IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11161 of 2010 NIRAJ KUMAR Versus THE STATE OF BIHAR & ORS ----------- 6. 31.03.2011 Annexure 8 is the order dated 30th of June 2010, passed by the District Teachers Employment Appellate Authority East Champaran at Motihari. By virtue of this order appointment of the petitioner on the post of a Panchayat Shiksha Mitra has been declared to be invalid and illegal and direction has been issued upon the respondent to appoint respondent no. 10 on the post of a Panchayat Teacher. Petitioner has assailed the order on many of the grounds, some of them are that the Appellate Authority has no business or power to give direction for appointment of any individual. As a matter of propriety the issue should have been remitted back to the Appointing Authorities to consider the claim of respondent no. 10 but by giving a direction to issue appointment letter in favour of the private respondent, for the post of a Panchayat Teacher, is exceeding the power of quasi judicial adjudication. The other submission, which has been made on behalf of the petitioner, is that i.e. 1.7.2006 there are no posts of Panchayat Shiksha Mitra available in the State of Bihar by virtue of 2006 rules which was enacted by the State Government and all such persons who were working on the post of a Panchayat Shiksha Mitra became a Panchayat Teacher. With regard to other vacancies, steps have been taken for their appointment within the para meters and the guidelines laid down in such rules. Contention therefore is that the 2 dispute relates to non selection of respondent no. 10 on the post of Panchayat Shiksha Mitra. If that is so there was no occasion now for the tribunal to give a direction to appoint the respondent on the post of a Panchayat teacher. The other fallacy which has been pointed out is that respondent was still a claimant to the post of a Panchayat Shiksha Mitra and if he was not occupying the post, he cannot be deemed to have become a Panchayat Teacher by the legal fiction created in 2006 Rules. Yet another aspect which has been addressed by the learned counsel for the petitioner is that the tribunal made an error by holding that the Panchayat in question had created a barrier against the private respondent by resolving that persons with Up- Shashtri or Maulvi degrees would not be considered for appointment in the primary schools of the panchayat. This has been held to be contrary to the requirements of such recruitment which occupied the field in the year 2005. The appointment of the petitioner thereafter was declared to be invalid because the private respondent was supposedly ousted from consideration for extraneous reasons. Learned counsel representing the private respondent submits that if respondents no. 10 has higher marks and merit he cannot be ousted by the panchayat by not considering his appointment. If by giving a wrong interpretation the kind of qualification he had, then obviously the tribunal has done the correct thing by giving direction for his appointment. Petitioner having less 3 marks than the private respondent did not deserve to be appointed and merit cannot be given a goby. Whatever be the background or the claim or the allegation which the private respondent has made against the petitioner, in the complaint before the tribunal but this Court has to adjudicate the matter in the present context as things stand today. The facts that after 1.7.2006 there are no posts of Panchayat Shiksha Mitra, in existence. The dispute between the parties inter se is with regard to appointment to the post of Shiksha Mitra but there is no post of Shiksha Mitra. The tribunal had no business to give a direction to appoint the private respondent as a Panchayat teacher directly by giving specific direction to the respondent in this regards. Even otherwise Hon’ble High Court has held on many occasions that no direction to appoint or not to appoint can be given even if a person makes out a case. Court have powers to direct the authority only to consider. But even this cannot be done in the present case because as of today the private respondent cannot be appointed on the post of Panchayat Shiksha Mitra. As he was never appointed on the post of Panchayat Shiksha Mitra there is no occasion to appoint him as a Panchayat Teacher. The Court has no hesitation in saying that the tribunal has erred in coming to such conclusion and in giving such a direction. So far as, Up-shashtri or Maulvi degree isconcerned the Court can only state that such an issue was not open and shut status at the relevant time. Certain dispute or confusion did prevail 4 as to the validity of such degrees for appointment in panchayat. Even the judgment or decision produced by learned counsel representing the private respondent which is a batch of cases decided by the learned Single Judge in the case of Rambha Kumari and others which is C.W.J.C. No. 10641 of 2008 and analogous cases disposed of on 23.4.2009 does not help the respondent no. 10 all the way because the matter related to non payment of remuneration after appointment on the post of Panchayat Shiksha Mitra with such degrees.The learned Single Judge has dealt with the matter and held that such a situation can exist where Up- Shashtri and Maulvi degrees may not form the basis for appointment The decision of the tribunal thus sufferes from illegality and the same is required to be interfered. The writ application is allowed and the decision continued in annexure 8 dated 30.6.2010 passed in case no. 529/09 is quashed. So far as, the merit for appointment of petitioner is concerned, that does not remain an issue in view of the order as above. Namita ( Ajay Kumar Tripathi, J. )