IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5979 of 2008 *** In the matter of an application under Article 226 of the Constitution of India. *** Shobha Kumari, wife of Sunil Kumar, Resident of Village and Post Office Amiyawar, Police Station Nasriganj, District Rohtas………………………………………Petitioner Versus 1. The State Of Bihar, through the Secretary, Human Resources Development Department, Bihar, Patna. 2. The District Magistrate, Rohtas at Sasaram. 3. The District Education Officer, Rohtas at Sasaram. 4. The District Superintendent of Education, Rohtas at Sasaram. 5. The Block Development Officer, Nasriganj, District Rohtas. 6. The Area Officer, Education Nasriganj, Rohtas. 7. The Block Education Extension Officer, Nasriganj, Rohtas. 8. Krishna Prasad son of Late Ramjee Saw, the then Mukhia of Panchayat Amiyawar, resident of Village and P.O. Amiyawar, Police Station Nasriganj, District Rohtas. 9. Ramjee Prasad Singh, son of Late Chhedi Singh, Mukhia of Panchayat Amiyawar, resident of Village and P.O. Amiyawar, Police Station Nasriganj, District Rohtas. 10. The Panchayat Secretary, Amiyawar Panchayat, Nasriganj Block, Police Station Nasriganj, District Rohtas. 11. Kumari Sumitra, wife of Neeraj Prasad, resident of Village and P.O. Amiyawar, Police Station Nasriganj, District Rohtas. (At present posted as Panchayat Teacher in Madhya Vidyalaya Amiyawar, Nasriganj, District Rohtas)………………………..…………………………………………………….Respondents *** For Petitioner: Mr. Kamal Nayan Choubey, Sr. Advocate with M/s Umesh Narayan Dubey & Ranjeet Choubey, Advocates For Respondent: Mr. Yogesh Chandra Verma, No.11 Sr. Advocate with Mr. Rajni Kant Singh, Advocate For the State: Mr. Shailendra Jha, A.C. to S.C. No.14 *** P R E S E N T THE HON’BLE MR. JUSTICE JAYANANDAN SINGH O R D E R 2 J.N.Singh, J. Petitioner has filed this writ application for quashing the selection / appointment of respondent no.11 made on the post of Panchayat Shikshak in Amiyawar Panchayat within the district of Rohtas. She has further prayed for a direction to the respondents to select/appoint her on the post of Panchayat Shikshak on the basis of documents submitted by her, as she is more meritorious than respondent no.11. A further prayer has been made to direct the authorities to make enquiry regarding illegal selection / appointment on the post of Panchayat Shiksha Mitra in the Panchayat in question made by respondent nos. 8 and 10 and further direct to the authorities concerned to do the needful, as prescribed by law. 2. Short facts, as per her case is that, in the said Panchayat there were eight vacancies for Shiksha Mitra, out of them four were for male candidates and four were for female candidates. Out of the eight, four were to be filled up by general category candidates and rest four were to be filled up by reserved category candidates. Accordingly, an advertisement was published and petitioner applied for selection and appointment. Selection Committee held meeting and considered the applications and a merit/gradation list was published on 17.05.2005. Petitioner was fourth in the merit list of female candidates. The candidate at the first position was overage and the second and third were general category candidates. Hence, petitioner was the first 3 female candidate under reserved category. She had secured 15 points with higher percentage of 69.78% marks in Intermediate. However, respondent 11, with only 62.78% marks in Intermediate, was selected and appointed under the backward category. Petitioner came to know about this appointment of respondent no.11 in the month of November, 2005. Accordingly, she submitted an application to the Block Development Officer, Nasriganj on 18.08.2006 (Annexure-3) raising an objection. A copy of the said application was also sent to the District Magistrate, Rohtas by registered post on 24.08.2006 (Annexure-4). Since she did not come to know about any action taken on her application, she submitted another application to the District Magistrate on 19.09.2007 (Annexure-5). She also filed an application under Right to Information Act before respondent no.7 with required fee seeking information as to on what basis she had not been selected. In response, she was supplied with only the proceeding of the Selection Committee, the marks sheet and the admit card of respondent no.11 of Intermediate Examination (Annexure-6 series). But till now no decision has been taken by the respondents on her applications / objections. 3. The submission of the learned senior counsel for the petitioner was that the petitioner, having higher percentage of marks in the Intermediate vis-à-vis respondent no.11, had a right to be selected and appointed in place of respondent no.11 as a backward 4 category female candidate. Hence she is entitled for the reliefs prayed for in this writ application. He cited the following judgments for consideration by this Court :- (1) AIR 1971 Supreme Court 33 (L. Hirday Narain Vs. Income Tax Officer, Bareilly) (2) 1991 (2) PLJR 513 (Prem Nath Singh Vs. The State of Bihar ) (3) 1989 PLJR 493 (Purnea Zila Mazdoor Union through its Secretary Vs. The State of Bihar) (4) 1976 BBCJ 1 ( Lowa Tanti @ Loba Tanti Vs. The State of Bihar) 4. A counter affidavit has been filed on behalf of respondent nos. 1 to 7, sworn by respondent no.7. It is stated that on the application of the petitioner, enquires were made and records with regard to entire selection were called for from the concerned Panchayat, but the same has not been received as yet. Hence no action could be taken in the matter so far. 5. Respondent no.11 has also appeared and filed her counter affidavit. Her stand is that she had also secured 15 points, as all candidates having 60% to 75% marks in Intermediate had to be allotted 15 points uniformly. But she was older in age to the petitioner. Hence, in terms of the Rule 9 (vi) of Bihar Panchayat Prarambhik Shikshak (Niyojan Avam Seva Sart) Niyamvali, 2006 (as amended by Amendment Act, 2008), an elder candidate had to be preferred to the younger one for appointment. It is stated that, in view of Resolution Nos. 1548 dated 11.08.2004 and 1748 dated 02.09.2005, an objection, by 5 any aggrieved party, had to be filed before the District Magistrate within 30 days, who was authorized to enquire and cancel the appoint, if found irregularly made. Respondent completed her first term of 11 months and her term was renewed thereafter, but petitioner did not file her objection within the prescribed time. She only filed her objection, Annexure-3, after the 2006 Rules came into force and when she came to know that the contractual appointments of Shiksha Mitras have been converted into a regular appointment with tenure of service and with higher remuneration and a new designation of ‘Panchayt Shikshak’. 6. Learned senior counsel appearing on behalf of respondent no.11 submitted that the application/objection of petitioner being time barred, could not be considered by the respondents. He cited the following two judgments for consideration by this Court:- (1) 2008 (2) PLJR 503 (Kanhaiya Kumar Mishra Vs. The State of Bihar) (2) 2009 (2) PLJR 929 (Alok Kumar Vs. State of Bihar) 7. Having considered the facts and circumstances of the case and the stand of the parties, this Court is of the opinion that it is not required to decide the matter on merits. This Court has failed to appreciate as to in what manner the judgments relied upon by learned senior counsel for the petitioner, as listed above, is relevant for the case of petitioner. The first case cited by him is of Income Tax Act; the second is of Medicinal and 6 Toilet Preparations (Excise Duties) Act; the third one is of Minimum Wages Act and the fourth one is Essential Commodities Act. On the other hand, the judgments relied upon by the learned senior counsel for respondent no.11 clearly establish that no application/objection, not filed within 30 days and filed for the first time after 2006 Rules came into force, for enquiry into the appointments of Shiksha Mitras made prior to it, or for consideration of a claim for appointment on the basis of an application submitted earlier for appointment as Shiksha Mitra, is maintainable after the Rules have come into force. 8. The writ application is dismissed. Patna High Court, Patna The 27th September, 2011 N.A.F.R. (B.T.) (Jayanandan Singh, J.)