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2012 DIGILAW 29 (PAT)

Prakash Choudhary v. State Of Bihar

2012-01-06

BIRENDRA PRASAD VERMA

body2012
ORDER (Per: HONOURABLE THE CHIEF JUSTICE) Feeling aggrieved by the order dated 29th April 2011 made by the learned single Judge in above CWJC No. 15339 of 2010, the writ petitioner has preferred the present Appeal under Clause 10 of the Letters Patent. 2. The matter at dispute is the selection of the respondent no. 13, one Prakash Ram for appointment as Panchayat Teacher in Turki Middle School, Gram Panchayat-Tariyama, P.S.-Bakhityarpur, District-Saharsa pursuant to a selection process commenced in 2006 under the Bihar Panchayat Elementary Teacher (Employment and Service Conditions) Rules, 2006 (hereinafter referred to as ‘the 2006 Rules’). 3. It is the grievance of the appellant that although the appellant had higher marks than the respondent no. 13, respondent no. 13 was shown above the appellant in the merit list and was selected for appointment as Panchayat Teacher. The complaint made to the Appellate Authority under Rule 18 of the 2006 Rules was rejected on 24th July 2010. The Appellate Authority recorded that the appellant had 53.55% whereas the respondent no. 13 had 54.55% marks. Thus the respondent no. 13 had a higher merit than the appellant. 4. The challenge to the order of the Appellate Authority in CWJC No. 15339 of 2010 has been rejected by the learned single Judge in view of the finding recorded by the Appellate Authority below. Therefore, this Appeal. 5. Learned Advocate Mr. Ratan Kumar has appeared for the appellant. He has challenged the very finding that the respondent no. 13 had higher merit. 6. We have before us the Intermediate mark-sheets of both, the appellant and the respondent no. 13. The appellant has secured 498 marks out of 900 marks whereas the respondent no. 13 has secured 491 marks out of 900 marks. Evidently, at the Intermediate examination the appellant had a higher merit than the respondent no. 13. Rule 9 of the 2006 Rules, inter alia, lays down the process of selection of Panchayat Teachers. Sub rule (v) of Rule 9 provides for preparation of selection panel on the basis of average of the percentage of marks obtained at Intermediate examination and at two years’ training or B.L.Ed examination. It is an admitted position that neither the appellant nor the respondent no. 13 has received training; i.e. both of them are untrained. Only consideration, therefore, would be marks obtained at the Intermediate examination. 7. Learned Advocate Mr. It is an admitted position that neither the appellant nor the respondent no. 13 has received training; i.e. both of them are untrained. Only consideration, therefore, would be marks obtained at the Intermediate examination. 7. Learned Advocate Mr. Bipin Bihari Singh has appeared for the respondent no. 13. He has submitted that the respondent no. 13 has not only passed Intermediate examination, he has also done his B.A.(Hons.) from Bhupendra Narayan Mandal University, Laloonagar, Madhepura. 8. Be that as it may, the 2006 Rules do not provide for additional weightage for higher qualification. The only qualifications relevant are the Intermediate examination and the teachers training examination. Hence, the degree of B.A. (Hons) secured by the respondent no. 13 is of no consequence as far as the selection panel is concerned. 9. For the aforesaid reasons we have to hold that the appellant had higher merit than the respondent no. 13 for the purpose of selection and appointment as Panchayat Teacher. The Appellate Authority below has manifestly erred in recording that the appellant had secured 53.55 % marks although he had secured 55.33% marks at Intermediate examination. The factual error committed by the Appellate Authority has resulted into grave injustice to the appellant. 10. For the aforesaid reasons we allow this Appeal. The impugned order dated 29th April 2011 made by the learned single Judge in CWJC No. 15339 of 2010 is set aside. CWJC No. 15339 of 2010 is allowed. The judgment and order dated 24th July 2010 passed by the District Teacher Employment Appellate Authority, Saharsa in Appeal NO. 178 of 2009 is quashed and set aside. The Appeal No. 178 of 2009 is allowed. 11. It is held that the appellant Prakash Choudhary was higher in merit than the respondent no. 13 Prakash Ram. The selection of the respondent no. 13 Prakash Ram is, therefore, vitiated. The appointing authority under the 2006 Rules will take necessary action for removal of the respondent no. 13 and for appointment of the appellant as Panchayat Teacher. On such appointment, the appellant will be entitled to seniority from the due date i.e. 10th October 2007. However, the appellant will not be entitled to any other service benefit such as arrears of salary, pay fixation, increments, pension or any other benefit that may be admissible under the relevant rules. On such appointment, the appellant will be entitled to seniority from the due date i.e. 10th October 2007. However, the appellant will not be entitled to any other service benefit such as arrears of salary, pay fixation, increments, pension or any other benefit that may be admissible under the relevant rules. The aforesaid exercise shall be completed within four weeks from the date of production of the certified copy of this order.