IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 11123 of 2010 1. VINAY KUMAR VINAY S/O LATE HARDEO PRASAD R/O VILL.- JUAFER, P.O. CHAKIYA, P.S. BHAGWANPUR HAT, DISTT.- SIWAN 2. DEWENDARA PRASAD YADAV S/O GOKHULA PRASAD YADAV R/O VILL.- JUAFER, P.O. CHAKIYA, P.S. BHAGWANPUR HAT, DISTT.- SIWAN 3. SABITA KUMARI W/O AJAY TIWARI R/O VILL.- DHORPUR, P.O. PANDITPUR, P.S. BHAGWANPUR HAT, DISTT.- SIWAN Versus 1. THE STATE OF BIHAR, THROUGH PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, BIHAR, PATNA 2. THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEPARTMENT, BIHAR, PATNA 3. THE DIRECTOR, PRIMARY EDUCATION, BIHAR, PATNA 4. THE COMMISSIONER, SARAN DIVISION AT CHAPRA, BIHAR 5. THE DISTRICT APPELLATE AUTHORITY, (SELECTION OF TEACHER), SIWAN 6. THE COLLECTOR, SIWAN, BIHAR 7. THE DISTRICT SUPERINTENDENT OF EDUCATION, SIWAN 8. THE BLOCK DEVELOPMENT OFFICER, BLOCK BHAGWANPUR HAT, DISTT. - SIWAN 9. THE BLOCK EDUCATION EXTENSION OFFICER, BLOCK BHAGWANPUR HAT, DISTT.- SIWAN 10. MUKHIYA, GRAM PANCHAYAT RAJ, MIRJUMLA UNDER BHAGWANPUR BLOCK, DISTT.- SIWAN 11. PANCHAYAT SECRETARY, MIRJUMLA PANCHAYAT IN BHAGWANPUR BLOCK, DISTT. - SIWAN 12. NAND LAL PRASAD S/O CHHATHU PRASAD R/O VILL.- JUAFAR, P.O.- CHAKIYA, P.S. BHAGWANPUR HAT, DISTT.- SIWAN *** For the petitioners : M/s Ashok Kr Chaudhary, Kaushal Kr Singh & Ashok Kr, Advocates For respondent No 10 : Mr Gyan Prakash, Advocate For respondent No 12 : Mr Umesh Kr Mishra, Advocate 2 For the S t a t e : Mr Anil Kr Divedi, AC to GP 13 *** 2 09.11.2010 The present dispute emanates from selection of Shiksha Mitra of the year, 2005 in respect of Gram Panchayat Raj Mirjumla, Anchal – Bhagwanpur Hat, District – Siwan. It appears that selections of Shiksha Mitras having been made, a number of writ petitions were filed in this Court challenging the selections as made which were disposed of by this Court and this Court, by order dated 25.05.2007, relegated the persons including those concerned with the present Panchayat to the respective Collector –cum- District Magistrate to make enquiry and pass appropriate orders. Thereafter, enquiries were made and it was found by the District Administration that in so far as the present Gram Panchayat is concerned, several persons with forged marksheets had been selected. There was recommendation to the Gram Panchayat/the Selection Committee to cancel their selection and in their place, from the merit list, make fresh appointments. The Gram Panchayat/Selection Committee thereafter then on 02.02.2010 met and considered the matter. By the first resolution of the said date, they decided to remove three persons and noticed that the fourth had already tendered his resignation. At this place, it may be relevant to note that all these persons were selected as Shiksha Mitras in the year, 2005. In the year 2006 came the Bihar Primary Panchayat Teachers (Service Conditions and Appointments) Rules, 2006. Those Rules now provided for selection and recruitment of Panchayat Teachers. Rule 20, inter alia, provided that Shiksha Mitras, who were working, would be deemed to be Panchayat Teachers and duly recruited. 3 Thus the Shiksha Mitras, who were duly selected or wrongly selected and against whom enquiries were pending, also became Panchayat Teachers. Thus, when the Gram Panchayat took a decision to remove them, they were Panchayat Teachers. It so appears that they were originally appointed in Primary Schools in the Panchayat which School, in the year 2009, was upgraded to Middle School. As such, they were Primary Panchayat Teachers now working in Middle School and acquired the status of Block Teachers in Middle School. It is some of them who were now to be removed as per Resolution No 1 dated 02.02.2010 of the concerned Gram Panchayat/Selection Committee. The consequential order would be that after removal from the merit list, the vacancies had to be filled and this is where all the disputes start. Of the same resolution, which is Annexure-A to the counter affidavit of respondent No 12, it would be evident that by Resolution No 6, respondent No 12 was first selected and ordered to be appointed in the vacancy so caused. Immediately thereafter is Resolution No 7 by which what was given to respondent No 12 by Resolution No 6 was taken away by Resolution No 7 on objection of one of the petitioners and by this Resolution, the four petitioners were then sought to be appointed. Thus seen, four vacancies were caused and we have five claimants. In my view, the Selection Committee/Gram Panchayat has to revisit this issue afresh with reference to the merit list which has been annexed as Annexure-B to the counter affidavit of respondent No 12 but before that is done, I may clear one confusion. As noticed above, respondent No 12 was first, by Resolution No 6, ordered to be appointed 4 which was taken back by Resolution No 7 of the same day the ground for that was that in view of the Government Circular if the weightage point and qualification are same then age has to be the deciding criteria. Here, it appears all the five persons had the same weightage point. Having found that and having found that all five were Graduate, the Panchayat Committee took into account the age factor and that is how respondent No 12 got excluded and the petitioners got included. It is against these actions that respondent No 12 moved the District Teachers Appointment Appellate Authority, Siwan in Case No 95 of 2010. The order of the Appellate Authority is Annexure-6 to the writ petition. By the said order, the Appellate Authority has directed that the appointment of the three petitioners and one another requires to be cancelled. They were to be appointed in the vacancy caused by Shiksha Mitras who were later absorbed as Primary Teachers and they could not be ordered to be recruited in Middle School which was post for Block Teachers which had a separate recruitment procedure. At the very outset, in view of the facts noted above as to how the persons removed had become Block Teachers though originally recruited as Shiksha Mitras, the reasoning given by the Tribunal, cannot be sustained. The persons removed and the vacancy on which the petitioners would be adjusted had become Block Teachers from Shiksha Mitras via Primary Panchayat Teachers upon upgradation of School and it is those vacancies that were required to be filled. Thus, the Tribunal’s order cannot be sustained on that ground and is, accordingly, set aside. The Tribunal, by subsequent order, has directed the 5 appointment of respondent No 12 forgetting the very issue decided by which earlier in the same Middle School which a contradiction in terms is. If the Tribunal has found earlier in the same case that petitioners could not be appointed in that School, how Tribunal decided in favour of respondent No 12 in the same issue because even he was placed on the vacancy against which petitioners were being placed, if what applied to the petitioners ought to have applied to respondent No 12 as well. On that ground, the order in favour of respondent No 12 also cannot be sustained. Now coming to the issue of all five having the same weightage points of 19, on behalf of petitioners, it is urged and that is what ground that was taken by the Selection Committee in Resolution No 7 that all being Graduate and their weightage points being the same, age would be the selection criteria in view of the Government Circular No 2945 dated 31.07.2008 (Annexure-1 to the writ petition). This Circular says that weightage and qualification being the same, the age would be the criteria. In my view, it is correctly understood by the Selection Committee. There is no dispute that the weightage point is the same. There is no dispute that they were all Graduate but we look to the merit list as was prepared by the Selection Committee itself which is Annexure- B to the counter affidavit of respondent No 12, we see that respondent No 12 was placed above all the four for the simple reason that in Graduation, he had better marks than the rest. He was better qualified. In my view, the rationale of the Government Circular is that the weightage point being the same, persons having better academic qualification which would include higher educational qualification or better marks with some 6 educational qualification, would be more qualified. The question of age would come thereafter if the position is not reconciled. The merit list, in my view, was correctly prepared and, therefore, selection of the four appointees had to be done as per the merit list in order of seniority subject to the roster. Thus, the orders of the Tribunal in the said case having been set aside, I direct the Tribunal to call upon the official-respondents and after perusing the merit list and the directions and observations made in this order, direct for appointment as per merit. This process, the Tribunal must complete within one month of production of a copy of this order before it. The writ petition is, accordingly, disposed of. Let it be noted that respondent-Mukhiya of the concerned Gram Panchayat has entered appearance and assisted the Court in the decision. M.E.H./ (Navaniti Prasad Singh)