Subodh Kumar Yadav vs The State of Bihar and Others

Mihir Kr. Jha, J.—Heard counsel for the parties. Both these writ applications arise out of the same impugned order passed by the Block Development Officer, Khutauna, whereby and whereunder, while he has rejected the case of Subodh Kumar Yadav the petitioner in C.W.J.C. No. 16486/2008 for appointment on the post of Panchayat Shiksha Mitra on the ground that the post of Panchayat Shiksha Mitra has been abolished on and after 17.2006, it has also directed for termination of the service of the Nagmani Prasad petitioner in C.W.J.C. No. 13708 of 2008 on the ground that the petitioner Subodh Kumar Yadav despite having secured higher marks and better weightage was wrongly edged out in course of appointing Nagmani Prasad as a Panchayat Shiksha Mitra.

Mr. Hemendra Prasad Singh, learned Senior Counsel appearing on behalf of the petitioner Subodh Kumar Yadav has submitted that once the Tribunal, the B.D.O. being the competent authority under Rule 18 of Bihar Panchayat Teachers Appointment Rules, 2006, hereinafter referred to as the Rules had come to a conclusion that the petitioner Subodh Kumar Yadav was wrongly left out in the process of selection and appointment on the post of Panchayat Shiksha Mitra, he had no option but to issue a direction for appointing the petitioner Subodh Kumar Yadav as Panchayat Shiksha Mitra so that he could be eventually absorbed on the post of Panchayat Teacher in terms of Rule (iii) of Bihar Panchayat Teachers Appointment Rules, 2006. In this context, he has placed reliance on an order of Division Bench of this Court dated 23.7.2008 passed in L.P.A. No. 945 of 2007 (Manoj Kumar Mandal vs. State of Bihar and Others) as also on an order of this Court in the case of Rima Kumari vs. The State of Bihar reported in 2012 (1) PLJR 107.

Counsel for the State on the other hand has submitted that once the post of Panchayat Shiksha Mitra was abolished w.e.f. 1.7.2006, no one could be appointed against an abolished post on any ground whatsoever. He has further explained that the scope of Rule 20(iii) of 2005 Rules was only to absorb the working Panchayat Shiksha Mitra as on 1.7.2006 and not to appoint fresh Panchayat Shiksha Mitra. He has also referred to the clarification issued by the State Government in its letter no. 1899 dated 18.11.2006, whereby and whereunder, the Director of Primary Education had issued the general circular as with regard to making no further appointment on the post of Panchayat Shiksha Mitra after 1.7.2006 in view of Bihar Panchayat Shikshak Appointment Rules, 2006.

In the considered opinion of this court, the submission of learned counsel for the State has to be accepted. The abolition of the post of Shiksha Mitra was fate accompli on account of the Government policy. The qualification and manner of appointment of the two posts i.e. Panchayat Shiksha Mitra and Panchayat Teacher being entirely different, the selection undergone and panel prepared for the post of Panchayat Shiksha Mitra in fact could not have been utilized for appointment on the post of Panchayat Teacher under the Rules. The Rules in fact very clearly envisages the new procedure to be undertaken on the post of Panchayat Teacher. Thus once this aspect becomes clear that the post of Panchayat Shiksha Mitra was abolished and no longer in existence on or after 1.7.2006, it would not be difficult for this court to hold that the petitioner could not have been appointed against an abolished post of Panchayat Shiksha Mitra so as to be absorbed on the post of Panchayat Teacher. To that extent the reliance placed by teamed counsel for the petitioner on the judgment of this Court in the case of Rima Kumari (supra) is itself misconceived, inasmuch as, in paragraph no. 1 it has been conclusively held that: --

Having heard counsel for the parties as with regard to the following relief. --

This is an application for issuance of an appropriate writ, order or direction commanding the respondents to appoint the petitioner on the post of Shiksh Mitra in Pipra Khem Panchayat in place of respondent no. 9 whose appointment has been cancelled by the enquiry officer/respondent no. 4 and selected the petitioner for appointment under the reserved seat for general woman and/or further writ or direction commanding the respondent to give the joining letter to the petitioner and treat her in service w.e.f. 14.2.2006 as the enquiry officer has found in enquiry that the respondent no. 9 has illegally been appointed in the reserved general woman seat though he comes from male most backward class.

While this Court is of the considered opinion that upon abolition of the post of Shiksha Mitra in terms of the Government policy and enforcement of Bihar Panchayat Prarambhik Shikshak (Niyojan Awam Seva Sarta) Niyamawali, 2006 no writ of mandamus can be issued for appointing the petitioner on the abolished post of Shiksha Mitra. Admittedly, the petitioner was not appointed as Shiksha Mitra prior to 30.6.2006 and therefore, her absorption on the post of Panchayat Shikshak in terms of Rule 20(iii) of 2006 Rules reading as follows: --

is not possible. The prayer of the petitioner to that extent must be rejected.

The reliance placed by Mr. Singh, on the second part of the order in the case of Rima Kumari (supra) seems to be also misconceived, inasmuch as, in view of the facts recorded in paragraph no. 2, it would be clear that whatever was said therein with regard to the person not selected and appointed on the post of Panchayat Shiksha Mitra was actually meant for assailing an illegal selection of respondent No. 9. As a matter of fact the Division Bench in the case of Rima Kumari while appreciating the facts had held that since Respondent no. 9 of that case had secured lesser marks to the petitioner Rima Kumari, her appointment could not be served. Therefore, whatever was said in the case of Rima Kumari (supra) would also squarely apply with full force in the facts of the present case, inasmuch as, here also it was on the complaint of the petitioner, Subodh Kumar Yadav that a lesser merit candidate, Nagmani Prasad, the petitioner in the other case, got marching order by way of cancellation of his appointment under the common impugned order.

The reliance placed by Mr. Singh learned counsel for the petitioner on the order of the Division Bench of this Court in the case of Manoj Kumar Mandal (supra) also be of no avail, inasmuch as, first of all. the Division Bench therefore, does not take into account the either provisions of Bihar Panchayat Teachers Appointment Rules, 2006 or gives any detail of the appointment of the appellant writ petitioner. In fact, that order cannot be made applicable to the facts and circumstances of this case specially when the Division Bench has not noticed the statutory Rule 20(iii) of Bihar Panchayat Teachers Appointment Rules, 2006 as quoted above. In any event, the latter Division Bench in the case of Renu Kumari & Ors. vs. The State of Bihar and Ors., reported in 2011 (4) PLJR 297 has also taken a view that there can be no fresh appointment on the post of Panchayat Shiksha Mitra on or after 1.7.2006.

In that view of the matter, this Court would not find any merit in the application so far it relates to rejection of the case of the petitioner, Subodh Kumar Yadav for his being appointed against the post of Panchayat Shiksha Mitra.

C.W.J.C. No. 16486 of 2008 is, accordingly, dismissed.

In the second writ petition, C.W.J.C. No. 17308 of 2008 the petitioner, Nagmani Prasad has assailed the same impugned order on three grounds. Firstly it has been submitted that the B.D.O. had no jurisdiction to pass the impugned order as on the date of the passing of the impugned order on 22.9.2008, inasmuch as, by that time the District Teachers Appellate Authority in terms of amended Rule 18 of Bihar Panchayat Teachers Appointment Rules, 2006 had already been constituted w.e.f. 25.8.2008. This submission has to be only noted for its being rejected. The petitioner, Subodh Kumar Yadav had in fact filed a writ application questioning the appointment of the petitioner Nagmani Prasad before this Court in C.W.J.C. No. 7092 of 2008 at a point of time when the power in Rule 18 of the Bihar Panchayat Teachers Appointment Rules, 2006 was vested exclusively in the B.D.O. This Court accordingly, by an order dated 5.5.2008 had directed the B.D.O., being the competent Authority under Rule 18, to consider the grievance of the petitioner Subodh Kumar Yadav as against Nagmani Prasad and others. Therefore, if the Block Development Officer has passed the impugned order in compliance of the order of this Court, he cannot be said to have acted without jurisdiction.

Learned counsel for the petitioner appearing on behalf of Nagmani Prasad, however, has submitted that in view of the ammended Rule 18 w.e.f. 25.8.2008 constituting the tribunal i.e. District Teachers Appellate Authority all the pending complaints would be deemed to have been automatically transferred from the B.D.O. to the concerned District Teachers Appellate Authority. Such submission also is devoid of any merit, inasmuch as, neither in the Bihar Panchayat Teachers Appointment Rules, 2006 nor by any other statutory enactment there was a provision made for automatic transfer of all the pending complaints. It is well known that the tribunal after being constituted on 25.8.2008 started functioning at a belated stage and not immediately on 25.8.2008. in that view of the matter, when there was also no provision made in the statute for automatic transfer of cases, the B.D.O., Khutauna had committed no error in complying the direction contained in order of this Court dated 5.5.2008 in C.W.J.C. No. 7092 of 2008 while disposing of the complaint of the petitioner, Subodh Kumar Yadav as against illegal appointment of Nagmani Prasad and others.

Learned counsel for the petitioner had then submitted that the application filed by the petitioner Subodh Kumar Yadav assailing the appointment of Nagmani Prasad, the petitioner of the second case was also barred by limitation. For this he has referred to the complaint filed by the petitioner Subodh Kumar Yadav which was filed only after coming into effect of the Bihar Panchayat Teachers Appointment Rules, 2006. The question of delay or limitation always have to be considered if the statute prescribes the period of limitation Rule 18 which provides for filing of a complaint came into force w.e.f. 1.7.2006 for the first time by way of enforcement of Bihar Panchayat Teachers Appointment Rules, 2006 and had read as follows: --

Admittedly, the petitioner Nagmani Prasad having been absorbed as a Panchayat Teacher in the aforementioned Rules w.e.f. 1.7.2006, any complaint against his appointment whether directly or by absorption from the post of Shiksha Mitra could have been made in terms of Rule 18 which did not provides any limitation. The power vested to the District Teachers Appellate Authority having been substituted by amendment in the rules by notification no. 3148 dated 25.8.2008 also did not prescribe any limitation as would be evident from the subsequent Rule reading as follows: --

There being thus no period of limitation in the amended Rule 18 the counsel for the petitioner cannot at least satisfy this Court on the question of limitation. Learned counsel for Subodh Kumar Yadav in fact has rightly relied on another notification dated 25.8.2008 which only prescribes one month for disposal of the complaint filed by the concerned person. The period prescribing disposal of the complaint cannot be equated with the limitation in filing of the complaint. Thus the second ground raised by the learned counsel for the petitioner also must fail.

The last submission as with regard to the justification of appointment of petitioner Nagmani Prasad on the ground that the petitioner Subodh Kumar Yadav had never produced his mark-sheet and, was rightly rejected in course of the preparation of the panel by the Panchayat has to be again noted only for its being rejected, inasmuch as, this aspect has been examined by the Authority namely, the B.D.O. who an perusal of the records has recorded the finding that the mark-sheet of the Subodh Kumar Yadav was forming part of his application and yet the same was ignored. In such a situation this Court cannot rely on the proceedings of the resolution of the Panchayat which had rejected the candidature of Subodh Kumar Yadav on the basis of extraneous material that he was still a student. To that extent the resolution of Panchayat reading as follows: --

is itself an evidence of favour being bestowed to Nagmani Prasad who despite having lower marks and ranking below in the merit list was sought to be selected and appointed at the expense of Subodh Kumar Yadav, admittedly a better candidate on merit.

The manner in which the said proceedings have been recorded would only indicate that members of the Sukh Suvida Samiti of Panchayat were determined to do away with the higher marks holder like Subodh Kumar Yadav only by the process of elimination. In any event, when the B.D.O. being the appellate tribunal under the Rules has recorded the finding of fact with regard to availability of the mark-sheet of the Subodh Kumar Yadav in the records, this Court in exercise of its power under Article 226 of the Constitution of India would not go into the disputed question of fact as to whether his such mark-sheet was available. Thus the third and last ground raised by the counsel for Nagmani Prasad is devoid of any merit and is according rejected.

That being so, this application also must fail and is dismissed. Before parting with it is made clear that now when a vacancy on the Panchayat Teacher has emerged on account of termination of service of the petitioner, Nagmani Prasad, the Panchayat Secretary of Raj Durgipatti Panchayat is expected to take expeditious steps for filling up the same strictly in accordance with Panchayat Teachers Appointment Rules, 2006 preferably within a period of six months from the date of receipt/production of a copy of this order.