IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15805 of 2009 ANJU KUMARI D/O SRI VAKIL MANDAL AND W/O SRI GANESH PRASAD SINGH R/O VILL-BHAGWATIPUR, P.S-BIHPUR, DISTT- BHAGALPUR Versus 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVT.OF BIHAR, PATNA 3. DIRECTOR, PRIMARY EDUCATION, BIHAR, PATNA 4. PRAMUKH, BIHPUR PANCHAYAT SAMITI, DISTT- BHAGALPUR 5. EXECUTIVE OFFICER, BIHPUR PANCHAYAT SAMITI, DISTT- BHAGALPUR 6. BLOCK DEVELOPMENT OFFICER, BIHPUR BLOCK, DISTRICT – BHAGALPUR 7. BLOCK EDUCATION EXTENSION OFFICER, BIHPUR BLOCK, DISTRICT – BHAGALPUR 8. VINITA KUMARI D/O SRI GAURI SHANKAR MANDAL, RESIDENT OF VILLAGE – JHIKATIA, P.O. MAHESHKHUNT, P.S. MAHESHKHUNT, DISTRICT – KHAGARIA 9. IMRANA KHATOON, WIFE OF MD. PARVEZ AKHTAR, VILLAGE – JHANDAPUR, P.S. BIHPUR, DISTRICT – BHAGALPUR. ………………… RESPONDENTS. With CWJC No.10963 of 2009 IMRANA KHATOON, WIFE OF MD. PARVEJ AKHTAR, RESIDENT OF VILLAGE JHANDAPUR, MOMIN TOLA, POLICE STATION – BIHPUR, DISTRICT – BHAGALPUR. ……… PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, BIHAR, PATNA. 3. THE DISTRICT MAGISTRATE, BHAGALPUR, DISTRICT – BHAGALPUR. 4. THE DISTRICT SUPERINTENDENT OF EDUCATION, BIHPUR, DISTRICT – BHAGALPUR. 5. THE BLOCK DEVELOPMENT OFFICER, BIHAR, DISTRICT – BHAGALPUR. 6. THE BLOCK EDUCATION EXTENSION OFFICER, BIHPUR, DISTRICT – BHAGALPUR. 7. ANJU KUMARI, DAUGHTER OF WAKIL MANDAL, RESIDENT OF VILLAGE BHAGWATIPUR, POLICE STATION – BIHPUR, DISTRICT – BHAGALPUR. 8. THE DISTRICT TEACHERS EMPLOYMENT APPELLATE AUTHORITY, BHAGALPUR THROUGH ITS MEMBER, THE DISTRICT TEACHERS EMPLOYMENT APPELLATE AUTHORITY, BHAGALPUR, BIHAR. ………. RESPONDENTS. For the Petitioners : - Mr. Rajendra Prasad, Adovcate (in CWJC No. 15805 of 2009) Mr. Pramod Kumar, Advocate Mr. Ritesh Kumar, Advocate Mr. Siya Ram Sah, Advocate (in CWJC No. 10963 of 2009) For the State : - Mr. Subhash Pd. Singh, G.A.8 (in CWJC No. 15805 of 2009) Mr. Parth Sarthi, G.P. 11 (in CWJC No. 10963 of 2009) 2 For Respondent No. 9 : - Mr. Siya Ram Sahi, Advocate (in CWJC No. 15805 of 2009) For Respondent No.7 Mr. Pramod Kumar, Advocate (in CWJC No. 10963 of 2009) ----------- 04/ 26.07.2011 Both the writ applications have been taken up together and being disposed of by a common order as petitioners in both the writ applications are seeking relief of their appointment as Block teacher in Bihpur Block, in the district of Bhagalpur. Prayer of petitioner Anju Kumari (C.W.J.C. No. 15805 of 2009) is for quashing of the decision taken by the Appointment Committee in its meeting dated4.9.2009, whereby Vinita Kumari, Respondent No. 8 was directed to be appointed against the vacancy of Block teacher in the reserved category of most backward (female) and also for a direction to issue appointment letter in favour of the petitioner. Petitioner Imrana Khatoon (C.W.J.C. No. 10963 of 2009) has prayed for quashing of order contained in Memo No. 683 dated 10.8.2009 passed by the District Teachers Appointment Appellate Tribunal, Bhagalpur, whereby appointment of petitioner has been cancelled and direction has been issued to appoint an eligible candidate on the post of Block teacher, within a fortnight. This petitioner has also 3 prayed for a direction to reinstate her on the post of Block teacher, with all consequential benefits. Petitioners in both the writ applications belong to the reserved category of most backward (female). Both of them claim to possess requisite qualification for being appointed as untrained Block teacher and this is the reason that both of them had applied for the post of Block teacher, in response to vacancies advertised in Bihpur Block, in the district of Bhagalpur, for the post of Block Teacher. The vacancy position, as per the advertisement, in the reserved category of most back class (female) there were 5 vacancies of Block teachers. A merit list was prepared and notice was published in the daily newspaper on 21.7.2007, fixing the date of interview/counselling on 23-24 July, 2007. Case of petitioner Anju Kumari (C.W.J.C. No. 15805 of 2009) is that Imrana Khatoon was not an applicant, as such she did not appear for counselling. A merit list of 37 candidates was published in which also name of Imrana Khatoon did not find place. So far Anju Kumari is concerned, her name figured at Serial No. 13 in the merit list with 57% marks and just above the 4 petitioner name of Vinita Kumari was at Serial No. 12 with 59% of marks. Appointment letters were issued, considering the fact that candidates at Serial Nos. 1, 2, 3, 6, 9, 10 and 12 were already working as Panchayat teachers at different schools in different Panchayats, as such view of the resolution of the Appointment Committee, no appointment letters be issued to them.. Accordingly, appointment letters were issued in favour of Miku Kumar at serial no. 4, Suman Kumari at serial no. 5, Nina Kumari at serial no. 7 and Maheshya Anwar at serial no. 8. The 5th appointment letter, according to the petitioner should have been given to the petitioner for the reason that Vinita Kumari, who was at serial no. 12 was already working as Block teacher in Khagaria district, but Imrana Khatoon was appointed, though she had not applied for the post, and her name was not in the panel. The grievance of petitioner Anju Kumari is that on account of appointment of Imrana Khatoon, genuine claim of the petitioner was not considered by the Respondent-authorities. The petitioner, Anju Kumari, challenging the appointment of Imrana Khatoon filed 5 C.W.J.C. No. 2316 of 2009, which was disposed of giving liberty, for filing an appeal before the Appellate Tribunal. The appeal preferred by Anju Kumari was allowed and a direction was issued for issuing appointment letter in her favour, but the order was not implemented. The present writ application has been filed by the petitioner, since, the direction issued by the Appellate Authority was not implemented, and no appointment letter was issued by the Respondents. Imrana Khatoon, petitioner in C.W.J.C. No. 10963 of 2009 has filed this application for quashing of the appellate order, on the ground that the appellate authority has passed the order against the record, ignoring that she had applied for the post vide application no. 1291 and appeared for counselling. The Selection Committee, inadvertently left her name from being included in the merit list, Most Backward Category (Female). Her name was erroneously included in the merit list of Most Backward Category (Male), though she possessed highest 69.2% of marks. She filed her application before the ‘Pramukh’ for correction of this error and after examination of connected record her 6 name was included in the merit list of Most Backward Category (Female), since, she possess 69.2% marks, she was placed at Serial No. 1 in the merit list. Appointment letter was issued in her favour, but the appellate authority without considering the record has passed the order cancelling her appointment, on this ground that Imarana Khatoon was not an application and did not participate in the counselling. On perusal of the statement in both the writ applications as well as counter affidavits filed by the respondents, I find that the appellate authority passed an order without properly looking into connected records relating to selection/appointment. The State in its counter affidavit filed in C.W.J.C. No. 15805 of 2009 has admitted that Imrana Khatoon was one of the applicant and having highest marks she should have been placed at the top of the merit list prepared for Most backward female category. Subsequently, this error was noticed and Imrana Khatoon was appointed. In this view of the matter, the order assed by the District Teachers Appointment Appellate Tribunal, Bhagalpur contained in Memo No. 683 dated 10.8.2009 is fit to be quashed. 7 Accordingly, order passed by the Appellate Tribunal, Bhagalpur is quashed. Another question which needs consideration, is whether Imrana Khatoon, who possessed Fokania degree, which is equivalent to Intermediate, could be considered eligible, for being appointed as Block Teacher, on a general Teacher’s post. Moulvi, Fokania, Up-shashtri as well as vocational degress, as such qualifications, which are though considered as equivalent to Intermediate degree, but as per2006 Rules as well as 2008 Rules, on the basis of these degrees, a candidate can be appointed only on a post, specially assigned for teaching, Sanskrit language. A person having Up-shastri degree can be appointed for teaching Sanskrit subject and the candidates having Moulvi and Fokania degree, can be appointed for teaching Urdu. In this circumstance, Imrana Khatoon could have been appointed as a teacher against vacancy in Urdu quota. Her appointment as a general teacher, cannot be considered as legal appointment, for the reason that she did not possess requisite educational qualification for that post. Counsel for petitioner Imrana Khatoon has 8 very fairly contended that, petitioner will not claim for any relief, which is not provided under the Rules. However, Mr. Sahi, counsel for the petitioner, Imrana Khatoon has drawn my attention towards a decision reported in 2011(1) PLJR page 530, where in a similar circumstance, on consideration of a letter issued by the Special Secretary –cum- Director, Secondary Education contained in Memo No. 234 dated 23.01.2006, relief was allowed to the writ petitioner, directing the respondent- authorities to consider for appointment of the petitioner against any vacant Urdu teacher’s post in any of the concerned Block of the district. Post, against which the petitioner was appointed being a general teacher’s post for which she did not possess requisite qualification, no order can be passed for her reinstatement against that post, but the respondent-authorities are directed to find out any vacant post in any of the concerned Block in the district, against which she can be appointed/adjusted, considering her position in the merit list of most backward category female. Counsel for the petitioner submits that petitioner has sought for an information under the Right 9 to Information Act and as per the information made available there are two vacancies available at Madhya Vidyalaya, Jamalpur and Madhya Vidyalaya, Babhangama, which are the posts of Block teacher. Accordingly, respondent-authorities are directed to examine the contention made by the petitioner’s counsel, in case those vacancies are existing, petitioner Imrana Khatoon be appointed against any of those posts, considering her eligibility and position in the merit list. Anxiety of petitioner Anju Kumari is that in case Vinita Kumari , who is at serial no. 12 in the merit list, just above the petitioner was considered for appointment against 5th vacancy she will looses her chance. Vinita Kumari was impleaded as Respondent No. 8 in this writ application. Notices were also issued to Vinita Kumari but despite the service of notice, she did not choose to appear in this case neither she has filed any counter affidavit showing her willingness to be appointed against 5th vacancy available in Bihpur block. As informed by the petitioner’s counsel, Vinita Kumari is already working at Khagaria and that may be one of the reason for showing reluctance on the part of 10 Respondent No. 8; otherwise also, since Imrana Khatoon is not eligible to be appointed against general teacher’s post, petitioner Anju Kumari can be adjusted against the post vacated by Imrana Khatoon. Imrana Khatoon, will be considered for her appointment against a vacancy in Urdu unit, Vinita Kumari has not shown any interest, in the given facts and circumstances, petitioner Anju Kumari being only remaining candidate for being appointed against 5th post of Block teacher, in the reserved category of Most Backward Category (Female), is directed to be appointed on the post in the reserved Most Backward Category (Female). The respondent-authorities are directed to consider her case for appointment and issue appointment letter in her favour within four weeks from the date of production/communication of this order. Both the writ applications are allowed. DKS/ (Mridula Mishra, J.)