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2012 DIGILAW 376 (PAT)

Annu Kumari v. State of Bihar

2012-03-01

BIRENDRA PRASAD VERMA, R.M.DOSHIT

body2012
ORDER Feeling aggrieved by the judgment and order dated 27th June, 2011 passed by the learned single Judge in above CWJC No. 17800 of 2010, the writ petitioner has preferred this Appeal under Clause 10 of the Letters Patent. 2. It appears that in December 2006, the appellant had been appointed as a Prakhand Shikshak under the Bihar Panchayat Elementary Teacher (Employment and Service Conditions) Rules, 2006 in Government Middle School, Akhtiyarpur Block Mahua, District – Vaishali. It is the claim of the appellant that since her appointment in December 2006 she has been continuously rendering service. Nevertheless, since 1st April 2009 the appellant has not been paid salary. 3. Feeling aggrieved, the appellant approached this Court under Article 226 of the Constitution in above CWJC No. 17800 of 2010 for recovery of unpaid salary. 4. The petition was contested by the respondent authorities. According to the respondents, the appellant had acquired the Certificate of Prathama awarded by the Hindi Sahitya Sammelan, Allahabad. The said qualification is not recognised by the State Government. The petitioner was, therefore, not entitled for appointment as a Prakhand Shikshak. The learned single Judge has upheld the defence raised by the respondents. Relying upon the judgment of this Court in the matter of the State of Bihar & Ors. Vs. Mamta Kumari [2010 (4) PLJR 318] and Article 358 of the Bihar Education Code, the learned single Judge was pleased to hold that the qualification acquired by the appellant was not recognised by the State of Bihar especially for appointment as a teacher. The appointment of the appellant as a Prakhand Shikshak was, therefore, illegal and void ab initio. Therefore, this Appeal. 5. Learned advocate Mr. Nityanand Mishra has appeared for the appellant. He has submitted that the appellant still continues in service. The writ petition filed by the appellant was confined to the claim for salary. The learned single Judge has, however, not addressed the grievance expressed by the appellant. 6. The Appeal is contested by the learned advocate Mr. Krishna Kant Singh appearing for the respondents. We have perused the records. In the counter affidavit filed by the District Superintendent of Education, Vaishali, he has raised the issue of eligibility of the appellant for appointment as Prakhand Shikshak. He does not deny that the appellant is still continuing in service. The Appeal is contested by the learned advocate Mr. Krishna Kant Singh appearing for the respondents. We have perused the records. In the counter affidavit filed by the District Superintendent of Education, Vaishali, he has raised the issue of eligibility of the appellant for appointment as Prakhand Shikshak. He does not deny that the appellant is still continuing in service. There is nothing on the record to suggest that the appellant’s service has been terminated on the ground of she being ineligible for appointment as Prakhand Shikshak. It further appears that the District Superintendent of Education had on 12th August 2010 issued a general direction to all Block Education Extension Officers to cancel the appointment of the Panchayat Teachers who did not possess the requisite qualification. The said direction does not seem to have been carried out by the concerned Block Education Extension Officer, now redesignated as Block Education Officer. 7. Following the Division Bench judgment in the matter of Mamta Kumari (Supra), the identical issue has been decided by us in the matter of Poonam Sharma Vs. The State of Bihar & Ors. [ 2012 (1) PLJR 226 ]. 8. Irrespective of her eligibility, so long as the appellant continues in service, she is entitled to receive due salary. In respect of her eligibility for appointment as Prakhand Shikshak, we agree with the learned single Judge that the Certificate of Prathama acquired by the appellant from the Hindi Sahitya Sammelan, Allahabad is not recognised by the State Government and that the appellant is not eligible for appointment as Prakhand Shikshak. It does appear that in spite of specific instruction issued by the District Superintendent of Education, the concerned Block Education Extension Officer has not taken any action for cancelling the appointment of the appellant and such other teachers nor has the appellant’s service been terminated. 9. For the aforesaid reason, we allow this Appeal partially. We confirm the impugned judgment of the learned single Judge in so far as it is held that the appellant is not eligible for appointment as Prakhand Shikshak. However, the respondents are directed to pay salary to the appellant withheld since 1st April 2009 till the date she continues in service. So long as the appellant has continued in service, the respondents will pay the salary regularly. However, the respondents are directed to pay salary to the appellant withheld since 1st April 2009 till the date she continues in service. So long as the appellant has continued in service, the respondents will pay the salary regularly. The arrears of salary payable under this order will be paid as early as possible but not beyond 31st March 2012. In the event the appellant’s service has already been terminated, such salary shall be paid till the date of termination of service. Subject to the above directions, the Appeal and the Interlocutory Applications are disposed of. 10. Registry will send copy of this order to the Principal Secretary, Human Resources Development Department, Government of Bihar, Patna and the District Programme Officer, Establishment, Vaishali at Hajipur.