IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11373 of 2009 1. Md.Ashraf Hussain 2. Md. Muzaffar Hussain 3. Anayatul Haque 4. Gulam Arshad 5. Imteyaz Alam 6. Md. Bayejid 7. Md. Usman Gani 8.Nitya Nand Paul 9. Kazi Gulam Murtoza -------------- Petitioners Versus The State Of Bihar & Ors . ----------- For the Petitioners:- Mr. Tej Bahadur Singh, Senior Advocate With Mr. B.S. Pandey,Advocate For the Respondents:- Mr. Manoj Priyadarshi, SC 12 6 25.07.2011 Petitioners are Graduate in Science and Arts. They had applied for appointment as Block Teacher in different blocks of Katihar District but their names could not be included in the list of selected candidates, for the reason that merit list was prepared on the basis of Intermediate marks of candidates. Petitioners, though higher qualification of graduate, they were not selected because they had lessor marks in Intermediate examination and the appointment/selection had been made as per provision under Rule 9(IV) of Rule 2006 and amended Rule 2008. Rule 9 (IV) of Bihar Panchayat Primary Teachers ( Appointment and Service Conditions) Rule, 2006 provides that panel for the appointment of Block Teachers shall be prepared by a 2 Committee constituted by Panchayat Samittee on the basis of marks obtained in Matric, higher secondary/Intermediate level and the percentage of marks obtained in two years teachers training/ BLD/B.Ed/ C.P.D, adding the Intermediate level marks with the training marks divided by two the percentage will be obtained and on that basis merit list will be prepared for appointment. Appointment Rule 2006 was amended in the year 2008 but Rule 9 (IV) of 2006 Rules was kept intact in the amended Rule, 2008. In 2008 amended Rules a new provision was inserted vide Rule 9 (X) in which preference was to be given in the matters of posting to Graduate teacher in Middle Schools and, at least two of them mandatorily were required to be Science Graduates, Only in case of non-availability graduate teachers, Intermediate Science Teachers could be posted. Petitioners being aggrieved on account of their non- selection, despite their higher graduate qualification filed an appeal before the District Teachers Appellate Tribunal, Katihar. The Appellate Tribunal interprted Rule 9 (IV) of 2006 and 2008 Rules as well as Rule 9 (X) in amended Rules, 2008. Interpretation of the Appellate Tribunal was that in 3 view of the amended Rule 9 (X) of 2008 Rules, merit list should be prepared of Graduate trained (ii) Graduate untrained (iii) Intermediate trained and Intermediate untrained candidates, giving preference to higher qualification a merit list should be prepared. This interpretation was made by the Appellate Tribunal considering the provision under Rule 9(X) which provided that in the Middle School in the matters of posting preference has to be given to Graduate Teachers and only in case of non-availability of gradate teachers, Intermediate teachers shall be posted. In the light of interpretation of Rule 9(IV) and 9(X) candidates with Graduate qualification should be given weightage, while selecting the candidates for appointment. If Graduate Teachers will be appointed only then they could be posted in the middle Schools giving them priority in posting. Appeal preferred by the petitioners were allowed but the direction issued by the Appellate Tribunal to prepare fresh merit list as per the direction and interpretation of the Appellate Tribunal was not complied, as such petitioners have filed this writ application for a direction to the respondent- authorities and the Member of the Selection 4 Committee to implement the order passed in Appeal Case No. 1137 of 2009 and accordingly prepare a fresh merit list in pursuance of the direction contained therein. The District Superintendent of Education, Katihar Respondent no.6 has filed a counter affidavit in which it has been stated the Rule 9 (IV) of 2006 Rules was kept intact even in the amended Rules, 2008, which provides that panel for the appointment of Block Teacher shall be prepared on the basis of the marks obtained by them at Intermediate level adding the training marks and divided by two. In the amended 2008 Rules 9(X) simply a provision has been made for giving preference to candidates having graduate degree in the matters of posting. Rule 9 (X) provides that in the matter of posting in Middle Schools, Graduate teachers will be given preference, at least two of them should be Science Graduate and only in case of non-availability of Graduate Teachers, Intermediate Science Teachers will be posted. This amendment in Rule 9 (X) has nothing to do with Rule 9 (IV). These are two independent provisions, having no connection with each other. So far preparation of merit list is concerned, candidates having graduate 5 degree, can also be selected on the basis of the marks obtained in Intermediate examination persons, but candidates having Graduate degree, but lessor marks in Intermediate examination, cannot claim any preference in their selection, as there is no such provision under the Rule. Interlocutory Application No. 723 of 2011 has been filed by Intervenor Dinesh Bin for being impleaded as respondent. The intervenor-respondent is Pramukh of Ajam Nagar Block and Chairman of the Teacher Selection Committee. His objection is that member of the Selection Committee being necessary party should have been impleaded as respondent. His statements are in support of the Statements made in the counter affidavit filed on behalf of respondent no.6. Intervention application is allowed. Dinesh Bin is impleaded as respondent. Mr. Tej Bahadur Singh, Senior Advocate appearing on behalf of the petitioner has submitted that admittedly the respondents have not filed any application before the superior forum, for quashing of the order passed by the District Appellate Tribunal, Katihar in Appeal Case No. 1137 of 2009. The Appellate Tribunal, constituted under Section 18 of 6 the Rules has been conferred with a jurisdiction to adjudicate the dispute, relating to selection, appointment, promotion and termination of Panchayat/Prakhand Teachers. Once the dispute is adjudicated, howsoever the order be erroneous, it is final and no authority of the State can refuse to implement it. Tribunal being an independent statutory authority, its order and direction are mandatorily to be implemented. It has also been submitted that issue relating to powers and authority of and statutory Appellate Tribunal, constituted for deciding the dispute, and what will be effect of non implementation of orders/directions of such Tribunals has been considered in a decision reported in 2010 (4) PLJR 24 (Mohammad Nasruddin Ansari Vs State of Bihar & ors.),. While deciding this issue, the Hon’ble Judge had considered a constitutional bench decision of the Apex Court in the case of Bhopal Sugar Industries Ltd. Vs. Income Tax Officer, Bhopal (AIR 1961 SC 182), wherein the Apex Court has held as follows:- “Where the Income Tax Officer had virtually refused to carry out the clear and unambiguous directions which a superior tribunal like the Income 7 Tax Appellate Tribunal, had given to him by its final order in exercise of its appellate powers in respect of an order of assessment made by him, such refusal is in effect a denial of justice, and is furthermore destructive of one of the basic principles in the administration of justice based as it is on the hierarchy of Courts. In such a case a writ of mandamus should issue ex debito justiciae to compel the Income Tax Officer to carry out the directions given to him by the Income Tax Appellate Tribunal. The High Court would be clearly in error if it refuses to issue a writ on the ground that no manifest injustice had resulted from the order of the Income Tax Officer in view of the error committed by the Tribunal itself in its order. Such a view is destructive of one of the basic principles of the administration of justice.” In the present case the District Teachers Appointment Tribunal, Katrihar being a statutory appellate authority had issued a direction to the members of the selection committee for preparation of fresh panel as per the direction in the order. The order passed by the Tribunal was never challenged by the respondents before any superior forum. In the facts and circumstances, the Selection Committee 8 constituted for appointment of Prakhand Teachers was under legal obligation to implement the direction of the Appellate Tribunal. The Selection Committee could not have afforded to refuse to give effect to the direction of the Appellate Tribunal, as it’s effect amounts to denial of justice. Counsel appearing for the petitioner submits that this is the case in which direction issued to the respondents by the Tribunal, has been completely and knowingly been denied, which has caused injustice to the petitioners. In order to remove this injustice, which has resulted on account of refusal of the respondents in implementing the direction of the Tribunal, a direction of this Court is legally necessity. I find much substance in the submission of the Counsel representing the petitioner. A statutory Tribunal constituted under Section 18 of the Rules is vested with the power and jurisdiction, to decide the issues relating to appointment, termination, seniority, promotion of the Teachers appointed under 2006 and amended 2008 Rules. Any direction issued by the Tribunal in exercise of its statutory jurisdiction, is liable to be implemented by the respondents unless it is modified or set aside by the Higher Court. Since the 9 order and direction of the Appellate Tribunal is still intact, the respondents are bound to comply the direction issued by the District Appellate Tribunal. Another issue which requires consideration relates to the effect of the amended Rule 9 (X), in relation to Rule 9(IV) of the Appointment Rules. Rule 9(IV) was earlier there in 2006 Rules which relates to the procedure to be adopted in selection and preparation of merit panel. This provision has remained intact in 2008 Rules but a new provision has been introduced in Amended Rule 2008 i.e. Rule 9(X). Both the clauses are applicable in the matters of selection, appointment and posting of Prakhand Teachers, as such, their effect has to be construed harmoniously so as to fulfill the object behind framing of the Rule. The object of the Bihar Panchayat Primary Teachers (Appointment and Service Condition) Rules 2006 and Amended Rule 2008 relates to provide procedure in the matters of appointment, promotion and service conditions of Teachers to be appointed at Panchayat and Prakhand level. Rule 9(IV) provides that percentage of marks obtained by a candidate in his/her Matric, Higher Secondary, Intermediate level and two years training course will be added and 10 divided by two. Percentage of marks divided through this procedure will be utilized for preparation of merit panel and for selection. In the same term Rule 9 (X) specifically provides that while posting such appointed teachers priority should be given to Graduate Teachers in comparison to the Intermediate qualified Teachers. Counsel for the petitioner submits that the main object behind the Appointment of Teacher at Panchayat/Prakhand level is to impart proper education to students at Primary, Middle Schools at Panchayat and Prakhand level. Undisputedly a person with higher qualification will be more knowledgeable and thus able to impart better education to the students at the lowest level, which can be considered as foundational education of such students. A person with higher qualification cannot be denied appointment simply because in the Intermediate level he had got lesser percentage of marks. The weightage is required to be given to persons with higher qualification and this is the reason under Rule 9(X) it has been specified that in the matters of posting of Teachers in the Middle School priority should be given to the Graduate Teachers. These two provisions had 11 to be read together in order to reach to a better and harmonious conclusion. Counsel for the petitioners submits that if these two clauses will be read independently and given this interpretation that these two clauses relates to two different fields, this will create an anomalous situation, not practically acceptable. In the given circumstance in order to resolve such problem the object and purpose of two provisions should be interpreted harmoniously. Instead of interpreting these two provisions as conflicting clauses, it should be interpreted as clauses supplementing/supporting each other. In order to interpret these two clauses, the object behind framing of these rules, has to be looked into. Main object of appointing Teachers at Primary/Prakhand Level is to educate children at the foundational level of educational frame work, in the best possible manner. A teacher who possesses Intermediate qualification, will be less-equipped knowledge wise than the teacher who possesses a graduate qualification. A teacher who is trained Graduate will be much more qualified and able to give better education to such children. In the circumstance simply because Rule 9(IV) mentions about Matric, 12 Higher Secondary and Intermediate percentage of marks, it cannot be construed that the candidate with a Graduate qualification, will not be considered eligible if he has less percentage of marks in Intermediate, than the candidates who have been selected. The Tribunal has rightly interpreted that merit list should be prepared giving priority to Graduate trained than the Graduate, thereafter Intermediate Trained and lastly the candidate only with Intermediate degree. The petitioners and others who are Graduates in Science and Arts should have also been considered for selection giving weightage, to their Graduate marks, so that the students at Primary level may get better qualified teachers and not only teachers with minimum requisite qualification. Rule 9(IV) only indicates minimum qualification and it does not restrain a person with higher qualification from being considered for selection if they have got lesser marks in the Intermediate. In the facts and circumstances the respondent Selection Committee and its members are directed to implement the direction issued by the Appellate Tribunal, prepare a fresh selection list as per the direction of the Appellate Tribunal as indicated in the 13 order. A. Kumar ( Mridula Mishra, J.)