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2013 DIGILAW 1017 (PAT)

Sanjay Kumar v. State of Bihar

2013-08-19

ASHWANI KUMAR SINGH, R.M.DOSHIT

body2013
ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 1. Though served, the respondent nos. 8 and 9 have not entered appearance. 2. Feeling aggrieved by the order dated 12th May 2011 made by the learned single Judge in C.W.J.C. No. 17406 of 2010, the writ petitioner has preferred this Appeal under Clause 10 of the Letters Patent. 3. Pursuant to the decision of the Gram Panchayat Raj, Gonawan, Harnaut, District-Nalanda, on 1st April 2005, the appellant was appointed as Panchayat Shiksha Mitra under the then scheme for appointment of Panchayat Shiksha Mitra. Pursuant to the Bihar Panchayat Elementary Teacher (Employment and Service Conditions) Rules, 2006 (hereinafter referred to as “the Rules of 2006”), by operation of Rule 20(iii) thereof, the appellant came to be absorbed as Panchayat Teacher under the Gram Panchayat Raj, Gonawan. Feeling aggrieved by the action of the Gram Panchayat in not paying him salary since April 2009, the appellant approached this Court under Article 226 of the Constitution in C.W.J.C. No. 17406 of 2010. 4. It appears that under the then scheme for appointment of the Panchayat Shiksha Mitra, one Indra Prakash Gautam was appointed as Panchayat Shiksha Mitra under the Gram Panchayat Raj, Gonawan in 2003. As the said Indra Prakash Gautam did not possess the requisite qualification as per the Government Resolution dated 11th August 2004, his contract of appointment was not renewed in 2005. The resultant vacancy was filled-in by the Gram Panchayat by calling applications and by appointing the appellant as aforesaid. It further appears that the said Indra Prakash Gautam, having acquired the qualification of Sahityabhushan awarded by the Hindi Vidyapeeth, Deoghar equivalent to the intermediate qualification, was appointed as Panchayat Teacher in the Gram Panchayat Raj, Gonawan. Consequent to his appointment as Panchayat Teacher, the Gram Panchayat discontinued payment of remuneration/salary to the appellant. 5. Feeling aggrieved by the appointment of the said Indra Prakash Gautam, the appellant approached the District Teacher Employment Appellate Authority, Nalanda, Biharsharif (hereinafter referred to as “the Appellate Authority”) in Appeal No.1624 of 2009. He questioned the appointment of the said Indra Prakash Gautam on the premise that the qualification of Sahityabhushan obtained by the said Indra Prakash Gautam was not a recognized qualification. He, therefore, could not have been appointed as Panchayat Teacher. He also raised the dispute in respect of the genuineness of the certificate produced by the said Indra Prakash Gautam. He questioned the appointment of the said Indra Prakash Gautam on the premise that the qualification of Sahityabhushan obtained by the said Indra Prakash Gautam was not a recognized qualification. He, therefore, could not have been appointed as Panchayat Teacher. He also raised the dispute in respect of the genuineness of the certificate produced by the said Indra Prakash Gautam. According to the appellant, at the time the said Indra Prakash Gautam was ostensibly taking the examination of Sahityabhushan, he was in fact serving as the Panchayat Shiksha Mitra in the Gram Panchayat. 6. The challenge was rejected by the Appellate Authority only on the ground that on the relevant date the said Indra Prakash Gautam was not present in the school. It appears that the Appellate Authority did not even consider the question whether the said Indra Prakash Gautam was eligible for appointment as Panchayat Teacher under the Rules of 2006. The matter appears to have been raised there. The appellant, instead of challenging the said order approached this Court under Article 226 of the Constitution in above C.W.J.C. No. 17406 of 2010 for recovery of unpaid salary alone. The learned single Judge has dismissed the writ petition. The learned single Judge was of the opinion that once the aforesaid Indra Prakash Gautam was reinstated at his original position, the appellant had no right to the said position or the salary thereof. Therefore, this Appeal. 7. We are at pains to note that the matter at issue has not been properly thrashed. The Government of Bihar has, as early as on 25th August 2008, issued a Circular enlisting the Institutions, degrees and certificates which are not recognized by the State of Bihar for appointment to the post of teachers in the elementary schools. One of the said Institutions is “Hindi Vidyapeeth, Deoghar”. The certificates not recognized are that of “Praveshika” and “Sahityabhushan”. Moreover, the State of Bihar has, with a view to improving the elementary education, under Article 359 of the Bihar Education Code, barred the appointment of teachers who do not possess the Secondary School Examination Certificate from a recognized Board or a Degree from the statutory University. The same has been discussed by a Bench of this Court (of which one of us, the Chief Justice was a party) in the matter of Muralidhar Singh & Ors. The same has been discussed by a Bench of this Court (of which one of us, the Chief Justice was a party) in the matter of Muralidhar Singh & Ors. v. The State of Bihar & Ors., (C.W.J.C. No. 13836 of 2012, decided on 27th November 2012). 8. Thus, in any view of the matter, the qualification of Sahityabhushan acquired by the said Indra Prakash Gautam was not the requisite qualification for appointment as Panchayat Teacher. 9. It is apparent that the contractual appointment of the said Indra Prakash Gautam as Panchayat Shiksha Mitra was not renewed for want of requisite qualification. The resultant vacancy was filled-in by appointment of appellant by inviting applications. Thus, the appointment of the appellant was regular and was not made subject to the appointment of Indra Prakash Gautam. Since his appointment as Panchayat Shiksha Mitra, by operation of Rule 20(iii) of the Rules of 2006, the appellant was absorbed as Panchayat Teacher. Once, the appellant was absorbed as Panchayat Teacher, his service would be regulated by the Rules of 2006. If an occasion arises to terminate his service, the procedure prescribed under Rule 17 of the Rules of 2006 should be followed. In absence of any disciplinary proceeding initiated against the appellant; in absence of the appellant being found guilty of a misconduct, his service could not have been terminated under Rule 17 of the Rules of 2006 either. 10. We are not aware of the circumstances in which the aforesaid Indra Prakash Gautam had been appointed in service as Panchayat Teacher. Even if his appointment as Panchayat Teacher were legal and valid, the same cannot have an adverse effect upon the appointment of the appellant which was independent and was made in accordance with the Rules of 2006. The termination of service of the appellant is, in our opinion, illegal and uncalled for. The learned single Judge has erred in presuming that the appointment of the said Indra Prakash Gautam was made pursuant to the Government Circular dated 4th July 2008 and that he had a right to reinstatement with effect from 24th September 2008. 11. We have time and again held that the Government Circular dated 4th July 2008 is issued in contravention to Rule 20(iii) of the Rules of 2006. 12. For the aforesaid reasons, we allow this Appeal. 11. We have time and again held that the Government Circular dated 4th July 2008 is issued in contravention to Rule 20(iii) of the Rules of 2006. 12. For the aforesaid reasons, we allow this Appeal. Impugned order dated 12th May 2011 made by the learned single Judge in C.W.J.C. No. 17406 of 2010 is set aside. C.W.J.C. No. 17406 of 2010 is allowed. The order dated 24th September 2011 made by the Gram Panchayat, Gonawan is quashed and set aside. The Gram Panchayat, Gonawan will reinstate the appellant in service as Panchayat Teacher and will allow him to join duty within one month from today. On his reinstatement in service, the appellant will be entitled to the remuneration/honorarium/pay admissible to him as a Panchayat Teacher regularly every month. The period from 24th September 2011 till the appellant is reinstated in service will be treated to be the period spent on duty. The appellant will be entitled to the continuity in service and to the remuneration/honorarium/pay for the said period. The amount of arrears of remuneration/honorarium/pay will be paid to the appellant within three months from today. In the event, the appellant is not paid the amount of arrears of remuneration/honorarium/pay within the aforesaid period, the appellant will be entitled to receive the said amount with interest @ 9% per annum. The amount of interest will be calculated from 19th November 2013 till the date of payment. 13. Since Shri Indra Prakash Gautam is not before us, we will not issue any direction in respect of the said Indra Prakash Gautam. However, the respondent no.5, the District Superintendent of Education, Nalanda is directed to examine the case of the aforesaid Indra Prakash Gautam in light of the above referred Article 359 of the Bihar Education Code, Rule 20(iii) of the Bihar Panchayat Elementary Teacher (Employment and Service Conditions) Rules, 2006 and the judgments of this Court. In the event, the appointment of Shri Indra Prakash Gautam is found to be illegal or irregular, the Gram Panchayat will take appropriate steps in accordance with law on receipt of such advice. The aforesaid exercise shall be completed within six weeks from today. 14. Registry is directed to send copy of this order to the respondent nos. 5, 7, 8 and 9 forthwith.