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2009 DIGILAW 473 (PAT)

RAMBHA KUMARI v. STATE OF BIHAR

2009-03-24

MRIDULA NISHRA

body2009
ORDER : 1. Petitioners in all these writ applications have obtained Up Shashtri degree from Kameshwar Singh Darbhanga Sanskrit University,Darbhanga. Their grievance is that in terms of Rule 8 of Bihar Panchayat Primary Teachers (appointment and service condition) Rule 2006 (hereinafter referred to as the 2006 rules, the necessary educational qualification for appointment on the post of Prakhand Teacher and Panchayat Teacher is Intermediate pass or equivalent examination. The degree of Up Shashtri has been recognized by the State Government to be equivalent to Intermediate and in this view of the matter the respondents have no jurisdiction to declare the Up Shashtri Degree holders not eligible/unfit for appointment on the post of Primary teachers in violation of Rules framed by the State Government in exercise of powers vested in it by the Constitution of India and Bihar Panchayat Raj Act 2006. 2. In all these writ applications petitioners have challenged their respective impugned orders, issued by the Mukhiya and Panchayat Secretary of their respective Panchayats terminating their service in the light of the letters issued by the concerned District Superintendent of Education in compliance of the order contained in letter no.4240 dated 15.11.2007 issued by the Principal Secretary, department of Human Resources declaring Up Shashtri degree to be inappropriate for appointment on the post of Primary Teachers. 3. Petitioners in all these writ applications were appointed on the post of Panchayat Teachers in terms of Rule 8 of Bihar Panchayat Primary Teachers (appointment and service condition) Rules 2006. Petitioners in some of the writ applications were appointed on the post of panchayat Siksha Mitra and subsequently absorbed on the post of Panchayat Teachers in terms of Rule 20 (ii) (iii) of 2006 Rules. In some of the writ applications, petitioners were getting their salary but suddenly stopped on the direction of the concerned District Superintendent of Education, but in some of the writ applications, petitioners though appointed and working on the post were not getting their salary at the instance of the concerned District Superintendent of Education. 4. The issue whether the Up Shastri degree is equivalent to Intermediate degree and on that basis appointment could be made on the post of Primary teachers under the rules, after undergoing proper selection, has been settled and decided by this Court in C.W.J.C.No.12456 of 2008 and analogus cases (Ribha Rani- Vrs- State of Bihar and others). 4. The issue whether the Up Shastri degree is equivalent to Intermediate degree and on that basis appointment could be made on the post of Primary teachers under the rules, after undergoing proper selection, has been settled and decided by this Court in C.W.J.C.No.12456 of 2008 and analogus cases (Ribha Rani- Vrs- State of Bihar and others). It has been decided that the letter no.4240 dated 15.11.2007 issued by the Principal Secretary, so far it relates to degree in Sanskrit equivalent to Intermediate degree must be held to be bad in law because the rules must be given precedent over executive decisions and Rule 8 clearly prescribed that for Panchayat teachers the degree of Intermediate from any institution recognized by the government or any equivalent degree from such institution would be sufficient educational qualification. In this very decision in it has further been held that “On a proper consideration of the submissions advanced by both the parties, this court finds merit in the submission made on behalf of the petitioners. They have a valid cause of action against their threatened removal. The executive decision contained in annexure-1 (letter no.4240 dated 15.11.2007) which is the basis for annexure-2 (termination order) is found to be contrary to eligibility criteria laid down in the Rules. Such a change in the eligibility criteria cannot be treated as clarification or an order removing defects in implementation of the rules. Such changes can be brought about only by suitable amendment in the Rules. It is also found that provisions in Rule 20(i) will not amount to, supercession of all circulars, decisions and rules which are not directly related only to the appointment of primary teachers/physical teachers/panchayat teachers. The equivalence of degrees and recognition of institutions by the State Government in the department of Education or Personnel have purpose other than merely of appointment to post of such teachers as are mentioned in Rule 20(i). However, it goes without saying that if the State Government is so inclined it can alter its earlier policy decisions but only from a prospective date.” 5. Admittedly the State Government thereafter came out with amendment in 2006 Rules whereby Up Shashtri degree and Maulvi degree is not considered to fulfill educational eligibility criteria for appointment on the post of Primary/Prakhand teachers. Admittedly the State Government thereafter came out with amendment in 2006 Rules whereby Up Shashtri degree and Maulvi degree is not considered to fulfill educational eligibility criteria for appointment on the post of Primary/Prakhand teachers. Persons holding Maulvi degree, after 2008 amended rules coming into force can be appointed on the post of Urdu teachers and not on general teachers post. Persons holding Up Shastri degree cannot be appointed on the post of Primary teachers for the reasons that Sanskrit is not a subject to be taught at primary level. This amended provision is applicable only with effect from the date 2008 rule has come into fore i.e. August 2008. Petitioners in all these writ applications have been terminated from their service prior to coming into force of 2008 rules. In Ribha Rani’s case it has been decided by this Court that if the State Government is so inclined it can alter its earlier policy decision but only from a prospective date. In this view the amended provision under 2008 rules will not have any impact on the petitioners appointment as Panchayat/Prakhand teachers. Petitioners case is fully covered by Ribha Rani’s case and other subsequent cases decided on this point. 6. Mr. Lalit Kishore, A.A.G.I however tried to distinguish petitioners case from the case of Ribha Rani’s case. He submitted that subsequent to petitioners termination process for second phase appointment has started and the posts earlier held by petitioners must have been declared vacant and advertised for appointment. Several persons must have filed their applications for their appointment against these posts and would have undergone the process for selection. In these circumstances persons who would have applied for their appointment against these posts are also necessary party. I do not find much force in this submission considering the fact that all these writ applications were filed much before the advertisement for appointment of primary teachers in the second phase was published. The State Government through his counsel must have received information that termination orders are under challenge before the High Court. Inspite of that if posts were declared vacant and any process for selection initiated against these posts it is for the government to decide why it was done. The State Government had knowledge that in Ribha Rani’s case already termination orders like the impugned termination orders have been quashed treating them as illegal and without jurisdiction. 7. Mr. Inspite of that if posts were declared vacant and any process for selection initiated against these posts it is for the government to decide why it was done. The State Government had knowledge that in Ribha Rani’s case already termination orders like the impugned termination orders have been quashed treating them as illegal and without jurisdiction. 7. Mr. Shukla learned counsel representing some of the petitioners on the other hand has stated that the posts held by the petitioners have not been advertised. It has also been stated that the petitioners are still discharging their duties on their posts as in some of the cases termination orders have not been issued simply payment of salary has been stopped. Whatever be the matter, the issue which is for consideration in all these writ applications have already been decided and settled. 8. Considering the aforesaid facts and circumstances of the case, the District Superintendent of Education of East Champaran, Begusarai, Supaul, Araria and Katihar are directed to reinstate the petitioners forthwith in case termination order has been issued and petitioners have been restrained from discharging their duty. The District Superintendent of Education of concerned district as well as the Mukhiya/Panchayat Secretary of the concerned Gram Panchayats are directed to make payment of arrears of salary as well as current salary to the petitioners for which they are entitled. The respondents are further directed to allow the petitioners to discharge their duties. 9. Accordingly the respective impugned orders in all these writ applications are quashed and all these writ applications are allowed.