IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15059 of 2006 JITENDRA PRASAD, son of Shiw Chandra Prasad, resident of village Sigari Bigari, P.O. Sigari Bigari, P.S. Ram Nagar District West Champaran … Petitioner Versus 1. THE STATE OF BIHAR through Secretary, Govt. of Bihar, Department of Elementary and Adult Education, Patna 2. Secretary Department of Elementary and Adult Development Department, Govt. of Bihar, Patna 3. Director, Elementary Education, Human Resources Development Department, Govt. of Bihar, Patna 4. District Magistrate cum Chairman District Working Committee, Sarva Siksha Abhiyan, West Champaran at Bettiah 5. District Superintendent of Education cum District Programme Co-ordinator, Sarv Siksha Abhiyan, West Champaran at Bettiah 6. Deputy Development Commissioner cum Vice Chairman District Working Committee Sarva Siksha Abhiyan, West Champaran at Bettiah 7. Block Education Extension Officer, Ram Nagar Block, District West Champaran 8. Mukhia, Taulaha Gram Panchayat, Taulaha P.S. Ram Nagar District West Champaran 9. Panchayat Secretary, Taulaha Gram Panchayat Ram Nagar District West Champaran 10. Ramadhar Prasad, son of Asharfi Prasad, village Lakshmipur, P.S. Sathi, District West Champaran at present residing at village Taulaha, P.S. Ram Nagar, P.O. Taulaha, District West Champaran 11. Gram Panchayat Raj Taulaha, P.O. Taulaha, District West Champaran through its Secretary … Respondents ----------- 4. 23.6.2011 Heard Mr. Ganpati Trivedi, learned counsel for the petitioner and the learned counsel for the State. The prayer of the petitioner in this writ application has two parts, namely, to quash the alleged illegal appointment of 2 respondent no.10 on the post of Panchayat Shiksha Mitra and bring back the petitioner on the post of Panchayat Shiksha Mitra on the vacancy caused by respondent no.10. The ground also for seeking such a relief is plain and simple that earlier it was the petitioner who was selected for Panchayat Shiksha Mitra but the official respondents had illegally dropped the name of the petitioner by substituting respondent no.10 in his place. Counsel for the petitioner, therefore, submits that this Court should hold such substitution of respondent no.10 in place of the petitioner to be bad and direct removal for respondent no.10, who has now been absorbed on the post of Panchayat Shikshak and consequently direct for appointment of the petitioner first as Panchayat Shiksha Mitra and then his absorption on the post of Panchayat Shikshak. Mr. Trivedi in this context has also brought on record an order of the District Teachers Appellate Authority, West Champaran in Case No. 274/2009 wherein the same issue having been raised by the 3 petitioner was refused to be answered by the authority on the ground of pendency of this very writ application. Mr. Chaubey, learned counsel appearing on behalf of the State, on the other hand, would submit that since the petitioner after filing of the writ application had availed alternative remedy of moving before the District Teachers Appellate Authority (hereinafter referred to as ‘the Authority’) he will have no right to continue with the present writ application and the same has to be dismissed as not maintainable. He would further submit that the petitioner even on merit has got no case, inasmuch as in course of enquiry it was found that the petitioner had a lesser mark in comparison to respondent no.10 and therefore, her such induction in the panel was corrected by replacement of respondent no.10. In the considered opinion of this Court even if the case of the petitioner is accepted there would be no question of her appointment/ absorption on the post of Panchayat Shikshak, inasmuch as it is only 4 the continuing Panchayat Shiksha Mitra as on 1.6.2006 who would get the benefit of being absorbed on the post of Panchayat Shikshak. That is how Section 20 Sub-clause (3) of the Panchayat Shikshak Act, 2006 has to be interpreted. Admittedly the petitioner was never appointed on the post of Panchayat Shiksha Mitra and therefore, he cannot claim his absorption on the post of Panchayat Shikshak. At the same time the petitioner can definitely agitate his grievance with regard to alleged induction/ replacement of respondent no.10 in the panel of Shiksha Mitra and for this purpose if the petitioner had moved the Authority which itself came into the year 2008 by way of amendment in section 18 of the Act he cannot be non- suited in this writ application inasmuch as such alternative remedy had come into only during the pendency of this writ application filed on 6.12.2006. To that extent this Court would also not find the approach of the Tribunal to be bad, inasmuch as when the same matter at the instance of the petitioner was 5 already subjudice before this Court, the Tribunal had rightly refused to examine the matter and pass any order which could have prejudiced either side. The petitioner in all fairness having moved the Authority ought to have withdrawn this application which could have enabled the Authority to pass a final order on the complaint filed by the petitioner against the selection and appointment of respondent np.10. The petitioner, however, has remained vigilant and conscious to his cause and has been agitating the issue either before this Court by filing the writ application in the year 2006 or before the Authority in the year 2009 and therefore, if he can still demonstrate before the District Teachers Appellate Authority that he was in a better candidate and his selection was made in a proper manner and that on merits also he was better placed on the basis of marks secured in the qualifying examination he must at least get this much of the relief by way of liberty of this Court to assail appointment of respondent no.10 on the post of Panchayat Shiksha Mitra and his 6 consequential absorption on the post of Panchayat Shikshak for paving way for consideration of the petitioner for fresh appointment on the post of Panchayat Shikshak on such a vacancy created on account of removal of respondent no.10. In that view of the matter, this Court would give liberty to the petitioner to file his complaint in terms of section 18 of the 2006 Act within a period of six weeks from the date of receipt/ production of a copy of this order and the Authority in the event of filing of such a complaint by the petitioner as against the selection and appointment of respondent no.10 initially on the post of Shiksha Mitra and subsequently his absorption on the post of Panchayat Shikshak, would go into the question on merits without non-suiting the petitioner on the ground of limitation. It is, however, made clear that the Authority in course of taking a decision on merit will not be in any way guided by its earlier observation/ conclusion reached in its order dated 29.7.2010 in Case No. 274/2009 and would take a fresh decision 7 after giving notice and opportunity of personal hearing both to the petitioner as also to respondent no.10. It goes without saying that if the selection and appointment of respondent no.10 on the post of Panchayat Shikshak and eventually absorption as a Panchayat Shiksha Mitra is found to be bad by the District Teachers Appellate Authority the resultant vacancy caused shall be filled up in accordance with 2006 Rules in which the petitioner also shall be given an opportunity of being considered provided he also fulfils the requisite qualification as laid down in the Rules. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/