IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1652 of 2007 MEENA KUMARI W/o Sheo Narayan Singh, resident of Village Katrakala, P.S. Mohania, Distt. Kaimur, at Bhabua. Versus 1. THE STATE OF BIHAR 2. The District Magistrate, Kaimur at Bhabua 3. The District Superintendent of Education (D.S.E.) Kaimur, Bhabhua. 4. Ram Briiksh Pal S/o not known, Mukhia of Katrakala Block, P.S. Mohania, Distt. Kaimur at Bhabhua. 5. Smt. Mangla Kumar W/o sri Vindhyachal Chaudhary resident of village Bagni Kala P.S. Mohania, Dist. Kaimur, Bhabhua. 6. Smt. Seema Kumari W/o Sri Chandra Shekhar Singh of Village Bagnikala, P.S. Mohania, Distt. Kaimur. 7. Smt. Seema Kumari W/o Sri Vijay Kumar Singh Resient of village Bagnikala, P.S. Mohania District Kaimur at Bhabua. ----------- 2 1.9.2010 Having heard counsel for the petitioner and counsel for the State as with regard to the following relief. “That by the present writ petition, the poor and helpless petitioner craves indulgence before this Hon’ble Court for issuance of a writ in the nature of Mandamus directing the respondents to appoint her, with all arrear, current and subsequential benefits, on the post of “Shikshas Mitra” with effect from 2.6.2005, the date on which she must have been appointed on the said post but due to malafide and ulterior motives of the respondents, unauthorized persons Respondent no. 5, 6 and 7 have been illegally and unconstitutionally appointed, an subsequently the unconstitutionally and illegally, appointments of respondent nos. 5, 6 and 7 have been cancelled by the State respondents but on place of these unauthorized appointments, appointment of this petitioner must have been done from the retrospective effect i.e, on 2.6.2005 itself, but still the case of the petitioner is pending before the respondents for consideration and further for issuance of any other appropriate writ or writs, direction or directions as it may be deemed fit and proper to the facts and circumstances of this case.” this Court must hold that on account of abolition of the post of Panchayat Shiksha Mitra w.e.f. 1.7.2006 in view of rules framed by the State Government in exercise of power under 2 Article 243 of the Constitution, namely, fcgkj iapk;r izkjafHkd f”{kd (fu;kstu ,oa lsok ”RrZ ) fu;keoyh] 2006 the appointment of the petitioner on the post of Shiksha Mitra is not possible. Once the post stands abolished any earlier order/ absorption/ direction made even by the authority for appointment of the petitioner on the post of Shiksha Mitra cannot be carried out in absence of post. Counsel for the petitioner, however, would submit that as there was already existing direction in case of the petitioner by which she ought to have been appointed on the post of Shiksha Mitra and consequentially could have also become eligible for her absorption on the post of Panchayat Shikshak, this Court can still direct the authority to first appoint the petitioner on the post of Shiksha Mitra and thereafter absorbed her service as Panchayat Shikshak. For this purpose counsel relies on rule 20 of the aforementioned rules. Alternatively, counsel has submitted that if this Court is not inclined to give such relief to the petitioner, she may be allowed to approach before the appellate authority and for this purpose he relies on rule 18 of 2006 rules which stands amended by notification dated 25.8.2008 by inserting new provision of appeal. Counsel for the State, on the other hand, would submit that the petitioner was never appointed nor working on the post of Shiksha Mitra prior to 1.7.2006 and as such she cannot get the benefit of absorption on the post of Panchayat Shikshak, inasmuch 3 as, Rule 20 is quite specific as with regard to absorption of such persons who were appointed on the post of Shiksha Mitra. He would also submit that Rule 18 will not be applicable in the case of the petitioner, inasmuch as, that only relates to the complaint relating to appointment on the post of Panchayat Shikshak under 2006 Rules. In the considered opinion of this Court, counsel for the State is correct. Section 20 of the 2006 Rules is repeal and saving clause of the rules which reads as follows:- “fujlu ,oa O;ko`fr& (i) bl fu;ekoyh ds izHkkoh gksus dh frfFk ls xzkeh.k {ks= esa izkjafHkd f”{kdksa@”kjhfjd f”{kdksa@ iapk;r f”{kk fe= ds fu;kstu ls lacaf/kr iwoZ dh lHkh fu;ekoyh] ladYi] vkns”] vuqns” vkfn fujLr ekus tk;saxs A (ii) fdUrq bl fujlu ds gksrs gq, Hkh iwoZ ds fu;ekoyh] ladYi] vkns”] vuqns” vkfn ds rgr fu;qDr f”{kdksa ds osrukfn ,oa lsok ”RrksZ ij bldk izHkko ugha iM+sxk A (iii) fdUrq iwoz ds ifji=] vkns”] vuqns” ds vkyksd esa fu;ksftr ,oa dk;Zjr iapk;r f”{kk fe= bl fu;ekoyh ds rgr iapk;r f”{kd ds :Ik es ekus tk;saxs A fcgkj jkT;iky ds vkns” ls] (enu eksgu >k) vk;qDr ,oa lfpo From the said rules two things are clear that the earlier instructions as with regard to Panchayat Shiksha Mitra including appointment, continuation etc. came to an automatic end on the date of enforcement of rules. Thus, if there was any instruction given by any authority to any authority for appointing the petitioner on the post of Panchayat Shiksha Mitra which could not shape into reality by issuance of an appointment letter and 4 consequently joining of the petitioner on the post of Siksha Mitra as on 30.6.2006, she cannot get the benefit of any instruction already issued. That is how Rule 20 (iii) specifically stresses that if any person who had already been employed and was working as Panchayat Shiksha Mitra prior to enforcement of 2006 Rule will be deemed to have been appointed on the post of Panchayat Shikshak. This deeming clause, therefore, pre-supposes working Shiksha Mitra and not Shiksha Mitra who could not to be appointed and had only a right or an expectation to be appointed. This Court would therefore hold that any inter departmental report of the District Superintendent of Education to the Collector submitted in the year 2008 could not be made the basis for now appointing the petitioner on the post of Shiksha Mitra and to that extent this Court must reject submission of the learned counsel for the petitioner seeking a direction for fresh appointment of the petitioner on the post of Shiksha Mitra. The next question would be, can a person like the petitioner who was never appointed on the post of Panchayat Shiksha Mitra and her case only remained pending for appointment on the post of Shiksha Mitra can avail remedy of appeal provided under 2006 Rules. Answer again can be found in Rule 18 of 2006 Rules which originally read as follows:- “f”dk;r& bl fu;ekoyh ds v/khu iz[k.M f”{kdksa ds fu;kstu] LFkkukUrj.k vFkok lsok ”RrksZ laca/kh ekeys esa fdlh Hkh izdkj dh f”dk;r ij fu.kZ; ysus dh ”fDr mi fodkl vk;qDr dh gksxh 5 rFkk iapk;r f”{kd ds ekeys esa iz[k.M fodkl inkf/kdkjh dh gksxh A lacaf/kr inkf/kdkjh vf/kdre 30 fnuksa ds vUnj f”dk;rksa ij fu.kZ; ns nsaxsa A” It has to be taken into account that if 2006 Rules came into force on 1.7.2006 only the initial appointment on a post of Panchayat Shikshak covered by 2006 Rules could have been made subject matter of complaint before the D.D.C and Block Development Officer depending on the nature of appointment i.e. either Prakhand Shikshak or Panchayat Shikshak. It was only the said Rule 18 which was substituted by amendment in the year 2008 by inserting a fresh provision that such appeal could be heard only in respect of person made under this Rule. Rule 18 as amended, quoted hereinbelow reads as follows:- “vihy& bl fu;ekoyh ds v/khu fu;kstu ls lEcfU/kr vihy lquus dh ”fDr ftyk Lrj ij ljdkj }kjk xfBr ,d ;k ,d ls vf/kd lnL;ksa dh izkf/kdkj dh gksxh A ekuo lalk/ku fodkl foHkkx ds }kjk izkf/kdkj LFkkiuk ,oa lsok ”RrksZ dk fu/kkZj.k fd;k tk;sxk A vihyh; izkf/kdkj dk xBu lsok fuo`r fcgkj U;kf;d lsok] Hkkjrh; iz”klfud lsok] fcgkj iz”klfud lsok] fcgkj f”{kk lsok ds inkf/kdkfj;ksa ,oa f”{kkfonksa ls fd;k tk;sxk A” Once this position becomes clear that the petitioner was never appointed as a Panchayat Shikshak nor her case for appointment of Panchayat Shikshak was ever under consideration, there would be no difficulty in holding that Rule 18 cannot be made applicable in the case of the petitioner as her case all along was for appointment on the post of Shiksha Mitra. 6 That being so, this application by efflux of time has become infructuous and in fact the relief prayed for in this writ application, filed on 7.2.2007, on account of abolition of post of Shiksha Mitra w.e.f. 1.7.2006 was thoroughly misconceived as also not maintainable. That being so, this application is dismissed. Abhay Kumar ( Mihir Kumar Jha, J.)