IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16423 of 2008 ALOK KUMAR, S/o Late Shiv Shankar Prasad Singh, resident of village- Khodadpur, Police Station- Madhuban………….Petitioner Versus 1. THE STATE OF BIHAR 2. The Block Development Officer , Madhuban, East Champaran 3. Mukhiya, Gram Panchayat Raj Garahia, Block- Madhuban, Police Station- Madhuban, District- East Champaran 4. Panchayat Secretary , Gram Panchayat Raj, Block- Madhuban, Police Station- Madhuban, District- East Champaran 5. Umesh Chandra Shiv, son of Ramdeo Rai, resident of village-Hari Narayanpur, Police Station- Madhuban, District- East Champaran …………………………………..Respondents -With- CWJC No.18513 of 2008 SURESH KUMAR, S/o Late Lalji Sah, resident of village- Dhruv Pakri, Police Station- Kalyanpur, District- East Champaran …….Petitioner. Versus 1. THE STATE OF BIHAR 2. The Block Development Officer , Kalyanpur, East Champaran 3. The Block Education Extension Officer , Kalyanpur, East Champaran 4. Mukhiya, Gram Panchayat Pipra Khem, Block –Kalyanpur, Police Station-Kalyanpur, District-East Champaran 5. Panchayat Secretary, Gram Panchayat Pipra Khem, Block- Kalyanpur, Police Station- Kalyanpur, District- East Champaran 6. Rima Kumari, wife of Arvind Kumar Singh, resident of village- Pipra Khem, Police Station- Kalyanpur, District- East Champaran ………………………….Respondents -With- CWJC No.18743 of 2008 KUMARI NUTAN, Wife of Sudhir Kumar Singh, resident of village- Pipra Khem, Police Station- Kalyanpur, District- East Champaran ……………………Petitioner Versus 1. THE STATE OF BIHAR 2. The Block Development Officer , Kalyanpur, East Champaran 3. The Block Education Extension Officer, Kalyanpur, East Champaran 4. Mukhiya, Gram Panchayat Pipra Khem, Block-Kalyanpur, Police Station- Kalyanpur, District- East Champaran 5. Panchayat Secretary, Gram Panchayat Pipra Khem, Block- Kalyanpur, Police Station- Kalyanpur, District- East Champaran 6. Nitaa Kumari, wife of Birendre Singh, resident of village- Pipra Khem, Police Station- Kalyanpur, District- East Champaran ……………………..Respondents. -With- CWJC No.1063 of 2009 2 UMESH CHANDRA SHIVA, Son of Shree Ramdev Rai, resident of village-Harinarayanpur, Garahia-Panchayat Raj, P. O. Mehasi, P.S. Madhuban, Block –Madhuban, District-East Champaran …………………………….Petitioner 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, District- East Champaran 5. The Mukhiya, Garahia Gram Panchayat, Block-Madhuban, District-East Champaran 6. The Panchayat Secretary, Garahia Panchayat, Block-Madhuban, District- East Champaran 7. The District Appellate Authority, Motihari, East Champaran 8. Alok Kumar, S/o Shiv Shankar Singh, R/o Village-Khodadpur, Garahia Panchayat Raj, Block-Madhuban, District-East Champaran ……………Respondents. For the petitioners: Mr. Sudhir Singh, Advocate Mr. Raghwanand , Advocate Mr. Ranjeet Kumar, For the state: G.A. 10 G.A. 4 G.A. 6 ----------- 8. 17.03.2009 In all four cases, issues are common, as such, they have been taken up together for consideration and disposal. 2. The common issue to be decided is whether the Block Development Officer purporting to act under rule 18 of the Bihar Panchayat Elementary Teachers (Appointment, service condition) Rule, 2006 can annul the appointment of Shikcha Mitra made in 2003, 2004, 2005 and thereby allow a person to be absorbed as Panchayat Teacher under rule 20 (ii) and (iii) of 2006 rules, though he was not working on the post of Shikcha 3 Mitra on 01.07.2006. 3. Petitioners in C.W.J.C. Nos. 16423/08, 18513/08 & 18743/08 were appointed as Panchayat Shikcha Mitra in the year, 2005. Their services were absorbed as Panchayat teachers in terms of the rule 20(ii) & (iii) of 2006 rules, and as such, they acquired the status of Panchayat Shikchak. The Block Development Officer of concerned blocks have now passed orders in exercise of jurisdiction u/S 18 of 2006 rules, cancelling their appointment as Panchayat Shikcha MItra and directed to appoint private respondents as Panchayat Shikcha Mitra in place of petitioners, with all consequential benefits. Prayer of the petitioners is for quashing the impugned orders whereby their appointment as Panchayat Shikcha Mitra/Panchayat teachers have been cancelled. 4. Petitioner in C.W.J.C. No. 1063/09 is respondent No. 5 in C.W.J.C. No. 16423/08 (Alok Kumar Vs State of Bihar & Others) . His prayer is to quash appointment of Alok Kumar (respondent No.8) as Panchayat Shikcha Mitra in Garhia Panchayat in the year, 2005 and to appoint him on the post of Shikcha Mitra under reserved category (male) and also to give him all other consequential benefits for which he is entitled under rule 20 (ii)(iii) of 2006 rules. 5. The Government of Bihar in order to streamline the system of education and to improve standard of education 4 took decision to appoint Shikcha Mitras in the primary/elementary schools. In the light of this policy decision, the department of Human Resources issued guidelines vide Resolution No. 1458 dated 11.8.2004 wherein procedure for selection of Panchayat Shikcha Mitra was prescribed. Subsequently, the resolution dated 11.8.2004 was supplemented by resolution No. 1748 dated 02.09.2005 and Educational qualification for appointment as Shikcha Mitra was enhanced from matriculation to intermediate. The District Magistrate was authorized to enquire into the alleged illegality and irregularity in appointments of Panchayat Shikcha Mitras, and pass necessary orders. 6. In the year, 2006, the Bihar Panchayat Elementary Teachers (Appointment and Service Condition) Rules, 2006 was issued providing detail procedure for selection/appointment and service condition of Prakhand teachers/ Panchayat teachers. Rule 9 (kh)(viii) prescribes that when selection panel is prepared, it will be made public. One week’s time will be available for filing any objection regarding this selection panel. In case any objection filed then the selection list will be finalized only after resolving such objections. Rule 18 provided a forum for redressal of grievances. Under rule 18, the Block Development Officer, was authorized to dispose of any complaints relating to appointment, transfers and service conditions of Panchayat teachers 5 appointed under 2006 rule. Rule 20 is the repealing and saving clause. It provided that all circulars, orders, administrative instructions/policy decisions earlier issued on this subject shall be deemed to have been superseded subject to exceptions mentioned in sub-clauses (ii) & (iii). Sub-clause (ii) provided that irrespective of supersession of earlier circular/administrative instruction/services of teachers appointed in terms of earlier circulars and administrative instructions shall remain unaffected. Sub-Clause (iii) provided that Panchayat Shikcha Mitra earlier appointed shall be deemed to have been appointed as Panchayat Teacher under 2006 Rules. 7. Question which has been raised by the petitioners is that whether after lapse of contractual period of their appointment, as Panchayat Shikcha Mitra in the year, 2005 and the scheme under which they were appointed as Panchayat Shikcha Mitra already been superceded by virtue of rule 2006 and their services being absorbed as Panchayat teacher under rule 20(ii) & (iii) of 2006 Rules, their appointment as Panchayat Shiksha Mitra earlier made in 2003, 2004, and 2005 can be cancelled, on submission of any complaint or objection by anyone in the year, 2007 and 2008, relating to their appointment as Panchayat Siksha Mitras. 8. Petitioners were appointed as Shikcha Mitras under the provisions of Resolution No. 1548 dated 6 11.8.2004. There was a provision that any objection regarding selection/appointment should be made within 30 days of such selection/appointment. Under clause 14 of resolution No. 1748 dated 02.09.2005, the District Magistrate of the district was authorized to conduct inquiry regarding illegality in appointment of Panchayat teachers on contract basis. The District Magistrate finding any irregularities was authorized to cancel such appointment. Petitioners were appointed in the year, 2004/2005. No objections/complaints were made by anyone with respect to their appointments within the time prescribed, i.e. 30 days before the District Magistrate. Petitioners completed 11 months contractual period of service and finding their service satisfactory, it was further extended. While they were continuing on the post, 2006 rules came into force. Their services were absorbed under rule 20 of 2006 rules by virtue of their continuation in service as Shiksha Mitras. Subsequent to that if any objection is filed, it could not have been entertained as the terms and conditions applicable in case of the petitioner’s appointment as Panchayat Shikcha Mitra which is now superseded by 2006 rules . As provided under rule 20 of 2006 rules, any orders/administrative instructions and policies issued on the subject earlier have been superseded and became 7 non existent. Petitioners’ case comes within Sub-clause (ii) & (iii) of Rule 20. They have now been absorbed as Panchayat Teachers, as such now no question can be raised regarding their appointment as Shiksha Mitra, made under the provisions, terms and conditions existing under the guidelines for the appointment of Shikcha Mitra. 9. No counter affidavit has been filed in C.W.J.C. No. 18513 of 2008 & 18743/08. However, counter affidavit has been filed in C.W.J.C. No. 16423/2008 was selected for appointment as Panchayat Shikcha Mitra. An agreement for 11 months was executed on 06.05.2006 and a letter of appointment for joining in the concerned school was issued from the office of Mukhiya on that very date. Selection process completed on the relevant date i.e. 06.05.2005. No objection was filed within 30 days of his appointment. For the first time, in the year 2008 , an objection was raised by Umesh Chandra Sheo before the Block Development Officer , Madhuban and vide letter No. 775 dated 30.7.2008. A notice was issued by the Block Development Officer to Umesh Chandra Sheo and others for participating in the inquiry on 05.08.2008. Admittedly, no objection was raised within 30 days of petitioner’s selection as Panchayat Shikcha Mitra. The 8 objection was raised after much delay in the year, 2008 when already Alok Kumar was absorbed as Panchayat teacher under the provisions of rule 20 of 2006 rules. Under 2006 rules also, there is a provision for filing objection against the appointment made under 2006 rules only, for which a time has been provided under rule 9 (KH) (viii) . It provides that draft panel of selected candidates will be made public. Any objection against the selection panel must be filed within seven days and such objection will be entertained by the Block Development Officer under rule 18. The Block Development Officer has been authorized to take any decision on such objections/complaints within 30 days of filing such complaints. Rule 18 of 2006 rule provides a forum for entertaining complaints against such appointments only which are made under 2006 rules. Petitioners were not appointed under 2006 rules rather they were appointed as Panchayat Shikcha Mitras and were absorbed as Panchayat teachers, by virtue of their continuation on the post as provided under rule 20 (ii) & (iii) which is a saving clause. Their services were saved and they were absorbed as Panchayat/Prakhand Teachers. The Block Development Officer, has no jurisdiction to reopen such matters by entertaining complaints under rule 18 of 2006 rules. Under the guidelines relating to Panchayat Shiksha 9 Mitras appointment, the District Magistrate was empowered to look into such matters. The Block Development Officer can exercise his jurisdiction under rule 18 only in case of appointments made under 2006 rules. Entertaining complaints, in exercise of jurisdiction under Rule 18, for reopening Panchayat Shikshak appointment is without jurisdiction. Impugned orders, terminating service of the are quashed being without jurisdiction. 10. Another question which needs consideration, relates to limitation. Petitioners were absorbed under rule 20 of 2006 on 01.07.2006 i.e. the date , the rule came into force. No objection was raised when petitioners were selected and appointed as Shikcha Mitras, within 30 days of their appointment. Objection or inquiry made subsequently in respect of petitioners’ appointment as Panchayat Shikcha Mitra should not have been entertained, being time barred. 11. There is no dispute that Panchayat Shiksha Mitras were appointed for a fixed period of 11 months in terms of agreement and on expiry of that period, fresh agreement is executed in favour of these Shikcha Mitras whose services were found satisfactory. Petitioners were given extension for the reason that their services were found satisfactory and there were no complaints. Since 10 their services were satisfactory and they continued on the post, they were absorbed as Panchayat Teacher, under the provisions of rule 20 (ii)(iii) of 2006 rules. 12. Another ground which has been raised in all these writ applications is that the impugned orders have been passed by the Block Development Officer without holding any inquiry in accordance with law and without giving opportunity to the petitioners. Petitioners were appointed as teachers and working on the post on the basis of their absorption under rule 20 (ii) & (iii) of 2006 rules. For passing any order against a person whose services has duly been absorbed against a sanctioned post, it was incumbent upon the respondents to issue notice to show cause, and to give opportunity to participate in the inquiry. Northing was done. Ex-parte enquiry was conducted, for passing impugned orders of termination. This in itself is sufficient for quashing the impugned order as any government servant cannot be terminated or dismissed in violation of rule of natural justice. 13. There is another reason for holding the impugned order of termination bad. The Block Development Officer, by the impugned order has not only terminated petitioners from their post of Panchayat/Prakhand Teachers, but have also directed to 11 appoint the complainants (Respondents) on the post of Shiksha Mitra with all consequential benefits. There is specific direction of Director, Primary Education in this regard that since after 01.07.2006, no post of Shiksha Mitras are existing, as such no one can be appointed on these posts. 14. The order dated 05.8.2008 (C.W.J.C. No. 16423/08) (Annexure-4) issued by Block Development Officer , Madhuban, order dated 01.04.2008 ( C.W.J.C. No. 18743/08 and C.W.J.C. No. 18513/08), issued by the Block Development Officer , Kalyanpur, East Champaran and the selection list dated 06.02.2007 as a consequence of impugned order dated 01.11.2008 are quashed. 15. All these writ applications are allowed. 16. For the reasons stated above, C.W.J.C. No. 1063/09 is dismissed. AKV/ ( Mridula Mishra, J )