Mithilesh Yadav vs State of Bihar

Kishore Kumar Mandal, J.—On the basis of a select list (Annexure-3) published on 30.01.2003, the petitioner claims to have been appointed as Panchayat Shiksha Mitra (for short "PSM?) in the Gram Panchayat, Chanpi, Sherghati vide engagement letter dated 01.04.2003 (Annexure-4). He gave his joining in the concerned school which was accepted. Subsequently, he was sent for training under the orders of the Block Education Extension Officer, Sherghati, Gaya which was successfully completed by him. It is further claimed that he was considered and recommended for extension/renewal of his engagement as PSM for another term of 11 months. The Mukhiya of the concerned Gram Panchayat under letter dated 29.03.2004 extended/renewed the engagement of the petitioner as PSM for another 11 months. It is stated that although he completed 11 months as PSM but was not paid his honorarium. On 25.06.2005, the Vidyalaya Shiksha Samiti again recommended his name for grant of extension for a period of 11 months. Subsequently, the same was allowed vide letter No. 07 dated 01.07.2005 (Annexure-9). Although the petitioner was a candidate in BC category but he was wrongly treated by the Appointment Committee under EBC category. However, he was allowed to continue inasmuch as his engagement was also renewed. A grievance was raised by him about non-payment of the honorarium whereafter the Block Development Officer instructed the Block Education Extension Officer, Sherghati to take necessary steps in this regard. In the meanwhile, Bihar Panchayat Elementary Teacher (Employment and Service Conditions) Rules 2006 (for short "the Rules?) came into effect and by virtue of Rule 20(iii) thereof, he claims to have been absorbed as the Panchayat Teacher. Since payment of his honorarium for the period(s) he worked as PSM was not made, the petitioner approached this Court vide C.W.J.C. No. 12328 of 2006 which was disposed of by order dated 20.08.2007 (Annexure-10) permitting him to approach the Collector of the district within one month for ventilation of grievance and the Collector of the district was directed to examine the same. Within the time granted by this Court, the petitioner could not file his representation and as such, he filed an application vide M.J.C. No. 2632 of 2007 for modification of the order which was rejected whereafter he filed an appeal which was disposed of giving him liberty to file representation within two weeks vide order dated 28.01.2008 (Annexure-11). The petitioner submitted a representation before the District Magistrate whereafter he was directed to appear in the said case bearing No. 08 of 2008 and file his show cause which was filed on 28.03.2008. A show cause on behalf of the Mukhiya of the Gram Panchayat was also filed. The matter thereafter remained hanging. The petitioner, in such circumstances, again filed a writ petition vide C.W.J.C. No. 4435 of 2009 which was disposed of on 28.07.2011 (Annexure-13). In the light of the counter affidavit filed on behalf of the respondents, this Court observed as under in the said order:

"There are several documents, which need consideration to examine the claim of the petitioner, as well as denial by the State. In order to examine the genuineness of documents a detailed enquiry is required; and it cannot be done by the Writ Court. The Writ Court cannot decide issues, which are completely based on facts. It is desirable that the petitioner should file an appeal before the District Teachers Employment Appellate Tribunal. The Tribunal will call for the connected records, such as proceeding books of the Gram Panchayat, attendance register and other connected documents. The Appellate Tribunal will also issue notice to concerned Mukhiya, Panchayat Secretary as well as Headmaster of the School and after giving opportunity of hearing to them, will examine the genuineness of documents annexed by the petitioner as well as respondents, in order to pass an order, in accordance with law.

Accordingly, this application is being disposed of, giving liberty to the petitioner for filing an appeal before the Tribunal within four weeks from today. In case such an appeal is filed by the petitioner, the Appellate Tribunal will decide the appeal as observed in this order, giving proper opportunity to the petitioner and looking into the connected records, within three months from the date of filing of the appeal."

In the light of the said liberty, the petitioner filed an appeal before the District Teachers Employment Appellate Authority, Gaya (for short "the Authority?) which gave rise to Case No. 69 of 2011. The Authority considered the submission of the parties and perused the materials on record including the order passed by the District Magistrate (Annexure-2) and found that the name of the petitioner did not figure in the renewal order which was passed on 01.07.2005. It further appears therefrom that the Block Development Officer took a stand before the District Magistrate that the engagement period of the petitioner as PSM was not extended and as such, he was not allowed to continue as PSM w.e.f. 01.03.2004. In the light of the aforesaid facts as also considering the detailed order passed by the District Magistrate (Annexure-2), the Authority refused to grant any relief to the petitioner for payment of honorarium holding further that no such re-engagement as PSM can be ordered in the light of the rule/provision. Accordingly, the appeal was dismissed. Aggrieved thereby, the present writ application.

Heard Mr. Rajeev Kumar Singh and A.C. to G.P. 28 for the State is present. A counter affidavit has been filed on behalf of respondent Nos. 5 to 8. No rejoinder thereto has been filed by the petitioner.

The Counsel for the petitioner submitted that as per the order passed by the Authority, the petitioner was found to have been engaged initially as PSM in breach of the roaster. His initial selection as PSM was not renewed/extended. Relying on 2011 (4) PLJR 846, it is contended that engagement/appointment in breach of roaster would not make his selection as PSM illegally. The finding with regard to non-renewal of his appointment as PSM could not have been entertained in view of law laid down in the case of Kalpana Rani and Prashant Kumar Vs. The State of Bihar and Others, as the petitioner continued on the post of PSM until promulgation of Bihar Panchayat Elementary Teacher (Employment and Service Conditions) Rules 2006 (for short "the Rules") w.e.f. 1.7.2006. A PSM, who was working on the said post on 1.7.2006 by fiction of law as contemplated under Rule 20(iii) of the Rules automatically became Panchayat Teachers (PTs) and the posts of PSM stood abolished.

The Counsel for the State conversely supported the impugned order. He also relied on the case of Kalpana Rani (supra) in order to submit that no such grievance even if legitimate to treat him as PSM whose service was renewed and continued till 1.7.2006 could not have been entertained by the Authority. He further urged relying on the findings recorded by the District Magistrate (Annexure-2) as also the statements made in paragraph 17 of the counter affidavit that actually no extension to the service of the petitioner as PSM was granted. In letter bearing Memo No. 07 dated 1.7.2005 (Annexure-9), the petitioner forged his name as one of the PSMs whose extension/renewal was granted. A person who has committed fraud cannot invoke the equitable jurisdiction of this Court. The District Magistrate was directed by this Court to examine the grievance of the petitioner. In the light of the said direction, the District Magistrate considered the representation of the petitioner and rejected the contention of the petitioner that his service as PSM was renewed/extended vide letter bearing Memo No. 07 dated 1.7.2005. True it is that on account of violation of roaster, the engagement of the petitioner as PSM may not be questioned by now as the same was an act on the part of the Selection Committee. It is, however, seen that considering the fundamental defect in his engagement, the same was not renewed on 1.7.2005. It was the criminal act on the part of the petitioner in committing forgery in the said letter dated 1.7.2005 which has been so found under the order(s) passed by the District Magistrate (Annexure-2) as well as the Authority(Annexure-1).

From the statements made in the writ petition, particularly, those made in paragraph 28 it is but evident that the petitioner was not paid honorarium of the post of PSM right from his date of engagement/selection as PSM vide Annexure-3. Soon after his engagement, illegality in the selection of the petitioner was detected and a direction was issued in the year 2003 which, in effect, resulted in stoppage/non-payment of honorarium. His engagement as PSM was held illegal by the Block Development Officer, Sherghati in December, 2003 wherein it was found that only 4 PSMs (not the petitioner) were selected and engaged. The claim of the petitioner is founded on Annexure-9 which is a letter granting extension/renewal of the posts to the incumbents of the posts of PSMs in the Panchayat. The Authority as also the District Magistrate found that there was clear interpolation in the said letter inserting the name of the petitioner at the bottom. The District Magistrate, on going through the records, found as under in Clause (9) of his order (Annexure-2):

Rule 20(III) of the Rules envisages that any PSM who was continuing as such on the date of coming into force of the Rules i.e. 1.7.2006 shall be deemed to have been absorbed as Panchayat Teacher. It is, therefore, incumbent on the petitioner to demonstrate by convincing document that he was continuing as such on 1.7.2006. Such claim is made by him on the strength of Annexure-9 which has been found to be a forged document. In other words, the petitioner was not renewed under the said order but he got his name forged in order to lay false claim about his continuance until promulgation of the Rules. From his own showing he was never paid honorarium. Had he been legally appointed and renewed, there was no question of non-payment of honorarium. From the order passed by the District Magistrate under the direction of this Court, it is evident that his selection as PSM was already held illegal by the Block Development Officer in the year 2003 which remained unchallenged. In such circumstances, the petitioner was not paid his honorarium. In order to reap the benefit of deemed absorption, the petitioner is required to prove that he continued as such as PSM on 1.7.2006. Once the petitioner is able to demonstrate the same, he could be considered as deemed Panchayat Teacher. In that case, if a dispute is raised, the same can always be examined by the Authority. Illegality in such retention would, however, could not be a matter to be investigated by the Authority under the Rules. In the impugned order, it has been clearly found that the petitioner was not continuing on the post of PSM on the day when the Rules came into effect. His non-engagement or non-extension as PSM after coming into force of the Rules cannot be examined by the Authority which has rightly been refused under the impugned order.

For the reasons noted above, this Court does not find any merit in the writ petition. The application is dismissed.

No cost(s).