Neha Raj vs State Of Bihar And Ors

Heard learned counsel for the appellant and the learned counsel for the respondent-petitioner as well as learned counsel for the State of Bihar.

The challenge raised is to the judgement of the learned Single Judge dated 29.11.2016 raising a two fold submission that the very initial appointment of

the Respondent No. 6-petitioner as a Panchayat Shikha Mitra was based on an incorrect information tendered by him with regard to his date of birth

as 07.10.1975. The contention of the learned counsel for the appellant is that undisputedly the correct date of birth of the respondent-petitioner is

07.10.1974 which is evident from a copy of his Certificate of High School. This date of birth was deliberately reflected by reducing it by one year in

the merit list which was prepared for selecting the respondent-petitioner at the time of his engagement as Panchayat Shiksha Mitra as 07.10.1975.

The error committed by the learned Single Judge is that the said date of birth as reflected in the merit list was assumed to be the correct date of birth

without adverting to the aforesaid fact of the real date of birth of the respondent- petitioner as recorded in his High School Certificate.

The second ground of challenge is that even on merits the respondent-petitioner was below the appellant in merit and that his appointment had been

made contrary to the roster applicable as a Shiksha Mitra. It was on the strength of such engagement that he was absorbed as Panchayat Shikshak.

Aggrieved, the appellant had approached the District Teachers Employment Appellate Authority where the appeal of the appellant was allowed

recording findings against the respondent- petitioner on all the aforesaid three issues.

The respondent-petitioner challenged the order of the District Teachers Employment Appellate Authority dated 1st of July, 2010 which has been set

aside by the learned Single Judge. Learned counsel submits that the impugned judgement proceeds on an erroneous assumption of fact and law both

and, therefore, it deserves to be set aside.

Resisting the arguments on behalf of the appellant, learned counsel for the respondent-petitioner has submitted that the appeal before the District

Appellate Authority was filed after five years of the absorption of the respondent-petitioner as a Panchayat Shikshak. Learned counsel submits that

the entire scheme relating to appointment or even continuance of Shiksha Mitra stood terminated with the scheme of absorption and, therefore, the

District Teachers Employment Appellate Authority had no jurisdiction to entertain any such complaint, that too even after five years of absorption as a

Panchayat Shikshak. In fact, the respondent-petitioner was questioning the very initial appointment of the answering respondent as a Shiksha Mitra

which was beyond the jurisdiction of the District Teachers Employment Appellate Authority not only on account of promulgation of the new scheme

of absorption, but also on account of heavy delay and laches of five years.

Learned counsel then submits that as on the date of absorption the answering respondent was fully eligible as per the terms of absorption under the

scheme dated 01.07.2006. Consequently, the answering respondent did not suffer from any ineligibility for being absorbed as a Panchayat Shikshak

and in the absence of any such infirmity in absorption, there was no grievance available or ground available to the appellant to question the same

before the District Teachers Employment Appellate Authority. In fact, the challenge raised was not to the absorption as Panchayat Shikshak but to

the appointment as a Shiksha Mitra which was not permissible to be raised in the circumstances indicated above.

Learned counsel has heavily relied on the Full Bench decision of this Court in the case of Kalpana Rani Vs. State of Bihar, reported in 2014 (2) PLJR

The contention is that in view of the ratio therein the very claim raised by the appellant was not entertainable either before the District Appellate

Teachers Employment Authority or before any other forum.

It appears that an interim order was passed in this appeal on 23.12.2016 staying the operation of the impugned judgement. Thereafter parties have

exchanged their affidavits and, consequently, the matter has been heard by us.

At the very outset, we may point out that the fact that the date of birth of the respondent-petitioner is 07.10.1974 remains undisputed. Thus, the

assumption, by the learned Single Judge of the date of birth of the respondent-petitioner as 07.10.1975 is incorrect. To that extent, the judgement of

the learned Single Judge, therefore, deserves to be rectified.

However, on the other issues raised pertaining to the right of the appellant, suffice it to mention that the Full Bench in the case of Kalpana Rani

(supra) considered the impact of the promulgation of the scheme of absorption and the then Hon’ble Chief Justice, while delivering her judgement,

in paragraph 26 observed as follows:

“26. In the matter before us also the appellant Kalpana Rani was never appointed as Panchayat Shiksha Mitra either in 2003 or at any time until

1st July, 2006. After 1st July, 2006, the appellant could not set up right to employment as Panchayat Shiksha Mitra or right to be absorbed as

Panchayat Teacher. The belated challenge to the appointment of the respondent nos. 9 and 10 and the claim for absorption as Panchayat Teacher

raised by the appellant after 1st July, 2006 was clearly an afterthough. Such a claim cannot be entertained. Irrespective of the validity of the

appointment of respondent nos. 9 and 10 as Panchayat Shiksha Mitra, the appellant has no right to be appointed as Panchayat Shiksha Mitra or

to be absorbed as Panchayat Teacher.â€​

The other learned Single Judge (Hon’ble Mr. Justice Mihir Kumar Jha) observed in paragraph 113 and 118 as follows:

“113. Thus, when the appellant on her own showing till coming of 2006 Rules came into force did not even question the appointment of the writ

petitioner on the post of Panchayat Shiksha Mitra, she had no right accrued under the repealed circular of Panchayat Shiksha Mitra much less right to

get herself appointed in place of the writ petitioner. It is well settled that the power to take advantage of an enactment may without impropriety be

termed a “rightâ€, but the question is whether it is a “right accruedâ€. Lord Herschell said in Abbott Vs. Minister of Lands reported in 1895

A.C. 425 had said that mere right (assuming it to be properly so-called) existing in the members of the community or any class of them to take

advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a “right

accruedâ€. This view has also been received approval in India in the judgement of the Apex Court in the case of Lalji Raja & Sons Vs. Hansraj

Nathuram reported in (1971) S.C. 924, in the case of Hingerfold Investment Trust Ltd. Vs. Haridas Mundra reported in 1972 S.C. 1826 and in the

case of Zobrali Vs. Arjuna reported in 1980 S.C. 101.

Having thus given my anxious consideration, I am of the view that after 01.07.2006, no person, who was earlier an aspirant for the post of

Panchayat Shiksha Mitra, can be appointed only because his or her name figured in the panel of Panchayat Shiksha Mitra. The post of

Panchayat Shiksha Mitra has been abolished with effect from 01.07.2006 and after abolition of the post, no one can be appointed on the

post of Panchayat Teacher on the basis of his mere empanelment of Panchayat Shiksha Mitra. The view taken in the judgement of the

Division Bench in the case of Smt. Renu Kumari Pandey (supra) is a good law. I will have no hesitation in holding that the earlier Division Bench

judgement in the case of Kishori Prasad (supra), for the reasons indicated above, has not correctly decided the law and is, accordingly, overruled.â€​

The ratio displayed from the said pronouncement of the Full Bench, which is unanimous, appears to lay down the law that once the scheme of

absorption has come into force, then any person claiming a right to be appointed as a Shiksha Mitra cannot be reopened thereafter as the very post

stood abolished with effect from 01.07.2006. The appellant, therefore, does not get any right to claim appointment as, admittedly, the appellant was not

appointed as a Shiksha Mitra. The scheme of Shiksha Mitra having been abandoned on 01.07.2006, there is no occasion now to consider the dispute

raised by the appellant for appointment as Shiksha Mitra.

However, the same may have a bearing on the absorption of the respondent-petitioner as a Panchayat Shikshak. It may not be appropriate to interfere

with the appointment of the respondent-petitioner at the instance of the appellant who has been unable to carve out any right for herself for

interference by this Court but this, however, does not take away the powers of the Competent Authority having made the appointment of the

respondent-petitioner to examine the issue of absorption of the respondent-petitioner by any dubious means.

The contention raised by the learned counsel for the respondent that the District Appellate Authority did not have the jurisdiction to deal with this issue

does not appeal to reason keeping in view the fact that the Full Bench decision in the case of Kalpana Rani (supra) itself has referred to the circular

dated 14.05.2009 in paragraph 94 of the reported judgement and in paragraph 96 has categorically held that the law was delegation of power made by

the State Government in the circular dated 14.05.2009 vesting powers of deciding any dispute relating to Panchayat Shiksha Mitra only by the

Tribunal. In view of this clear pronouncement and the aforesaid circular, it cannot be said that the Tribunal did not have the jurisdiction to deal with the

matter.

In view of what has been concluded hereinabove, the appeal is partly allowed to that extent that the date of birth of the respondent-petitioner as

assumed to be 07.10.1975 by the learned Single Judge is set aside. The date of birth of the respondent-petitioner undisputedly remains 07.10.1974.

Insofar as the claim of the appellant is concerned, as observed above, the same cannot be considered in the light of the observations of the Full Bench.

The said relief stands declined. Appeal stands disposed off accordingly.

It will be open to the concerned authority to pass an appropriate order keeping in view the observations made above.