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2012 DIGILAW 1314 (PAT)

Anil Kumar Mishra v. State of Bihar

2012-09-14

NAVIN SINHA

body2012
ORDER Heard learned counsel for the petitioner and the State. 2. The petitioner is aggrieved by order dated 5.2.2007 cancelling his appointment as a Shiksha Mitra leading to annulment of his status as Panchayat Shikshak, pursuant thereto. The challenge before the District Teachers Appointment Appellate Tribunal, Buxar, was rejected by order dated 25.6.2012 in Appeal No. 155 of 2009. 3. Learned counsel for the petitioner submits that he was appointed as a Shiksha Mitra on 2.6.2005. The contract could not be renewed after 11 months as the model Code of Conduct, came into force. On 8.8.2006, Government order No. 1219 was issued that in such cases where a Shiksha Mitra may have nonetheless continued to work and the cut off date 1.7.2006 intervened for acquisition of status as a Panchayat Shikshak, a right ensued to such persons for continuance. The subsequent termination is conclusive evidence he was working on 1.7.2006. 4. Respondent no. 9 filed C.W.J.C. No. 14980 of 2007 seeking appointment, impleading the petitioner as respondent no. 14. The writ petition was dismissed on 25.7.2011 holding that even if he had higher marks than the petitioner and the appointment of the petitioner was allegedly illegal, the post of Shiksha Mitra having been abolished, no appointment could be granted to him. 5. Counsel for the State urged that once it has been found that the petitioner had lesser marks than respondent no. 9, even if the latter is not entitled to any relief, the legality of the appointment of the petitioner remains open. Notices may be issued to respondent no. 9. 6. Each case has to be decided on its own facts including subsequent developments that may have taken place. The petitioner was appointed on 2.6.2005, and terminated on 5.2.2007. He had continued to work all along, acquired the status of a Panchayat Shikshak and also work experience. 7. Even if respondent no. 9 has been held entitled to no relief, that may not lend validity to the appointment of the petitioner. But in view of the dismissal of C.W.J.C. No. 14980 of 2007, the Court is not satisfied for need of issuance of notice to respondent no. 9. 8. The petitioner has continued to work as a teacher since 2005 and can certainly be stated to have acquired proficiency in his professional capacity as compared to a fresh entrant. But in view of the dismissal of C.W.J.C. No. 14980 of 2007, the Court is not satisfied for need of issuance of notice to respondent no. 9. 8. The petitioner has continued to work as a teacher since 2005 and can certainly be stated to have acquired proficiency in his professional capacity as compared to a fresh entrant. To remove him and loose the benefit of his experience shall be to the benefit of none. The writ Court may not issue a writ of certiorari in the given facts of a case merely because it may be appropriate to do so. Keeping in mind a conspectus of the entire issues that arise in an appropriate case, the writ Court may decline to interfere even in a case where interference may otherwise be appropriate. The present is considered to be one such case. 9. In (2003) 6 SCC 545 (Chandra Singh Vs. State of Rajasthan) it was held:– “43. Issuance of a writ of certiorari is a discretionary remedy. (Champalal Binani Vs. CIT). The High Court and consequently this Court while exercising their extraordinary jurisdiction under Article 226 or 32 of the Constitution of India may not strike down an illegal order although it would be lawful to do so……” 10. In view of the finding arrived at that the petitioner acquired the status of a Panchayat Shikshak on 1.7.2006, by virtue of a Government instruction dated 8.8.2006, the order of the Tribunal dated 25.6.2012, automatically collapses. 11. The orders dated 5.2.2007 and 25.6.2012 are accordingly set aside. 12. The petitioner is held entitled to be reinstated. The writ application is allowed.