IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9851 of 2007 SARAZUDDIN ANSARI, S/O SABIUDDIN ANSARI, R/O VILLAGE SABAL CHAK, P.O. TANKUPA, P.S WAZIRGANJ, DISTRICT GAYA. …………………………PETITIONERS. Versus 1.THE STATE OF BIHAR. 2.THE DISTRICT MAGISTRATE, GAYA. 3.BLOCK DEVELOPMENT OFFICER, TANKUPA, GAYA. 4.DISTRICT SUPERINTENDENT OF EDUCATION, GAYA. 5.MUKHIYA, GRAM PANCHAYAT BARSAUNA, BLOCK TANKUPPA, DISTRICT GAYA. 6.GRAM PANCHAYAT VIDYALAYA EDUCATION COMMITTEE, BARSAUNA, TANKUPPA, GAYA. …………………………RESPONDENTS. For the petitioner: Mr.Harendra Narayan Sinha and Mr.Rekha Prasad. For the respondents:Mr. Rakesh Kumar Samarendra, S.C 21 and Md. Obaidullah, A.C to S.C 21. ----------- PRESENT HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (19.07.2011) Mihir Kumar Jha,J. Heard Mrs. Rekha Prasad, learned counsel for the petitioner and learned counsel for the State. This writ application has been filed by the petitioner for the following relief:- “That the petitioner craves indulgence of this Hon’ble Court for issuance of necessary direction, order to respondent no. 2 to consider the case of the petitioner in the matter of appointment of Shiksha Mitra/Panchayat shikshak and issue necessary direction order to respondent no. 5 and 6 for appointment of petitioner which has been denied and the persons having lower percentage or marks in Matriculation Examination have been appointed on extraneous consideration as similarly situated analogous cases bearing C.W.J.C NO. 1462 of 2005 along with 45 with petitions have been disposed of on 25.05.2007 by a common order passed by 2 Hon’ble Mr. Justice Shailesh Kumar Sinha and thereby time has been fixed for consideration of cases of the writ petitioners.” As is apparent from the pleadings on record, the petitioner was never appointed on the post of Shiksha Mitra and in fact after the said post stood abolished in view of the Panchayat Prarambhik Shikshak Niyamawali Aur Sewa Sart-2006 w.e.f 01.07.2006, there can be no justification for considering the prayer of the petitioner made in this writ application for a direction to consider his case for appointment on the post of Shikhsa Mitra. This writ applicaton was filed on 06.08.2007 whereas the post of Shiksha Mitra stands abolished w.e.f., 01.07.2006 Mrs. Prasad, however, was quite emphatic that irrespective of abolition of the post of Shiksha Mitra if the petitioner’s earlier selection and appointment was denied on illegal ground, this Court can still issue a mandamus for selection and appointment of the petitioner on the post of Shiksha Mitra so that he could be absorbed on the post of the Panchayat Shikshak in terms of Rule-20(iii) of 2006 Rules. For this purpose she has referred to an order of this Court passed on 30.05.2007 in C.W.J.C NO. 2932 of 2007, Santosh Kumar and Ors Vs The State of 3 Bihar and Ors. A bare perusal of the scheme of appointment of Panchayat Shiksha Mitra which was covered by the executive instructions including the Government resolution no. 1079 dated 20.06.2002 would go to show that it had altogether different requirement under Clause-14 of the said resolution dated 20.06.2002.Not only qualification for the post of Shiksha Mitra was lesser only matriculation, but even the process of selection was altogether different to one which had been introduced in 2006 Rules for the post of Panchayat Shikshak requiring a candidate to have passed Intermediate examination as also successfully completed two years teacher training course. Thus the panel of Shiksha Mitra prepared on the existing executive instruction contained in resolution dated 20.06.2002 and its updated guidelines dated 11.08.2004 and 21.04.2005 having been expressly repealed by Bihar Panchayat Prarambhik Shikshak Niyojan even Sewa Sart Niyamawali 2006(hereinafter referred to as the Rules) providing altogether new criteria for the post of Panchayat Shikshak by way of the educational qualification and the process of selection for appointment on the post of Panchayat Shikshak, cannot be acted upon 4 after 30.06.2006. This Court cannot revive the abolished the post of Shiksha Mitra for issuing a direction for appointment of the petitioner. In this context it would be relevant to quote Rule-20 of 2006 rules which reads as follows:- “20- fujlu ,oa O;ko`fRr %& bl fu;ekokyh ds izHkkoh gksus dh frfFk ls xzkeh.k {ks= esa izkjafHkd f”k{kdksa@”kkjhfjd f”k{kdksa@iapk;r f”k{kk fe= ds fu;kstu ls lacaf/kr iwoZ dh lHkh fu;ekoyh] ladYi] vkns”k] vuqns”k vkfn fujLr ekus tk;saxs A ¼ii) fdUrq bl fujlu ds gksrs gq, Hkh iwoZ ds fu;ekoyh] ladYi] vkns”k] vuqns”k vkfn ds rgr fu;qDEr f”k{kdksa ds osrukfn ,oa lsok “kRrksZa ij bldk izHkko ugha iM+sxk A (iii) fdUrq iwoZ ds ifji=] vkns”k] vuqns”k ds vkyksd esa fu;ksftr ,oa dk;Zjr iapk;r f”k{kk fe= bl fu;ekoyh ds rgr iapk;r f”k{kd ds :i esa fu;ksftr ekus tk;saxs A “ From the aforesaid repealing and saving clause of the Rules, it would be self evident that while the post of Shiksha Mitra got abolished w.e.f., 01.07.2006, the only working Shiksha Mitra as on 30.06.2006 were deemed to have been absorbed on the post of Panchayat Shikshak w.e.f., 01.07.2006. If such be the clear intention of the legislature and the rule makers, this Court in exercise of its powers under Article 226 of the Constitution of India cannot direct for appointment of the petitioner on the post of Shiksha Mitra after abolition of the post as it would be contrary to law. The order of this Court dated 30.05.2007 in the case of Santosh Kumar(supra) had in fact 5 an altogether different history. In that case a panel for the post of Shiksha Mitra was sought to be prepared in the year 2004 and when such panel was acted upon by making appointment on the post of Shiksha Mitra on 03.05.2005, those appointments were challenged before this Court in C.W.J.C NO. 7862 of 2005 and its analogous cases and while disposing of that writ application filed, well before the 2006 Rules coming into force on 01.07.2006, the Collector of the district was authorized by this Court in its order dated 19.07.2006 to examine and decide the dispute as with regard to alleged anomaly in selection on the post of Shiksha Mitra. It was in this background that the learned Single Judge in the case of Santosh Kumar(supra) had observed as follows:- “So far as the 2006 Rules are concerned, they have come in force from 1st July, 2006 whereas the order that was passed by this Court was on 19th July 2006 in a writ petition which was filed in 2005 where the complaints were already pending since 2005 where the complaints were already pending since 2005 before the Collector of the district. In my view, the provisions of the 2006 Rules would be inapplicable as the proceedings were pending before the Collector in terms of Clause (14) of the earlier resolution.” It would thus become clear that the facts of the present case are entirely different. 6 Even otherwise where the statutes are absolutely clear, the petitioner having slept over his right till abolition of the post Shiksha Mitra, he must suffer the consequences flowing out of the inevitable 2006 Rules abolishing the very post of Shiksha Mitra. As a matter of fact when the petitioner claims to have applied for the post of Panchayat Shikshak on 22.10.2003 as asserted in paragraph no. 11 of the writ application it becomes clear that he is not even sure of his own case, inasmuch as, in January 2003 there was no post known as Panchayat Shikshak and if however the petitioner intends to convey that he had applied for the post of Panchayat Shiksha Mitra, his grievance arising out of a process of selection of the post of Shiksha Mitra which had been started in January 2003 for a tenure of eleven months could not be made the subject matter of a writ petition filed on 6.8.2007 much after abolition of the post of Shiksha Mitra on 01.07.2006. Thus the filing of this writ application on 06.08.2007 is not only belated but would amount to whipping of a dead Horse after more than a year of the abolition of the post of Shiksha Mitra. Similarly reliance placed by learned 7 counsel for the petitioner on the orders dated 05.09.2007 in C.W.J.C NO.4741 of 2007 (Narendra Kumar Singh vs The state of Bihar and Ors) and another order of the same date i.e. 05.09.2007 in C.W.J.C NO.4794 of 2007 (Kumari Dibyamala vs The State of Bihar and Ors) is also wholly misplaced, inasmuch as, the case of Narendra Kumar(supra) was that of a Panchayat shikshak and not of Shiksha Mitra and therefore, anything said as with regard to his selection would not govern the case of the petitioner who wants to be first appointed as Shiksha Mitra and thereafter, be absorbed on the post of Panchayat Shikshak. Again in the case of Kumari Dibyamala (supra) the issue was with regard to selection on the post of Panchayat Shikshak and therefore, the observations made therein that too only by way of giving liberty to file representation for consideration for the post of Panchayat Shikshak will be of no help and avail to the facts of the present case where the petitioner claims appointment first as Shiksha Mitra and then being absorbed on the post of Panchayat Shikshak. Finally, the reliance placed by the learned counsel for the petitioner on the order dated 08.01.2008 in C.W.J.C NO. 1057 of 2007 8 (Vinita Kumari vs The state of Bihar and Ors) is also inapt and inappropriate, inasmuch as, there is a specific finding in the order of this Court in the case of Vinita Kumar (supra) that when on 24.11.2005, the two candidates were appointed on the post of Shiksha Mitra who were having lesser marks to Vinita Kumari the writ petitioner, it could be discovered that her denial of engagement on the post of Shiksha Mitra in the last 11 months was capable of taking away the benefit of deemed absorption on the post of Panchayat Shikshak. In this context, the learned single Judge in the case of Vinita Kumari had held as follows:- “What this Court finds in the facts of the case is that petitioner is aggrieved by non-consideration of her case when others came to be so appointed on 24.11.2005. If the petitioner had been duly considered and found fit for appointment, she would have continued as Shiksha Mitra on contractual basis till 23.10.2006. The Bihar Panchayat Primary Teachers (Appointment and Service Conditions) Rules 2006 came into force on 1.7.2006. Rule 20(3) clearly provides that such Shiksha Mitra who had been appointed under the old procedure and were working as such on the date of coming into force of the new Rules shall be deemed to have been appointed as Panchayat Shikshak under the new Rules. Quite clearly if the petitienr had been properly and successfully considered a valuable right would have accrued to her. She has arbitrarily been denied the benefit of consideration under the same.” This Court would fail to understand as to how the aforesaid order in the case of Vinita 9 Kumari (supra) would be of any help to the petitioner, inasmuch as, it is on record that the petitioner had filed an application for the post of Shiksha Mitra in the year 2003 and was denied such appointment in the year 2003 which could have at best given him the benefit of continuation of 11 months ending in the year 2003 itself. In that view of the matter, this Court would not find any flaw in the order passed by the collector of Gaya district dated 02.03.2008, passed during the pendency of this writ application wherein, it was held that both the post of extremely backward class of Barsauna Panchayat had remained vacant but the same could not be filled up after abolition of the of the post of Shiksha Mitra. Relevant portion of the order of the Collector dated 02.03.2008 and 01.02.2007 being in conformity with rule 20(iii) of 2006 rules reading as follows:- jksLVj ds vuqlkj vfrfiNM+k oxZ gsrq nks lhV vkjf{kr gS ijUrq iapk;r }kjk vfrfiNM+k oxZ ds ,d Hkh vH;FkhZ dk fu;kstu ugha fd;k x;k gS A ;|fi Jh fljktmn~nhu valkjh dk fu;kstu vR;ar fiNM+h tkfr ds jksLVj ij fd;k tk ldrk Fkk ijUrq ekuo lalk/ku fodkl foHkkx] fcgkj] iVuk ds i=kad&7@f”k{kk& 1&750@2006&1899] fnukad& 10-11-06 ds vuqlkj bl le; budk fu;kstu lEHko ugha gSA ;g foHkkxh; vkns”k bl izdkj gSA iapk;r izkjfEHkd f”k{kd ¼fu;kstu ,oa lsok “krZ½ fu;ekoyh 2006 dh dafMdk 20¼1½ esa izko/kku gS f dbl fu;ekoyh ds izHkkoh gksus dh frfFk 01-07- 06 ls iapk;r f”k{kk fe= ds fu;kstu ls lacaf/kr iwoZ ds lHkh fu;ekoyh vkns”k@vuqns”k vkfn fujLr fd;k tk pqdk gSA ekuo lalk/ku fodkl foHkkx] fcgkj] iVuk ds i=kad&7@f”k{kk & 1&750@2006&1899] fnukad& 10-11-06 ,oa i=kad 108 fnukad& 01-02-07 }kjk mDr fu;ekoyh dafMdk 20¼1½ ds lanHkZ esa vuqorhZ funs”k fuxZr gS fd vxj fdlh iapk;r f”k{kk fe= ds fu;kstu ds laca/k esa f”kdk;r izkIr gksrh gS vkSj tkapksijkUr voS/k ik;k tkrk gS rks gVk;k tk lrk gSA ijUrq muds LFkku ij fdlh u, iapk;r f”k{kk fe= dk fu;kstu fu;ekuqdwy laHko ugha gSA 10 therefore does not suffer from any error. It is quite manifest from the simultaneous reading of the guidelines prepared for filling up the post of Shiksha Mitra and the statutory rules for appointment on the post of Panchayat Shikshak that the panel of the post of Shiksha Mitra cannot be acted upon for filling up the post of Panchayat Shikshak. Abolition of the post of Shiksha Mitra being fait accompli and a creature of statutes, any person only on the basis of being empanelled for the post of Shiksha mitra cannot claim a right for being appointed on the post of Shiksha Mitra after its abolition and/or appointment on the post of Panchayat Shikshak. In service jurisprudence the abolition of the post has got its own meaning and consequence and it cannot be lightly interfered by enforcing a speculative right based on pre-supposition that had it been done like that it could have resulted into something else. Thus the inescapable position is that once a person was not selected and appointed on the post of Shiksha Mitra during the subsistence of the scheme of the post of Shiksha Mitra and he did not move this Court claiming his right in the period when the post of Shiksha Mitra was in existence, he cannot after abolition of the post 11 of Shiksha Mitra claim the post of Shiksha Mitra for his being absorbed on the post of Panchayat Shikshak. To that extent this Court is in complete agreement with the Government decision contained in circular of the Human Resources Development Department in its letter dated 7/Shiksha-1-750/2006-1899 dated 10.11.2006, laying down that no appointment on the post of Panchayat Shikshak can be made from the panel of Shiksha Mitra. Thus having given anxious consideration to the facts and circumstances of this case as also to the legal facets as discussed above this Court must hold that the prayer of the petitioner in this writ application for appointment on the post of Shiksha Mitra/Panchayat Shikshak has got no merit. That being so, this Court does not find any merit in this writ application and the same is, accordingly, dismissed. (Mihir Kumar Jha, J) Patna High Court Dated the 19th July 2011 N.A.F.R./Ranjan