Panchayat teacher. The said order, if read as a direction for appointment of Shiksha Mitra as recorded by the Collector, was meaningless order, inasmuch as the post of Panchayat Shiksha Mitra had already been abolished with effect from 1.7.2006 and respondent no.11 therefore could not have been appointed on the post of Shiksha Mitra. Counsel for respondent no.11 in fact has fairly explained that pursuant to the aforementioned direction of the Collector of Kaimur District respondent no.11 was actually appointed as a Panchayat Shikshak and not as a Shiksha Mitra. Though respondent no.11 has filed no counter affidavit enclosing his appointment letter but then taking into account that the impugned order of the Collector of Kaimur District has also been executed by appointing him, this Court would also quash the 12 resultant order of appointment of respondent no.11. In view of the fact that a fresh vacancy has been caused on the post of Panchayat Shikshak on account of termination of service of the petitioner as also respondent no.11, this Court would direct the competent authority under 2006 Rules to initiate a fresh process for appointment on the post of Panchayat Shikshak in question wherein both the petitioner and respondent no.11 if qualified would also be allowed to compete with other eligible candidates. Keeping in view that this dispute has remained pending either before the Authority or before this Court for more than last four years, this Court would direct the Respondent no. 10 under 2006 Rules to also take expeditious steps for filling up the post of Panchayat Shikshak in question and such an exercise must be completed within a period of four months from the date of receipt/ production of a copy of this order. In course of such consideration if either the petitioner or respondent no.11 may have exceeded the maximum age limit as prescribed under the Rules the competent authority shall give relaxation of age while considering their cases for appointment on the post of Panchayat Shikshak. This writ application is accordingly allowed only to the extent indicated above. (Mihir Kumar Jha,J.) Surendra/