IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16261 of 2008 MAMTA KUMARI, WIFE OF SURYA BHUSHAN SHARMA, RESIDENT OF VILLAGE KHODADPUR, POLICE STATION-MADHUBAN, DISTRICT -EAST CHAMPARAN. ………………..Petitioner. Versus 1. THE STATE OF BIHAR. 2. THE BLOCK DEVELOPMENT OFFICER, MADHUBAN, EAST CHAMPARAN. 3. MUKHIYA, GRAM PANCHAYAT RAJ GARAHIA, BLOCK MADHUBAN, POLICE STATION MADHUBAN, DISTRICT- EAST CHAMPARAN. 4. PANCHAYAT SECRETARY, GRAM PANCHAYAT RAJ GARAHIA, BLOCK MADHUBAN, POLICE STATION-MADHUBAN, DISTRICT- EAST CHAMPARAN. 5. SIMA KUMARI, WIFE OF BABLOO KUMAR SINGH, RESIDENT OF VILLAGE KHODADPUR, POLICE STATION MADHUBAN DISTRICT- EAST CHAMPARAN. ………………………Respondents ----------- /7/ 01.12.2010 Heard learned counsels for the parties. 1. The present writ application has been filed for quashing the order dated 17.10.2008, as contained in Annexure-4, passed by the Block Development Officer, Madhuban, East Champaran, whereby the petitioner’s appointment as Shiksha Mitra was cancelled and respondent no. 5 was directed to be appointed in place of petitioner. The 2 prayer has also been made for restraining the respondents from appointing Respondent no. 5 in place of petitioner. Subsequently, through Interlocutory Application No. 7166 of 2010, the appellate order dated 19.07.2010, passed by the District Education Appellate Authority, East Champaran, Motihari, as contained in Annexure-6, has also been challenged, whereby, Appointment Committee was directed to cancel the appointment of the petitioner and to make immediate appointment of Seema Kumari (respondent no. 5). The Interlocutory Application was allowed vide order dated 06.09.2010. 2. The dispute in the present proceeding is within the very narrow compass. Whether petitioner’s service can be terminated in the background that she was appointed on a contractual basis as Shiksha Mitra and subsequently absorbed by operation of Rule 20 (iii) Bihar Panchayat Elementary Teachers (Employment and Service Conditions) Rules, 2006 (here and after called 2006 Rules) or whether the objection of Respondent no. 5 had been considered even it was not being filed within the stipulated prescribed period? 3. In the year, 2005, ten vacancies were advertised for the post of ‘Panchayat Shiksha Mitra’ in Gram Panchayat Raj 3 Garahia, Block Madhuban in the District of East Champaran, out of ten vacancies five posts were to be filled by female candidates and the remaining five by the male candidates. The reservation was to be followed separately for the male and female candidates, for which a sample of the roster format was also provided. As per the roster, out of the five vacancies for the female quota three seats were to be filled from the general category and one from the M.B.C. while and another from the S.C. category. On 06.05.2005 the appointments were made but one post reserved for general female category could not be filled up. 4. The District Panchayat Officer (Vide Memo No. 489 dated 23.05.2005 as contained in Annexure-10) had directed all the Mukhiya and Panchayat Sewak of East Champaran to appoint Panchayat Shiksha Mitra having the matriculation qualification, if the intermediate passed candidates were not available but such candidates might be directed to pass the intermediate examination within three years of their appointment. The proceedings of the Panchayat, as contained in Annexure-11, reflects, that on 08.06.2005 vide Proposal No. 4, the petitioner was recommended to be employed as Shiksha Mitra on the vacant post. Consequently, the petitioner 4 joined the post on 21.06.2005. It appears that petitioner continued on the post of Shiksha Mitra in Primary School Hari Narainpur, when Bihar Panchayat Elementary Teachers (Employment and Service Conditions) Rules, 2006, came into force. Sub Rule (iii) of Rule 20 of 2006 Rules envisages that the persons who were working as Shiksha Mitra on the date of coming into force of 2006 Rules shall be deemed to be absorbed as Panchayat Teacher. Rule 20 Sub Rule (iii) reads as follows “ fdUrq iwoZ ds ifji=] vkns”k] vuqns”k ds vkyksd es fu;ksftr ,oa dk;Zjr iapk;r f”k{kk fe= bl fu;ekoyh ds rgr iapk;r f”k{kd ds :i es fu;ksftr ekus tk;sxs** 5. The petitioner continued to work as Panchayat Teacher after coming into force of 2006 Rules. The Block Development Officer, Madhuban, (Vide Memo No. 1084, dated 17.10.2008) directed the Panchayat Shikshak Employment Committee of Garahia Panchayat to call meeting of the Employment Committee within a week and cancel the appointment of the petitioner and respondent no. 5 was directed to be appointed, on the ground that on the date of application i.e. 01.01.2005 respondent no. 5 was 30 years, 11 months and 30 days old but there was relaxation of three years for female candidates and that relaxation was not 5 considered which resulted into non-appointment of respondent no. 5, in the first phase. The aforesaid order dated 17.10.2008 came to be challenged in the present proceeding and this Court after hearing the counsels for the petitioner and the State, vide order dated 21.11.2008 stayed the operation of the order dated 17.10.2008, as contained in Annexure-4. 6. It appears that the District Panchayat Officer, East Champaran, vide letter no. 2052 dated 12.11.2008 as contained in Annexure R/6 directed the Block Development Officer, Madhuban, to withdraw the order dated 17.11.2008. Since the Appellate Authority had the power to hear the appeal hence the respondent no. 5 may be directed to file an appeal. Consequently the Block Development Officer issued the consequential order on 14.11.2008 as contained in Annexure -R/7. 7. Respondent no. 5 filed C.W.J.C. no. 1245 of 2009 challenging the order dated 12.11.2008 as contained in Annexure- R/6 and the order dated 14.11.2008 as contained in Annexure- R/7. The said writ application was dismissed as withdrawn on 13.09.2010 considering the letter of District Panchayat Officer and Block Development Officer as contained in Annexures-R/6 and R/7, which stipulates that 6 Appellate Authority has the power to hear objection. 8. Consequently, respondent no. 5 filed an appeal before the Appellate Authority on 11.01.2010, challenging the appointment of the petitioner. The memo of appeal has been brought on record by the petitioner as contained in Annexure- 9, which reflects that respondent no. 5 claimed her appointment as Shiksha Mitra since 2005, which could not be made due to the relaxation of age for three years not being given to respondent no. 5 being a female candidate. Though the memo of appeal no. 09/08 was filed on 11.01.2010 but respondent no. 5 did not mention in memo of appeal about filing of the writ application by her or the pendency of the present writ application. 9. On 19.07.2010, the appellate authority directed the Employment Committee to cancel the appointment of petitioner and to appoint the Respondent no. 5 on the ground that claim of respondent No. 5 ought to have been considered, since there was three years relaxation of age in the appointment of the female candidate. Moreover, respondent no. 5 was having Intermediate qualification, whereas, the petitioner was only Matriculate. 10. Firstly, it is submitted by Mr. Sudhir Singh, learned 7 counsel for the petitioner that petitioner was appointed in the second phase in the later part of 2005, as in the first phase, when the post reserved for the female candidate, was not filled up then with the approval of the District Magistrate, appointments were made and in the second phase the respondent no. 5 was not an applicant. Secondly, respondent no. 5 did not file any objection within 30 days as stipulated in the Rule and it appears that for the first time, the appeal was filed on 11.01.2010. The said contention of learned counsel for the petitioner is controverted by Mr. Pradhan, learned counsel for Respondent no. 5, drawing my attention to para 6 of the appellate order which reflects that the objection was filed on 09.06.2005. Though the date of objection has been mentioned in para 6 of the appellate order but respondent no. 5 has not brought on record any document suggesting that objection was filed on 09.06.2005 nor the order of the Block Development Officer as contained in Annexure-4, reflects that any objection was filed by the respondent no. 5 on 09.06.2005, rather the order dated 17.10.2008 reflects that some enquiry was made on 05.08.2008, on the application of the respondent no. 5. In this connection, reliance has been placed on the judgment of “Alok Kumar & Ors. Vrs. The 8 State of Bihar & Ors” reported in 2009 (2) PLJR 929, which stipulates that objection with regard to the Shiksha Mitra should be filed within 30 days of the appointment. In the present case, admittedly, the enquiry was made on 05.08.2008, by Block Development Officer as it gets reflected from Annexure-4, but it is not mentioned as to when the objection was raised. Though some enquiry was made in 2007 on the complaint of some other persons in which the case of the respondent no. 5 was also considered and hence by taking into account the enquiry made in 2007, it appears that the objection was filed much beyond the stipulated time as the appointment on the post of Shiksha Mitra was contractual in nature for 11 months and it appears that objection if any, it was raised much after the absorption of the petitioner as Panchayat Teacher by operation of Rule 20 (iii) of 2006 Rules. Hence the services of the petitioner can not be disturbed. The aforesaid principle has also been reiterated in case of “Sobha Kant Suman & Anr. Vrs. The State of Bihar & Ors” reported in 2010 (4) PLJR 291. 11. It is further contended by counsel for the petitioner that by the time the Block Development Officer or the Appellate Authority tried to interfere in the matter the 9 services of the petitioner were absorbed as Panchayat Teacher by operation of Rule 2006. The Deputy Director Primary Education Bihar issued Memo no. 108 dated 01.02.2007 contained in Annexure no. 3, which stipulates that though on finding the illegality in the procedure, the Panchayat Teahcer’s services can be terminated, but in their place the employment of Shiksha Mitra cannot be done. 12. It is contended by the counsel of respondent no. 5, that respondent no. 5 was appointed as Panchayat Teacher and not as Shiksha Mitra. This contention has no legs to stand as the Respondent no. 5 made claim for being appointed as Shiksha Mitra in 2005 and the Appellate Authority cannot grant something which has not been prayed for or which is not permissible under 2006 Rules. 13. In the instant case the Appellate Authority failed to realize that neither the objection was raised within stipulated time nor the appeal was filed within stipulated time and by the time the Appellate Authority decided to interfere, the services of the petitioner was absorbed as a Panchayat Teacher by operation of the Rule 2006. Hence, the order of Appellate Authority cannot be sustained as it is absolutely without jurisdiction. 10 14. Learned counsel for the State submits that there was no period stipulated for filing objection. This court think that the contention of learned counsel for the State is absolutely misconceived as under the provisions of Resolution no. 1548 dated 11.08.2004 there was a provision of filing of any objection regarding selection and appointment and this issue has been settled in case of (Alok Kumar and others Vrs. State of Bihar and Ors) reported in 2009 (2) P.L.J.R. 929 . Since order dated 17.10.2008 as contained in Annexure-4 was subsequently withdrawn/annulled by the Block Development Officer on the direction of the District Panchayat Officer vide Annexure R/7 on 14.11.2008, hence in that view of the matter there is no need of quashing Annexure-4 as the same has been annulled by the authorities themselves. As a result only the appellate order dated 19.07.2010 as contained in Annexure:6 to the Interlocutory Application is hereby quashed, as the Appellate Authority had no jurisdiction to hear the appeal and decide the claim of respondent no. 5 as Siksha Mitra and direct for appointment of the respondent no. 5, when petitioner was already absorbed as Panchayat Teacher. 15. It is further directed that the authority should reinstate the petitioner within a period of six weeks, as 11 Panchayat Teacher under Gram Panchayat Raj Garahia in the District of East Champaran. It is made clear that the petitioner will not be entitled for any payment for the period she has not worked, but the authorities will make payment of the arrears for the period, the petitioner has worked in the school in question, but for the continuity of service and increment purposes the service of the petitioner will be treated to be continuous. With the aforesaid observations, this writ application is allowed. Safik (Dinesh Kumar Singh, J.)