IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1465 of 2007 ANJU KUMARI, W/O AKHILESH KUMAR, R/O VILLAGE BARKI AKODHI, PS. KARGAHAR, DISTRICT ROHTAS (SASARAM). …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR THROUGH THE COMMISSIONER CUM SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA. 2.THE SECRETARY, PANCHAYAT RAJ, GOVT. OF BIHAR, PATNA. 3.THE DISTRICT MAGISTRATE, SASARAM, ROHTAS. 4.THE BLOCK DEVELOPMENT OFFICER, KARGAHAR, ROHTA. 5.THE BLOCK EDUCATION EXTENSION OFFICER, KARGAHAR, ROHTAS. 6.THE DISTRICT SUPERINTENDENT OF EDUCATION, SASARAM, ROHTAS. 7.MUKHIYA, AKHADI GRAM PANCHAYAT, KARGAHAR, SASARAM, ROHTAS. 8.SANGEETA SINGH, W/O SANTOSH KUMAR ROY, BARKI AKODHI, P.S. KARGAHAR, DISTRICT ROHTAS. ………………………RESPONDENTS. with CWJC No.735 of 2008 SANGITA SINGH, W/O SANTOSH KUMAR SINGH, R/O VILLAGE AKORHI, P.S. KARGAHAR, DISTRICT ROHTAS AT SASARAM. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR THROUGH THE SECRETARY, HUMAN RESOURCES DEPARTMENT, GOVT. OF BIHAR, NEW SECRETARIAT PATNA. 2.THE DISTRICT MAGISTRATE, SASARAM, ROHTAS. 3.THE DISTRICT SUPERINTENDENT OF EDUCATION, SASARAM, ROHTAS. 4.THE BLOCK DEVELOPMENT OFFICER, KARGAHAR, ROHTA. 5.THE BLOCK EDUCATION EXTENSION OFFICER, KARGAHAR, ROHTAS. 6.THE MUKHIA, GRAM PANCHAYAT AKORHI BLOCK KARGAHAR DISTRICT ROHTAS. 7.THE PANCHAYAT SECRETARY, GRAM PANCHAYAT AKORHI DISTRICT ROHTAS AT SASARAM. 8.THE HEADMASTER MIDDLE SCHOOL AKORHI, PS.KARAGAHAR, DISTRICT ROHTAS. ………………………RESPONDENTS. 2 ----------- 03/ 28.07.2011 Heard counsel for the parties in both the cases. In C.W.J.C NO. 1465 of 2007 the petitioner Anju Kumari has assailed the order passed by The Block Development Officer, Kargahar in the district of Rohtas contained in his letter no. 1011 of 29.08.2006 whereby and whereunder he has sought compliance of his earlier order contained in letter no. 653 dated 06.08.2005 for removing the petitioner from the post of Shiksha Mitra. Counsel for the petitioner submits that the said order passed by the Block Development Officer is wholly without jurisdiction which in any event cannot be sustained in the eye of law, inasmuch as, he has also directed for appointment of respondent no. 8, Sangeeta Singh on the vacancy of the post of Shiksha mitra/Panchayat Shikshak being caused due to termination of the services of the petitioner. He has further stated that the said decision of The Block Development Officer in absence of a show cause notice 3 and/or opportunity of hearing to the petitioner is also in violation of the principles of natural justice. Counsel for the petitioner in this context has placed reliance on the judgment of this Court passed in the case of Raziya Perween vs The State of Bihar reported in 2011(2) PLJR 65. Counsel for the respondents on the other hand have stated that the appointment of the petitioner in fact was cancelled way back in the year 2005 itself, inasmuch as when it had came to the notice of the Block Development Officer that the petitioner Anju Kumari despite having secured much lesser marks and points in the merit list had been preferred to the respondent no. 8, Sangeeta Singh, an inquiry was conducted whereafter a direction was given to the mukhiya of Gram Panchayat by letter no. 653 dated 06.08.2005 to appoint Sangeeta Singh, on the post of Shiksha Mitra by removing the petitioner. It has also been explained by the Respondents that the allegation of the petitioner, Anju Kumari against respondent 4 no. 8, Sangeeta Singh that she was not the resident of Gram Panchayat in question and as such was disqualified for being appointed on the post of Shiksha mitra specially when she had also not produced the caste certificate in support of her claim of reservation is an after thought, inasmuch as, all these facts have not been recorded in the proceedings of the meeting of Sukh Suvidha Samiti of Gram Panchayat in which panel was said to have been prepared and approved powering way for appointment of the petitioner. In the light of aforesaid submissions the first crucial question would be as to whether the selection of the petitioner on the post of Shiksha Mitra in the month of May 2005 was justified? It is not in doubt that the petitioner had secured 522 marks with a 1st Division in the Intermediate Examination and her total weightage point was ten. The respondent no. 8, Sangeeta Singh had also secured 1st Division in the Intermediate Examination but she had secured 625 marks and her total 5 weightage point was fifteen. Thus according to the guidelines for appointment on the post of Shiksha Mitra respondent no. 8, Sangeeta Singh was a much better candidate having been placed at serial no.9 of the panel as against the petitioner at serial no. 107 of the same panel(merit list). Normally, such meritorious candidate like respondent no. 8, Sangeeta Singh ought to have been straightway appointed but if her selection was denied and she had immediately complained to the competent Authority and the competent Authority had thereafter held an inquiry and directed for appointment of the respondent no. 8 in place of the petitioner, as had been sought to be done by the order dated 06.08.2005 as contained in Annexure-2 to C.W.J.C NO. 735 of 2008, this court would find no error in the said decision taken by the Authority and consequently the issue raised by the petitioner either with regard to the jurisdiction of the the Block Development Officer or violation of the principles of natural justice will have no meaning, 6 inasmuch as, the Block Development Officer either for the post of shiksha mitra or even after framing of Panchayat Shikshak Rules was the prescribed Authority to decide the dispute as would be also evident from the unamended 2006 Rules wherein, under Rule 18, the Block Development Officer was the prescribed competent Authority till the year 2008 before its being substituted by the District Teachers Appellate Authority. The question of jurisdiction apart when a candidate like respondent no. 8, Sangeeta Singh was edged out by the Mukhiya of Gram Panchayat for appointing a lesser meritorious candidate like the petitioner the Block Development Officer could not have remained a mute spectator and therefore, this Court would also find that the order dated 06.08.2005 is actually the order of termination of service of the petitioner Anju Kumari and her claim to have continued in service on or after 6.8.005 definitely does not inspire confidence, inasmuch as, there is no also 7 statement of the petitioner in the writ petition that after her being engaged on Shiksha mitra she was ever paid any emoluments for the work allegedly done by her till 05.09.2006, which according to her is the date of termination of her service in view of the said order dated 5.2.2006 assailed by her in this writ application. In any event a mere certificate of Mukhiya filed in this case without any supporting document regarding the petitioner having been allowed to continue in service after the direction of the Block Development Officer dated 06.08.2005, will not make the petitioner a working Shiksha Mitra as on 01.07.2006, so as to get the benefit of being absorbed on the post of Panchayat Shikshak in terms of Rule 20(iii) of Panchayat Shikshak Rules 2006. The matter may be viewed from another angle inasmuch as even if it is held that the petitioner’s services were absorbed on the post of Panchayat Shikshak on account of her alleged continuance in service till 30.6.2006 on the post of Shiksha Mitra even 8 then the Block Development Officer in terms of Rule 18 of 2006 Rules was competent to hold an inquiry and direct for removal of such Shiksha Mitra absorbed on the post of Panchayat Shikshak whose initial appointment on the post of Shikshak Mitra was itself illegal. This aspect of the matter had already been explained even by the State Government by clarifying that though after 01.07.2006, there can be no fresh appointment on the post of Shiksha Mitra on account of abolition of the post of Shiksha Mitra but then any engagement of such Shiksha Mitra who was deemed to be absorbed as Panchayat Shikshak made contrary to the earlier Government policy of appointment on the post of Shiksha Mitra could still be gone into by the prescribed Authority, the Block Development Officer for canceling such appointment. Thus if there is no scope for justifying the decision relating to the appointment of the petitioner on the post of Shiksha Mitra despite being placed much below in merit placed at serial no. 107 of the merit list, 9 the petitioner could not have been selected and appointed on the post of Shiksha Mitra in preference to a better qualified candidate like respondent no. 8, Sangeeta Singh placed at serial no. 9 of the panel or for that purpose any other person of the same panel placed above the petitioner upt serial no. 106 of the panel. This court however also must take notice of the fact that the plea of the petitioner as against respondent no. 8, Sangeeta Singh, of her being ineligible due to non submission of the caste certificate. In this context it is found that at least there is nothing on record even in the merit list that the Respondent no. 8 had not submitted her caste certificate and in fact when the merit list had been prepared by treating the respondent no. 8, Sangeeta Singh, to be belonging to the backward category to which the petitioner also belongs, there would be nothing left for this Court to hold that respondent no. 8, Sangeeta Singh, was ineligible on the ground of caste consideration. Moreover, 10 the fact that there is an entry in the merit list showing that the respondent no. 8, Sangeeta Singh had not submitted the domicile certificate in fact could have inspired confidence, if there was corresponding entry made in the proceedings of the Sukh Suvida Samiti rejecting the candidature of respondent no. 8, Sangeeta Singh, on the ground of she being not the resident of Gram Panchayat. There is however nothing in the proceeding of the Sukh Suvida Samiti which is part of the record of this writ petition to show that the respondent no. 8, Sangeeta Singh was ever held to be ineligible and the mere entry made in the merit list without any signature of any person would lead an inference that it was only a compilation of the details which cannot be said to be the authentic merit list for the purposes of holding the respondent no. 8, Sangeeta Singh to be ineligible. As a matter of fact when the Block Development Officer, had the opportunity to go into the complaint of respondent no.8, 11 Sangeeta Singh and he too in his enquiry had not found Respondent no. 8, Sangeeta Singh ineligible on the ground of not producing the caste/domicile certificate. Thus in the facts and circumstances of this case, this court feels that the impugned order dated 29.8.2006 assailed by the petitioner in this case is only by way of reminder to an earlier order of termination issued by the Block Development Officer on 06.08.2005, which is actually the termination order of the petitioner. The impugned order in this writ petition being only a reminder there would be infact no need to go into question of either the jurisdiction or on the ground of principles of natural justice. The reliance placed by the learned counsel for the petitioner on the judgment of Raziya Perween (supra) is wholly misplaced, inasmuch as, in that case it was an admitted position that Shiksha Mitra appointed had already been absorbed on the post of Panchayat Shikshak. In this case the appointment of the petitioner Anju 12 Kumari had stood terminated in view of the order of the Block Development Officer dated 06.08.2005 much before coming into force of 2006 Rules on 1.7.2006 giving benefit of automatic absorption of only working shiksha mitra as on 30.6.2006 on the post of Panchayat Shikshak. Thus this court would find no merit in the first writ petition of Anju Kumari. At this stage, this Court has to advert to the facts of the second writ petition being C.W.J.C No. 735 of 2008, wherein, the petitioner Sangeeta Singh, Respondent no. 8 in C.W.J.C. No. 1465/2007 has assailed the order of the Collector of the district dated 05.09.2007 terminating her services. From the facts as noted above, it would be clear that though a direction had been given to the Mukhiya for appointment of petitioner, Sangeeta Singh on 06.08.2005 but as a matter of fact such appointment could not be made due to defiant attitude of the Mukhiya who had adopted a partisan attitude for defending the illegal appointment of Anju Kumari, the 13 petitioner of the first case. Be that as it may, the petitioner Sangeeta Singh admittedly could not be appointed on the post of Panchayat Shikshak till 30.06.2006 the date on which such post got abolished. It is in fact the case of the petitioner Sangeeta Singh that her appointment was made under the orders of the Block Development Officer on 29.08.2006 whereafter she could join the post on 05.09.2006. Unfortunately, by this time as Panchayat shikshak Rules 2006 had itself abolished the post of Shiksha Mitra w.e.f. 1.7.2006 the order of the Block Development Officer dated 29.8.2006 to appoint petitioner, Sangeeta Singh, on the abolished post of Shiksha Mitra was wholly without jurisdiction. To that extent, the Collector of the district has committed no error in ignoring the appointment of petitioner Sangeeta Singh which was impermissible in the eye of law. True it is that the vacancy on the post of Shiksha Mitra due to removal of Anju Kumari had already taken place on 14 06.08.2005, but if the petitioner, Sangeeta Singh, could not be appointed prior to 30.06.2006 she could not have been appointed as Shiksha Mitra after 30.06.2006 and was thus not even entitled for being absorbed on the post of Panchayat Shikshak. That is how Rule 20(iii) will have to be read and understood. In the result, the second writ petition also fails. That being so, both the writ applications are devoid of any merit and are, accordingly, dismissed. Ranjan (Mihir Kumar Jha, J.)