Arun Kumar Kumar vs State Of Bihar

Petitioners have prayed for the following relief(s):-

"a. For issuance of an appropriate Writ in the nature of certiorari for quashing Sub Rule kha of Rule 5 (i) of Bihar Rajya Shikshan Sansthan Shikshak Evam Karmchari (Shikayat Nivaran Evam Appeal) Rules 2020 as contained in Notification bearing Memo No. 715 dated 25.08.2020 issued under the signature of the Additional Chief Secretary, Education Department, Govt. of Bihar as the aforesaid provision prescribing the eligibility criteria for appointment of Presiding Officer of District Appellate Authority is wholly unreasonable, arbitrary and malafide.

b. For issuance of an appropriate Writ in the nature of certiorari for quashing the Press Communiqué as issued under the signature of the Director (Primary Education) of the Education Department, Government of Bihar dated 05thof February 2021 by which Applications have been invited in the prescribed Format for appointment of Presiding Officers of the District Appellate Authority in altogether 38 districts of the State of Bihar on the basis of the eligibility as prescribed in Sub Rule kha of Rule 5 (i) of Bihar Rajya Shikshan Sansthan Shikshak Evam Karmchari (Shikayat Nivaran Evam Appeal) Rules 2020 as contained in Notification bearing Memo No. 715 dated 25.08.2020 as well as on the basis of several anomalies.

c. For issuance of an appropriate Writ holding and declaring the aforesaid Press Communiqué dated 05th of February 2021 to be in teeth of the provisions of Bihar Rajya Shikshan Sansthan Shikshak Evam Karmchari (Shikayat Nivaran Evam Appeal) Rules 2020 as contained in Notification bearing Memo No. 715 dated 25.08.2020 and furthermore the impugned Press Communiqué is also in teeth of Article 14 and 16 of the Constitution of India.

d. For issuance of an appropriate Writ in the nature of Mandamus commanding the Respondents to treat the Petitioners as having been appointed/continuing on the post of Presiding officers of District Teacher Appellate Authority in terms of the saving clause 25 (iii) of the Bihar Rajya Shikshan Sansthan Shikshak Evam Karmchari (Shikayat Nivaran Evam Appeal) Rules 2020 and to always consider the eligibility of the Petitioners for appointment to the post of Presiding officers till they attain the age of 70 years.

e. For issuance of any other relief/s for which the Petitioner is entitled in the eye of law and in the facts and circumstances of the case."

Petitioners lay challenge to the provisions of the Bihar State Teaching Institutions Teachers and Employees (Disputes Redressal and Appeal) Rules, 2020. The relevant clause, in toto, is reproduced as under:-

"Qualification for nomination/appointment as Presiding Officer/Chairman:-

(i) A person shall not be qualified for nomination/appointment to the post of Presiding Officer of the District Appellate Authority unless:-

a. He has held the post of District Judge or Additional District Judge, or

b. He has remained in the pay scale of level-13 of Bihar Education Service or Bihar Administrative Service."

Sub-clause (b) is under challenge.

Prior thereto, the State had enacted "बिहार राज्य विद्यालय शिक्षक एवं कर्मचारी शिकायत निवारण नियमावली 2013" [Bihar State School Teacher and Employee Grievance Redressal Rules, 2013] containing clause 5(kha), which is reproduced herein under:-

"5([k) बिहार प्रशासनिक सवा अथवा बिहार शिक्षा सवा के अधीन वर्ग-1 के पद पर कम-स-कम दो वर्ष न रहा हो]"

Translated version

[Has not worked for at least two years on a Group-1 post under the Bihar Administrative Service or Bihar Education Service.]

The said rules were subsequently amended vide notification dated 13th of May, 2015 with yet another enactment, namely, "बिहार राज्य विद्यालय शिक्षक एवं कर्मचारी-शिकायत निवारण नियमावली] 2015" [Bihar State School Teacher and Employee Grievance Redressal Rules, 2015] wherein the eligibility criteria for selection for appointment as Presiding Officer/Chairman to the District Appellate Authority was prescribed as under:-

"5([k) बिहार प्रशासनिक सवा अथवा बिहार शिक्षा सवा के अधीन समूह-ष्कष् के पद पर कम-स-कम दो वर्ष रहा हो"

Translated version

[5(b) Has worked for at least two years on a Group 'A' post under the Bihar Administrative Service or Bihar Education Service.]

The amendment which reads as "He has remained in the pay scale of level-13 of Bihar Education Service or Bihar Administrative Service." is challenged, inter alia, on the following grounds:-

(a) That it reduces the chances of promotion, selection and appointment of the petitioners;

(b) The Rules are violative of Article 14 of the Constitution of India, and stand enacted only to oust the petitioners.

(c) The Rules were brought in with a malafide intention.

Having heard learned counsel for the parties, we are of the considered view that on all counts, the petition needs to be rejected.

Before us, there is no challenge with regard to the legislative competence of the State to enact and notify the rules.

There is always a presumption of constitutionality of legislation/rules, and the onus to establish the rules being violative of Constitution; parent Statute is always upon the petitioners.

It is a well settled proposition of law that the Courts should refrain from interfering with the legislation, unless of course, the petitioners make out a case for interference, highlighting the arbitrariness, manifest at that or repugnance to the Constitution/Statute.

The classification, in our considered view, has a reasonable nexus with the object sought to be achieved. The new enactment enables all officers having a pay-scale of Level-13 of either the Bihar Education Service or the Bihar Administrative Service to man the adjudicatory Tribunal, which in the instant case, is a Tribunal for adjudicating the disputes in relation to the teachers employed by the State Government in several institutions. The criteria for fixing the pay-scale, higher one at that, is based on the object of enabling senior level officers to man the Tribunals. The classification is also based on the person having sufficient and reasonable experience, for the persons entitled for the requisite pay-scale of Level-13 would have rendered sufficient service in their respective streams. This classification, as we find, is reasonable, totally permissible in law and by no means arbitrary.

There cannot be any malice in bringing the legislation. Submission that the rules stand enacted only to oust the petitioners is not only unsubstantiated on facts, for absence of any statutory right of promotion, but also legally unsustainable, for it is the prerogative of the State/legislature to bring in an enactment laying down conditions best suited for manning the Tribunals.

In P.S.N. Rao v. State of Orissa and others, (2002) 6 SCC 478, (para-8), the Hon'ble Apex Court held that it cannot be disputed that the State Government had the power to prescribe proper qualification for the post keeping in the job requirement, nature of work to be handled by the holder of the post and other relevant factors.

Simply because the petitioners stand ousted, from the zone of consideration that cannot be a reason to challenge the statute, more so, in view of lack of existence of any right for promotion to the post in question.

In High Court of Gujarat and another v. Gujarat Kishan Mazdoor Panchayat and others, (2003) 4 SCC 712, the Hon'ble Apex Court held that if the legislature intended to lay down different qualifications or eligibility criteria for President and Members, it would have expressly stated so.

In the instant case, the intention of the Legislature is clear and, therefore, such rules as laid down must be followed.

We notice that the rules contain Clause 25 (iv), which reads as under:-

"25(iv) The Presiding Officer/Chairman appointed prior to repealing of these Rules shall be deemed to have been appointed under these Rules, as if these Rules were prevalent at that point of time. Besides, the work done or any action taken in exercise of powers conferred by the said Rules shall be deemed to be done or action taken in these Rules, as if these Rules were prevalent at that point of time."

Hence, such of those persons who stood appointed and continue to officiate, their service tenure is adequately protected under the Rules.

It is brought to our notice that the advertisement issued pursuant to the impugned enactment is subject matter of challenge in C.W.J.C. No. 22446 of 2019, titled as Chandrama Singh & Ors. Vs. The State of Bihar & Ors. Well, we are not expressing any opinion on the issues raised therein, for the matter before us is limited only to the constitutional validity of the enactment.

For all the aforesaid reasons, we dismiss the present petition.

Interlocutory Application(s), if any, stands disposed of.