IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13492 of 2007 NIRBHAY KUMAR SINHA son of Sri Lalan Prasad Sinha, resident of village & P. O. Belaon, P.S. Sikraul, Anchal- Nawanagar, District- Buxar. ….Petitioner. Versus 1. THE STATE OF BIHAR, through the Secretary Human Resources Department, Govt. of Bihar, Patna. 2. The District Magistrate, Buxar, District- Buxar. 3. The District Superintendent of Education, Buxar, District- Buxar. 4. The Block Development Officer, Nawanagar, P. S. Nawanagar, District- Buxar. 5. The Block Education Officer, Nawanagar, District- Buxar. 6. The Mukhiya-cum-Chairman of Sukh Subidha Samitee, Belaon Gram Panchayat, Anchal- nawanagar, P. S. Sikraul, District- Buxar. 7. The Panchayat Secretary, Belaon Gram Panchayat, Anchal- Nawanagar, P.S. Sikraul, District- Buxar. … Respondents. …. ----------- 2. 01.09.2010 Having heard learned counsel for the parties as with regard to the following relief; “(I) For issuance of an appropriate direction, order or writ in the nature of „Mandamus‟ directing and commanding the concerned respondents to select and appoint the petitioner on the then post of Shiksha Mitra in Belaon Grampanchayat, District- Buxar on the basis of Enquiry reports contained in Annexure 6 and 7 submitted by the official respondents before the D.M., Buxar in which the petitioner has been found eligible to be appointed instead of illegal selection and appointment of one candidate namely Sajay Kumar Pathak which has already been cancelled by the respondent no. 2 vide Memo No. 1434 dated 27.7.2007 contained in Annexure-8. (ii) For further holding and declaring that the petitioner is eligible to be selected and appointed on the post of 2 Shikshamitra in Belaon Gram Panchayat in view of 19 marks obtained by the petitioner which is evident from enquiry report submitted by the official respondents vide Annexure 6 and 7. (iii) For further holding and declaring that new Teacher Appointment Rule, 2006 cannot deprive the petitioner to be selected and appointed on the post of Shikshamitra as being a candidate of 2004 advertisement contained in Annexure-1. (IV) For further holding and declaring that the petitioner will be deemed to be selected and appointed on the said post of Shikshamitra with effect from 2005 i.e. on 4.6.2005. (v) For issuance of an appropriate direction, order or writ in the nature of „Mandamus‟ directing and commanding the respondents to keep reserve the said post of Shikshamitra which has been cancelled by the respondent no. 2 contained in Annexure-8 till the disposal of this writ application.” this Court is of the view that the petitioner now cannot be directed to be appointed on the post of Shiksha Mitra or for his being absorbed on the post of Panchayat Shikshak in view of the fact the post of Shiksha Mitra stands abolished with effect from 1.7.2006. Counsel for the petitioner, however, would rely on an order dated 27.2.2007 passed by the Collector of Buxar district wherein it has been held that the concerned Mukhia who had made illegal appointments on 3 the post of Panchayat Shiksha Mitra ignoring the case of the petitioner by appointing one Sanjay Kumar Pathak who secured less mark than the petitioner, this Court should now direct for appointment of the petitioner on the post of Shiksha Mitra. In this context, he has also placed reliance on a similar order of appointment of one Sanjay Kumar Singh dated 13.6.2007 who has been appointed directly on the post of Panchayat Shikshak even when he was never appointed on the post of Panchayat Shiksha Mitra only because the Collector of the District had issued an order to this effect. The order dated 27.7.2007 of the Collector of Buxar was very clear that since the Mukhiya had made a number of illegal appointment namely Rinki Kumari, Shantala Pandey and Sanjay Kumar Pandey ignoring the better candidate, action should be taken against the said Mukhiya. The order dated 27.7.2007 of the Collector ended without any further direction for appointment of either Devanti Kumari who was found to be having secured higher marks to Shantala Pandey or of the petitioner who is shown to have secured higher marks to Sanjay Kumar Pandey. 4 In the opinion of this Court, the Collector was right in taking such decision inasmuch as if any act was done by the Mukhiya, he was answerable even after abolition of the post of Shikshamitra but that would not mean that the petitioner‟s appointment on the post of Shiksha Mitra could have been directed by the Collector on any date after 1.7.2006. The order of appointment of Sanjay Kumar Singh about which the order was passed by the Collector of the district on 30.5.2007, is apparently in teeth of Rule 20 of 2006 Rules and therefore this Court would find it difficult to treat the case of appointment of Sanjay Kumar as a correct precedent for its being followed by the Collector of the district under Rule 20 of 2006 Rules when the post of Panchayat Shiksha Mitra including any instruction issued had already been repealed. The Collector had no jurisdiction to pass an order for appointment of aforementioned Sanjay Kumar Singh on the post of Panchayat Shikshak. Consequently, the order which was passed by the concerned authority appointing Sanjay Kumar Singh on the post of Panchayat Shikshak was also wholly unjustified. Therefore, this Court is not in a position to direct the Collector of the District to 5 perpetuate the illegality but then as the said case of Sanjay Kumar Singh who has not been made party to this writ application can become a bad precedent for future cases, this Court would direct the Collector of District to examine as to whether the order in question was passed by him on 30.5.2006 or 30.5.2007 inasmuch as from Annexure-11 it does not appear that said order was passed on 30.5.2007. If it would be found that the appointment of Sanjay Kumar Singh was directed to be made by an order dated 30.5.2007, the Collector of the district would reconsider his decision and pass a fresh order after giving an opportunity of hearing to Sanjay Kumar Singh inasmuch as after 1.7.2006 no appointment was permissible on the post of Panchayat Shiksha Mitra and the Collector of District had no power whatsoever in the matter of appointment of Panchayat Shikhsak on which the Sanjay Kumar Singh was eventually appointed in view of the order passed by the Collector of the district. With the aforementioned observation and direction, this writ application is disposed of. kanchan (Mihir Kumar Jha, J.)