IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.503 of 2009 UMESH CHANDRA SHIVA, S/O RAMDEO RAI, R/O VILLAGE-HARINARAYANPUR, GARAHAIA PANCHAYAT RAJ, P.O-MEHESI, P.S.MADHUBAN, BLOCK-MADHUBAN, DISTT- EAST CHAMPARAN. ……………………RESPONDENT/APPELLANT. Versus 1.THE STATE OF BIHAR. 2.THE BLOCK DEVELOPMENT OFFICER, MADHUBAN, EAST CHAMPARAN. 3.THE MUKHIYA, GRAM PANCHAYAT RAJ GARAHIA, BLOCK-MADHUBAN, P.S.MADHUBAN, DISTT-EAST CHAMPARAN. 4.THE PANCHAYAT SECRETARY, GRAM PANCHAYAT RAJ GARAHIA, BLOCK MADHUBAN, P.S. MADHUBAN, DISTT- EAST CHAMPARAN. ……………RESPONDENTS/RESPONDENTS. 5.ALOK KUMAR, S/O LATE SHIV SHANKAR PRASAD SINGH, R/O VILLAGE-KHODADPUR, POLICE STATION- MADHUBAN,DISTT-EAST CHAMPARAN. ………PETITIONER/RESPONDENTS. with LPA No.504 of 2009 UMESH CHANDRA SHIVA, S/O RAMDEO RAI, R/O VILLAGE- HARINARAYANPUR, GARAHAIA PANCHAYAT RAJ,P.O- MEHESI, P.S.MADHUBAN, BLOCK-MADHUBAN, DISTT-EAST CHAMPARAN. ……………………RESPONDENT/APPELLANT. Versus 1.THE STATE OF BIHAR. 2.THE DISTRICT MAGISTRATE, EAST CHAMPARAN. 3.THE DISTRICT SUPERINTENDENT OF EDUCATION, EAST CHAMPARAN. 4.THE BLOCK DEVELOPMENT OFFICER, MADHUBAN, DISTT- EAST CHAMPARAN. 5.THE MUKHIYA, GRAM PANCHAYAT RAJ GARAHIA, BLOCK- MADHUBAN, P.S.MADHUBAN, DISTT-EAST CHAMPARAN. 6.THE PANCHAYAT SECRETARY, GRAM PANCHAYAT RAJ GARAHIA, BLOCK MADHUBAN, P.S. MADHUBAN, DISTT- EAST CHAMPARAN. 7.THE DISTRICT APPELLATE ATUHORITY, MOTIHARI, EAST CHAMPARAN. …………RESPONDENTS/RESPONDENTS. ----------- 2 07/ 14.03.2011 These two appeals arise out of the common judgment and order dated 17.03.2009, whereby and whereunder the writ petition filed by the respondent Alok Kumar C.W.J.C. No. 16423/2008 has been allowed by setting aside his order of termination. It has to be noted that the prayer in another writ petition of this appellant, C.W.J.C. No. 1063 of 2009, seeking a direction for his own appointment after setting aside the appointment of the respondent Alok Kumar, who was the writ petitioner in C.W.J.C. No. 16423/2008 has been rejected. 2. Mr. Rajendra Prasad Singh, learned senior counsel appearing on behalf of appellant Umesh Chandra Shiva while assailing the common order in both the writ petitions has contended that once it becomes an admitted fact that the respondent Alok Kumar was a candidate of general category and could not have been appointed on the post of Siksha Mitra in view of there being only three vacancies for the post of Siksha Mitra in the general category, the other conclusions arrived by the learned single 3 judge as with regard to upholding the appointment of respondent Alok Kumar cannot be sustained. 3. Per contra Mr. Sudhir Singh, learned counsel appearing on behalf of the respondent Alok Kumar has submitted that once this Court would go into the respective details of selection on the post of Siksha Mitra, it would automatically discover that Alok Kumar was the third candidate of general category, inasmuch as, one Laxman Kumar Pankay was the candidate of most backward category who could not have been appointed against the post of general category. He would therefore, contend that the order of the learned Single Judge should not be interfered as it has done substantial justice between the parties. 4. In the considered opinion of this Court the answer to the propositions raised above gets clear from paragraph-10 of the counter affidavit filed by the State, wherein it has been stated as follows:- “That for filling the vacancies, the reservation roster was to be followed according to which there were 4 three seats for the general male candidates category. It is needful to submit here for filling the general male category seats, it was essential to prepare a panel of all the candidates, from which three highest weightage holder candidates should have been selected. But during the enquiry, it was found that erroneously the selectors (panchayat)put the highest weightage holder candidate Sri Lakshman Kumar Pankay in the Most Backward Class Category. This candidate should have been in the general category list because he has the highest weightage of 22. The other two qualifying general category (male) candidates were Sri Amrit Kumar Singh and Sri Pankaj Kumar Mishra having the weightage of 19 and 17 respectively. The petitioner Sri Alok Kumar Singh comes at the 4th place having the weightage of 15 and thus his selection was considered as a wrong selection and there were only three seats for the general male category.” From the reading of the aforementioned 5 paragraph two things are clear, namely that there were in all five vacancies for the male candidates out of which three were meant for general category and two for the reserved category. Admittedly Laxman Kumar Pankay who had applied for the said post treating himself to be the candidate of reserved category and availing the benefit of age relaxation for candidates of reserved category had secured highest marks and weightage points, being 22 among all the candidates. Once this fact is beyond any dispute, the selection and appointment of Laxman Kumar Pankay had to be made only in general category which in turn could have left only next two vacancies for general category and as it has been explained in the counter affidavit, these two had gone to Amrit Kumar Singh and Pankaj Kumar Mishra having secured weightage of 19 and 17 weightage points respectively. The weightage point of Alok Kumar the contesting respondent being only 15, he could not and should not have been therefore, appointed against the post of general category and as such his selection and appointment on the 6 post of Shiksha Mitra and eventual absorption on the post of Panchayat Shikshak has to be held as bad and unsustainable. 5. A question, would now arise as to how the vacancies which has been created on account of cancellation of the appointment of Alok Kumar has to be filled up. Mr. Singh would contend that as the complaint was pending on the date Alok Kumar got absorbed on the post of Panchayat Shikshak i.e. 01.07.2006, the benefit of such cancellation of appointment should go to the appellant writ petitioner Umesh Chandra Shiva as he was found to be best among the backward category. Interesting though the aforesaid submission may be but then the Rules namely Bihar Prarambhik Shikshak Nioyojan and Shikshak Niamawali Adhiniyam-2006, does not permit selection earlier made for the post of Panchayat Shiksha Mitra to be either saved or retained for any purpose, inasmuch as, Rule-18 and 20 read in tandem would make it absolutely clear that all circulars and guidelines relating to selection and appointment on the post of Panchayat Shikshak were repealed as 7 a whole and therefore, once the saving clause also was limited to reserving the rights of already appointed Shiksha Mitra either in respect of their salary or service condition, it has to be necessarily held that the earlier selection and preparation of panel in which Umesh Chandra Shiva had been found to be best among the backward candidate was limited for the post of Panchayat Shiksha Mitra and on that basis, he cannot be appointed on the post of Panchayat Shikshak after 01.07.2006 in view of the aforementioned 2006 Rules. 6. We, therefore, while setting aside the order of the learned Single Judge would observe that now the vacancy created on account of cancellation of appointment of Alok Kumar as Panchayat Shikshak has to be filled up treating it to be a post for reserved category and for that selection process in terms of 2006 Rules must be undertaken and completed within a period of three months from the date of receipt/production of a copy of this order, wherein the case of the Appellant writ petitioner be also considered with other 8 eligible candidate of reserve category in accordance of law. 7. It is made clear that if there be any further vacancy for the posts of Panchayat Shikshak for general candidates, the same may also be filled up in accordance with law in which the case of Alok Kumar with other eligible candidates may be considered. 8. In the result both the appeals with the aforementioned observations and directions, are allowed and the order of the learned Single Judge so far it relates to appellant and Respondent Alok Kumar is set aside and C.W.J.C. No. 16423/2008 filed by Respondent Alok Kumar is dismissed. There would be, however no order as to costs. Ranjan/ Surendra (T. Meena Kumari,J) (Mihir Kumar Jha,J)