IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.5220 of 2010 (1) Ranjeet Kumar, son of Sri Uma Shankar Kumar, (2) Jaya Shrivastava, wife of Sri Jitandra Prasad Shrivastava, both of Ratanchak, PS Mirganj, (O.P. Hathwa), District Gopalganj – Petitioners. Vs. (1) The State of Bihar, (2) The Secretary, Primary & Adult Education Department, Bihar, Patna. (3) The Collector cum District Magistrate, Gopalganj. (4) The District Superintendent of Education cum District Programme coordinator, Gopalganj. (5) The Block Dev. Officer, Hathwa, Gopalganj. (6) The Block Education Extension Officer, Hathwa, Gopalganj. (7) Sri Bhrigu nath Rai, son of Late Sama Rai, village Murera, PS Mirganj, Dist. Gopalganj, presently Mukhiya, Gram Panchayat Raj, Ratanchak, PS Mirganj, Dist. Gopalganj. (8) Sri Ram Yadav, presently Panchayat Secretary, Gram Panchayat raj, Ratanchak, PS Mirganj, Dist. Gopalganj. (9) Sri Niwas Prasad, son of Sri Faudi Prasad, village Ratanchak, PS Mirganj, District Gopalganj. (10) Sri Raghav Sah, son of Sri Gopal Sah, village Ratanchak, Khansama Tola, PS Mirganj, Dist. Gopalganj. (11) Sri Dhiraj Ram, son of Late Hari Bhajan Ram, village Murera, PS Mirganj, Dist. Gopalganj. (12) Pintu Kumar, son of Late Hari Shankar Prasad, village Mathia, PS Mirganj, Dist. Gopalganj – Opp. Parties. With CWJC No. 15635 of 2004 1) Ranjeet Kumar, son of Sri Uma Shankar Kumar, 2) Jaya Shrivastava, wife of Sri Jitandra Prasad Shrivastava, both of Ratanchak, PS Mirganj, (O.P. Hathwa), District Gopalganj – Petitioners. Vs. 1 The State of Bihar, 2 The Secretary, Primary & Adult Education Department, Bihar, Patna. 3 The Collector cum District Magistrate, Gopalganj. 4 The District Superintendent of Education cum District Programme coordinator, Gopalganj. 5 The Block Dev. Officer, Hathwa, Gopalganj. 6 The Block Education Extension Officer, Hathwa, Gopalganj. 7 Sri Dhiraj Ram, son of Late Hari Bhajan Ram, village Murera, PS Mirganj, Dist. Gopalganj. 8 Pintu Kumar, son of Late Hari Shankar Prasad, village Mathia, PS Mirganj, Dist. Gopalganj – Opp. Parties. … For the petitioners: Mr.Manan Kumar Mishra and Avinash Kumar Pandey, Advocates. For the State: Ms. Ram Kumari @ Rani Singh, AC to G.A.II. For the private respondents: Mr Sanjay Kumar Singh and Mr Jitendra Narayan, Advocates. … 2 6 10.8.2011 The present restoration application has been filed for restoration of CWJC No. 15635 of 2004 which stood dismissed for default vide order, dated 14.12.2010. For the reasons stated therein, this restoration application it is allowed and CWJC No. 15635 of 2004 is restored to its original file. Now the writ petition is being taken up for final disposal. Opposite party no.7 is the then Mukhiya of the Gram Panchayat. Opposite party no. 8 is the Panchayat Secretary. These two opposite parties would not be directly affected by the order of this court and as such their appearance in this matter is not of importance. Opposite parties 11 and 12 have been deleted as perhaps they were of general category candidates who did not join on the post of Panchayat teachers. The present writ petition has been filed challenging the order of the District Magistrate, Gopalganj, dated 23.8.2004 by which he has rejected the application filed on behalf of the petitioners to be appointed as Panchayat teachers, on the ground, that they had higher marks than the respondents in their matriculation examination. The case of the petitioners is that they had applied for appointment as Shiksha Mitra. Petitioners rely on a chart at Annexure 2 which indicates the marks of the candidates. The respondents are at item nos.6 and 10 of the chart, whereas the petitioners are at item nos. 14 and 18 in the chart, dated 10.4.2003. 3 The petitioners being aggrieved by the fact that they were not appointed as Shiksha Mitra challenged the appointment of the respondents before the District Magistrate. The District Magistrate has considered the enquiry report of the District Education Officer. It has been mentioned that the enquiry report indicates that the appointments were not made in accordance with the marks obtained by the candidates in the matriculation examination. Hence this report does not give comments on the procedure adopted while making the appointment. The District Magistrate has also come to a finding that the petitioners were not present when the counseling was done. It is submitted by that these complaints have been filed by Uma Shankar Kunwar, chairman of Vidyalaya Shiksha Committee, who also happens to be the father of petitioner no.1. Counsel for the petitioners objects to the aforesaid finding of the District Magistrate on the ground that according to the petitioners, this finding is based on mere oral statement of the Mukhiya. However, the District Magistrate has not taken this fact alone into account, rather, has considered that the petitioners at no stage, much less before the District Magistrate, had produced any certificate showing marks obtained by them or any documents, of their date of birth in support of their case. On consideration of the entire materials including the fact that the post of Shiksha Mitra no longer exists, it would be difficult for this court to undo all those acts which were done in 4 compliance with the rules that were framed for appointment of Shiksha Mistra. Another aspect of the matter which has been pointed out by counsel for the respondents is that the marks of the petitioners cannot be compared with the marks of respondents 9, 10 and 13 and 14 as these respondents belonged to reserved category. The marks of the petitioners, therefore, can only be compared to a person appointed in general category. Learned counsel for the respondents also relies on an unreported decision of this court, dated 1.9.2010 passed in CWJC No. 52/2007 (Meena Kumari vs. State of Bihar and others) to submit, that this court has already held that the court cannot give a direction for fresh appointment of the petitioners on the post of Shiksha Mitra, when the rules for making such appointment have already been replaced by 2006 Rules. Perhaps the conclusion of learned single Judge would not be applicable in the case of the petitioners as they had challenged the appointment of the respondents much before the abolition of the posts of Shiksha Mitra. Nevertheless, this court finds it difficult to interfere with the order of the District Magistrate for the reasons as stated in the order. Accordingly, there is no merit in this writ petition. It is dismissed. haque ( Sheema Ali Khan, J.)