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2013 DIGILAW 1150 (PAT)

Amrendra Kumar v. State Of Bihar

2013-09-20

MIHIR KUMAR JHA

body2013
CAV JUDGMENT Heard learned counsel for the parties. 2. CAV JUDGMENT Heard learned counsel for the parties. 2. Both the writ applications arise out of the common impugned order dated 7.2.2012 passed by the District Teachers Employment Appellate Tribunal, Gaya (hereinafter to be referred to as “the Tribunal”) in Case No. 73 of 2011, whereby and whereunder, the Tribunal has rejected the prayer of the petitioner Bhuvneshwar Kumar by setting aside the order of termination dated 16.9.2006 and also cancelled the appointment of the petitioner Amrendra Kumar which would become more clear from the text of the impugned order, which reads as follows:- ^^dk;kZy; & ftyk f'k{kd fu;kstu vihyh; izkf/kdkj] x;Ka okn la[;k&73@2011 vkns'k ;g dk;Zokgh fnukad 18-08-2011 dk Jh Hkqous'oj dqekj firk gfjxksiky 'kekZ xzke$iks0 lknksiqj Hkk;k ikbZfcxgk ftyk x;k ds vkosnu ij izkjEHk dh xbZ ftlds lkFk vihydÙkkZ }kjk ekuuh; mPp U;k;ky;] iVuk eas nk;j fjV la[;k es ikfjr vkns'k dh izfr Hkh lefiZr dh xbZ ftlds vkyksd esa vihydÙkkZ }kjk ;g vihy nk;j dh xbZA buds vkosnu ¼Øekad 42&31@i½ dk la{ksi eas lkjka’k ;g gS fd vihydÙkkZ f'k{kk fe= ds fu;sktu gsrq iapk;r lfpo ds le{k vkosnu fn;k Fkk ftldh vafre frfFk 11-02-2006 fu/kkZfjr FkhA xzke iapk;r :iliqj d eqf[k;k ds v/;{krk esa fnukad 13-02-2006 dk p;u gsrq cSBd gqbZ ftlesa budk p;u gqvkA ;s fiNM+k oxZ dksfV ds vkosnd FksA fu;kstu bdkbZ ds Kkikad 01@06 fnukad 13-02-2006 ds }kjk buds fu;kstu dk j) dj fn;k x;k vkSj buds txg ij izfri{kh la[;k 09 vejsUnz dqekj firk jke y[ku flag xzke :iliqj dk fu;sktu dj fn;k x;kA budk ;g Hkh dguk gS fd vejsUnz dqekj dk f'k{kk fe= ds :i esa fu;kstu izosf'kdk izek.ki= ds vk/kkj ij fd;k x;k Fkk fdUrq fnukad 21-04-2005 dk budk fu;kstu bl vk/kkj ij lekIr dj fn;k x;k fd ;s bUVjfefM,V ikl ugh FksA fu;kstu lekIr gksus ls igys budks viuk i{k j[kus dk volj ugh fn;k x;kA buds }kjk lacaf/kr inkf/kdkfj;kas ds le{k viuk vH;kosnu fn;k x;kA ml le; ftyk f'k{kd fu;kstu vihyh; izkf/kdkj eas iapk;r f'k{kdksa dh lquokbZ gksrh FkhA vr% ekuuh; mPp U;k;ky; eas fjV ;kfpdk nk;j dh xbZ gSA ckn esa ekuuh; mPp U;k;ky; ls ;kfpdk okil ysdj bl izkf/kdkj es iqu% vihy nk;j dh xbZA bl laca/k esa fu;ksftr f'k{kd Jh vejsUnz dqekj ,oa fu;sktu bdkbZ dks viuk i{k j[kus gsrq uksfVl nh xbZA bl laca/k esa vejsUnz dqekj us viuk i{k j[kkA buds rjQ ls fo}ku vf/koDrk }kjk fyf[kr cgl fn;k x;k ¼Øekad 122&91@i½A v/kksgLrk{kjh }kjk bl dk;Zokgh eas izLrqr lHkh lk{; ,oa muds fo}ku vf/koDrk }kjk fn, x, fyf[kr cgl dk lE;d :i ls voyksdu fd;k x;kA voyksduksijkUr ;g rF; izekf.kr gvk fd ;g ekeyk f'k{kk fe= ds fu;kstu ls lacaf/kr gSA mYys[kuh; gS fd foHkkxh; ifji= la[;k 1899 fnukad 10-11-2006 ds }kjk f'k{kk fe= ds in dks lekIr fd;k tk pqdk gSA vc fdlh dk Hkh f'k{kk fe= ds :i eas fu;kstu ugha gks ldrk gS fdUrq xyr :i ls fu;skftr f'k{kk fe=ksa dks lk{; ds vk/kkj ij gVk;k tk ldrk gSA vr% vihydÙkkZ ds vihy dks [kkfjt fd;k tkrk gSA lafpdk ds voyksdu ls ;g Hkh izekf.kr gksrk gS fd fu;ksftr f'k{kk fe= Jh vejsUnz dqekj vius fu;kstu vof/k esa gh fu;fer Nk= ds :i esa l= 2003&05 esa bUVj dh ijh{kk mÙkh.kZ dhA vr% rRdkfyu ftyk f'k{kk v/kh{kd] x;k ds i=kad 4253 fnukad 18-06-2007 ¼Øekad 77@i½ ds }kjk vejsUnz dqekj ds fu;kstu dks tkylkth dk ekeyk crk;k x;k gS rFkk muds }kjk buds fo:) eqf[k;k ,oa iapk;r lfpo xzke iapk;r :iliqj dks rqjar izkFkfedh ntZ dj vxzsÙkj dkjZokbZ djus dk vkns’k fn;k x;k Fkk rFkk ;g psrkouh nh xbZ Fkh fd voS/k Hkqxrku ds fy, buds fo:) dkjZokbZ dh tk;A lquokbZ ds Øe esa ;g rF; izekf.kr gqvk gS fd vejsUnz dqekj vHkh rd dk;Zjr gSA vr% fu;kstu bdkbZ dks vkns’k fn;k tkrk gS fd mudh ¼vejsUnz dqekj dh½ lsok rRdky lekIr dh tk;A ftyk f'k{kk inkf/kdkjh] x;k dks vkns'k fn;k tkrk gS fd rRdkfyu ftyk f'k{kk v/kh{kd] xk;k ds vkns'k dk vfoyEc vuqikyu lqfuf'pr djkosa ,oa rRdkfyu ftyk f'k{kk v/kh{kd] x;k ds vkns'k ds ckn ls vkt rd gq, xyr Hkqxrku dh olwyh lacaf/kr iapk;r lfpo rFkk eqf[k;k ls djsa rFkk ml i= ds vkyksd esa izkFkfedh ntZ djkuk lqfuf'pr djsaA ¼jke cgknqj flag½ lnL; ftyk f'k{kd fu;kstu vihyh; izkf/kdkj] x;k Kkikad 70 x;k@fnukad 07-02-2012** 3. The fact giving rise to these two writ applications also lie in a very narrow compass. The petitioner Amrendra Kumar was appointed as a Panchayat Shiksha Mitra on 1.3.2003 under the decision of the Gram Panchayat, Rupaspur, Tekari in the district of Gaya and on completion of his period of eleven months tenure, he was given another first extension of a similar period with effect from 1.3.2004 but on completion of the period of eleven months, while others appointed with him as a Panchayat Shikah Mitra were granted further extension for a period of eleven months, the petitioner was not granted any such extension and, therefore, his services were dispensed with/terminated with effect from 1.3.2005. 4. The said post of Panchayat Shiksha Mitra subsequently was advertised by the Panchayat on 4.2.2006 and the petitioner Bhuvneshwar Kumar was appointed against the said post for a period of eleven months vide his appointment letter dated 16.2.2006. It is the case of the petitioner Bhuvneshwar Kumar that in terms of Rule 20(iii) of the Bihar Panchayat Primary Teacher (Employment and Service Condition) Rules, 2006, his services on account of being the working (Karyarat) Panchayat Shiksha Mitra as on 1.7.2006 got absorbed and he continued to work till 16.9.2006 when his services were all of a sudden terminated without any show-cause notice and/or opportunity of hearing and the petitioner Amrendra Kumar and one Ajay Kumar Pathak who were also working as Panhayat Shiksha Mitra were reappointed. The order dated 16.9.206 had given rise to the two cases before the Tribunal which being relevant is also quoted hereinbelow:- ^^iapk;r dk;kZy; :iliqj] fVdkjh i=kad +++++++++++++++++-----1------------ fnukad % 16-09-06 dk;kZy; vkns'k ftyk inkf/kdkjh d i=kad 1946 f'k{kk fnukad 7 twu 2005 ,oa o"kZ 2006 fu;ksftr iapk;r f'k{kd dk tk¡pksijkUr ik=rk lgh ik, tkus ds dkj.k iz[k.M fodkl inkf/kdkjh fVdkjh ds i=kad 559 fnukad 22-08-2006 dks funsZ'k ds vkyksd esa vkb0,0ijh{kk mrh.kZ gksus ds dkj.k Jh vt; dqekj ikBd firk nw/ks'oj ikBd xzke cjfalek@izk0fo0 nkSyriqj ,oa vejsUnz dqekj firk jkey[ku flag] xzke :iliqj m0e/; fo|ky; :iliqj] fVdkjh dk iwukZfu;ksstu fd;k tkrk gSA vkSj buds LFkku ij fu;qDr iapk;r f'k{kd dh fu;qfDr j) fd;k tkrk gsa gLrk{kj gLrk{kj iapk;r lfpo eqf[k;k** 5. Being aggrieved by the aforesaid order, the petitioner Bhuvneshwar Kumar had moved this Court in CWJC No. 4632 of 2007 which was permitted to be withdrawn by an order dated 22.6.2011 with a liberty to the petitioner to move competent Tribunal in terms of Rule 18 of the aforesaid 2006 Rules. The Case No. 73 of 2011 was in fact instituted at the instance of the petitioner Bhuvneshwar Kumar wherein while assailing the order of termination dated 16.9.2006, he had also challenged reemployment of the petitioner Amrendra Kumar. The Tribunal, as noted above, had recommended the case of Bhuvneshwar Kumar by holding him to be still a Shiksha Mitra who could not have been absorbed on the post of Panchayat Teacher but, at the same time had also set aside the reappointment of the petitioner Amrendra Kumar. 6. Mr. Bindhyachal Singh, learned counsel for the petitioner Amrendra Kumar has submitted that the Tribunal has committed an error in terminating the services of the petitioner Amrendra Kumar, inasmuch as, the qualification of Intermediate was obtained by the petitioner Amrendra Kumar in the 2003-05 sessions and thus having passed the Intermediate Examination, he had become eligible to be reinstated on the post of Panchayat Shiksha Mitra. He has also submitted that as Bhuvneshwar Kumar came to be appointed in place of the petitioner Amrendra Kumar, the Panchayat had committed no error in removing him on 16.9.2006 while reappointing the petitioner Amrendra Kumar. 7. First of all, this Court would examine the plea of the petitioner Amrendra Kumar as with regard to his reinstatement/reappointment an expression used by the Panchayat in the order dated 16.9.2006. As noted above, the Panchayat Shiksha Mitra was to be appointed for the period of 11 months and could be granted only two further extensions i.e. for a total tenure of 33 months. The petitioner Amrendra Kumar, however, did not get his extension beyond 28.2.2005 and thus was out of service with effect from 1.3.2005. Such non-renewal of the extension of Amrendra Kumar was on the ground of government decision dated 11.8.2004 laying down a new guideline for appointment of Panchayat Shiksha Mitra wherein the additional qualification was fixed as Intermediate. The Panchayat, therefore, rightly had refused to renew the term of the petitioner Amrendra Kumar as on 1.3.2005 because he had not passed the Intermediate Examination. 8. The Panchayat, therefore, rightly had refused to renew the term of the petitioner Amrendra Kumar as on 1.3.2005 because he had not passed the Intermediate Examination. 8. On 1.7.2006 when the 2006 Rules was enforced, the post of Panchayat Shiksha Mitra was altogether abolished with the only rider under Rule 20(iii) which reads as follows:- 20- fujlu ,oa O;ko`fr%& ¼v½ bl fu;ekoyh ds izHkkoh gksus dh frfFk ls xzkeh.k {ks= esa izkjafHkd f’k{kdksa@’kkjhfjd f’k{kdksa@iapk;r f’k{kk fe= ds fu;kstu ls lacaf/kr iwoZ dh lHkh fu;ekoyh] ladYi] vkns’k] vuqns’k vkfn fujLr ekus tk;saxsA ¼c½ fdUrq bl fujlu ds gksrs gq, Hkh iwoZ ds fu;ekoyh] ladYi] vkns’k] vuqns’k vkfn ds rgr fu;qDr f’k{kdksa ds osrukfn ,oa lsok ‘krksZa ij bldk izHkko ugha iM+sxkA ¼l½ fdUrq iwoZ ds ifji=] vkns’k] vuqns’k ds vkyksd esa fu;ksftr ,oa dk;Zjr iapk;r f’k{kk fe= bl fu;ekoyh ds rgr iapk;r f’k{kd ds :i esa fu;ksftr ekus tk;sxsA** 9. From the underlined portion, it would be clear that only the working (Karyarat) Shiskha Mitra were held to have been absorbed on the post of Panchayat Shiksha Mitra. Admittedly, on 1.7.2006, the petitioner Amrendra Kumar was not continuing as a Panchayat Shiksha Mitra and as such, he was not absorbed as a Panchayat Teacher. 10. On the other hand, the petitioner Bhuvneshwar Kumar on account of his appointment made on 16.2.2006 after following the prescribed procedure of advertisement and selection as duly explained by him in the writ application and not controverted by the petitioner Amrendra Kumar in his counter affidavit filed in the case of Bhuvneshwar Kumar had got the benefit of becoming Panchayat Teacher by virtue of Rule 20(iii) of 2006 Rules. The Panchayat, therefore, had no jurisdiction to reengage/reappoint/reinstate the petitioner Amrendra Kumar on 16.9.2006, inasmuch as, there were only two provisions made in the 2006 Rules either for direct appointment of Panchayat Teacher in the manner prescribed in the 2006 rules or by way of absorption of the working Panchayat Shiksha Mitra as on 1.7.2006. 11. Mr. Singh appearing for the petitioner Amrendra Kumar does not question this settled position in law but, then, he relies on some communication of the District Magistrate contained in letter no. 1946 dated 7.6.2005. 11. Mr. Singh appearing for the petitioner Amrendra Kumar does not question this settled position in law but, then, he relies on some communication of the District Magistrate contained in letter no. 1946 dated 7.6.2005. This document, however, is not on record and in any event, even when in terms of the said order of the District Magistrate dated 7.6.2005 the petitioner Amrendra Kumar was not either appointed or made functional on the post of Panchayat Shiksha Mitra till 1.7.2006, he cannot justify the order of his reinstatement/reappointment dated 16.9.2006. In fact, it would appear that it was some letter of the B.D.O., Tekari contained in letter no. 559 dated 22.8.2006 directing the Panchayat that the petitioner Amrendra Kumar and one Ajay Kumar Pathak were reinstated/appointed on the post of Panchayat Teacher. As on 22.8.2006, the B.D.O. also had no jurisdiction to pass any order for reinstatement/ reengagement of a terminated Panchyat Shiksha Mitra as a Panchayat Teacher. 12. Thus, this Court would find that the order of the Panchayat dated 16.9.2006, so far it related to reinstatement/reappointment of the petitioner Amrendra Kumar, was wholly without jurisdiction and in fact bad in law in view of Rule 20(iii) of the 2006 Rules. The same order terminating the service of the petitioner Bhuvneshwar Kumar was also bad because the principle of natural justice was not followed and in fact, Bhuvneshwar Kumar was removed by the Panchayat even without a show-cause notice or affording opportunity of hearing to him. It has to be noted that as on 16.9.2006, the petitioner Bhuvneshwar Kumar, on account of his continuation of his engagement as Panchayat Shiksha Mitra with effect from 16.2.2006 for a period of eleven months, was continuing as a “Karyarat Shiksha Mitra” on 1.7.2006 and, therefore, had stood automatically absorbed on the post of Panchayat Teacher. 13. It is in this backdrop that this Court would find that the Tribunal has completely failed to consider the case of the petitioner Bhuvneshwar Kumar in proper perspective and its findings that the petitioner Bhuvneshwar Kumar was actually trying to become a Panchayat Shiksha Mitra would only reflect the complete non-application of mind of the Tribunal. 14. That would leave this Court to decide as to whether the decision of the Tribunal with regard to termination of the services of the petitioner Amrendra Kumar is correct? 15. 14. That would leave this Court to decide as to whether the decision of the Tribunal with regard to termination of the services of the petitioner Amrendra Kumar is correct? 15. The Tribunal while taking a decision for termination of the services of the petitioner Amrendra Kumar has primarily gone on the aspect that Mr. Kumar was a regular student of Intermediate in 2003-05 sessions and at the same time, he was claiming to have continued as a Panchayat Shiksha Mitra from 1.3.2003 to 1.3.2005 which was wholly improbable. Mr. Singh, however, has assailed the aforesaid findings by giving two explanations. Firstly he has submitted that the petitioner was doing his work as a Panchayat Shiksha Mitra and also attending his classes and in fact had appeared in the Intermediate examination after obtaining permission from the Headmaster of the school. He has also submitted that this aspect of the matter has been settled by an order of this Court dated 5.8.2010 in CWJC No. 5983 of 2010 (Gayatri Kumar Vs. The State of Bihar & Ors.) and its analogous cases wherein it has been held that once a person has acquired the qualification of Intermediate, the Panchayat cannot question the manner of acquiring of such qualification. 16. In the considered opinion of this Court, the Tribunal has not gone into the main issue and seems to have been unnecessarily swayed by the report of District Superintendent of Education contained in letter no. 16. In the considered opinion of this Court, the Tribunal has not gone into the main issue and seems to have been unnecessarily swayed by the report of District Superintendent of Education contained in letter no. 4253 dated 18.6.2007, which reads as follows:- ^^i=kad 4253 izs"kd %& Jh fot; dqekj >k ftyk f'k{kk v/kh{kd x;kA lsok esa eqf[k;k ,oa iapk;r lfpo xzke iapk;r :iliqj fVdkjh x;k] fnukad 18 twu 2007 fo"k; %& Jh vejsUnz dqekj firk Jh jkey[ku flag 'kkL=h] ia0 f’k0 mRØ0 e0 fo0 :iliqj dks fd;s x;s voS/k Hkqxrku ds laca/k esaA egk'k;] mi;qZDr fo"k; ds lanHkZ esa vaduh; gS fd xzke iapk;r :iliqj iz[kaM fVdkjh ds varxZr mRØ0 e0 fo0 :iliqj ds iapk;r f'k{kd ds :i esa fu;ksftr Jh vejsUnz dqekj firk Jh jkey[ku flag 'kkL=h dks vki yksxksa ds }kjk ekuns; dk Hkqxrku fd;k x;k gS tcfd Jh vejsUnz dqekj us 'kghn txnso Lekjd egkfo|ky;] dqFkkZ ¼vjoy½ ls l= 2003&05 esa fu;fer Nk= ds :i eas b.Vj dyk dh ijh{kk mrh.kZ dh gSA ,slh fLFkfr esa budk ,d gh le; esa vius fo|ky; ¼dk;Z LFky½ ,oa egkfo|ky; esa Hkh mifLFkr jguk iw.kZr% tkylkth dk ekeyk curk gSA vr,o buds izek.k&i=ksa ,oa vad i=ksa dh tkap fcgkj b.Vj dk¡mfUly ls djokosa] rFkk ;g lR; ik;k tkrk gS fd mUgs 2003&05 eas fu;fer Nk= ds :i esa b.VjfefM,V dyk dh ijh{kk mrh.kZrk izkIr dh gS buds mij rqajr izkFkfedh ntZ dj vxzsrj dkjZokbZ djsaA vU;Fkk voS/k Hkqxrku ds fy, vki ij dkjZokbZ dh tk;sxhA fo'oklHkktu ¼fot; dqekj >k½ ftyk f'k{kk v/kh{kd x;kA Kkikad 4253 @x;k fnukad 18 twu 2007** 17. As would be apparent, the District Superintendent of Education, Gaya was primarily concerned with regard to payment of emoluments as a Panchayat Shiksha Mitra to the petitioner Amrendra Kumar because he was of the view that Sri Kumar could not have been a regular student of intermediate of Sahid Jagdeo Smarak College, Kurtha (Arwal) in the 2003-05 session and at the same time also worked as a Panchayat Shiksha Mitra in the period 1.3.2003 to 1.3.2005. The District Superintendent of Education, Gaya, however, has asked the Panchayt Secretary and the Mukhia of the Panchayat to get the mark-sheet and the certificate of the petitioner Amrendra Kumar verified from the Bihar Intermediate Council to find out as to whether Sri Kumar had passed the examination as a regular student, action for recovery and criminal case should be taken failing which action could be taken against the Panchayat Secretary and Mukhia. Admittedly, no action was taken by the Panchayat Secretary and the Mukhia in view of the aforesaid letter of the District Superintendent of Education, Gaya dated 18.6.2007 against Sri Amrendra Kumar and he was happily continuing as a Panchayat Teacher till the date the impugned order was passed by the Tribunal holding his continuance to be bad. 18. Mr. Singh in this regard has also submitted that the Tribunal while relying on the order of the District Superintendent of Education, Gaya dated 18.6.2007 had not followed the principle of natural justice, inasmuch as, the copy of the said order dated 18.6.2007 was never given to the petitioner by the Tribunal or for this purpose by any one to him. This Court is not, however, inclined to accept such submission for a simple reason that the order of the District Superintendent of Education, Gaya first of all was by way of initiating an enquiry directing the Panchayat Secretary and the Mukhia to make verification from the Bihar Intermediate Council as to whether the petitioner Amrendra Kumar had passed the Intermediate Examination as a regular student and at the same time had worked and drawn salary as a Panchayat Shiksha Mitra in between 1.3.2003 to 1.3.2005. The order of the District Superintendent of Education, Gaya in fact was never acted upon by the Panchayat Secretary and the Mukhia, inasmuch as, even in presence of the said letter dated 18.6.2007, the petitioner Amrendra Kumar had continued in service till the impugned order passed by the Tribunal on 7.2.2012. The Tribunal in fact had discovered this letter from the records produced by the Panchayat and the order out of records that such order dated 18.6.2007 of the District Superintendent of Education was available in the file produced before it. The Tribunal in fact had discovered this letter from the records produced by the Panchayat and the order out of records that such order dated 18.6.2007 of the District Superintendent of Education was available in the file produced before it. No person can claim that the entire records and files produced before Tribunal should be made available to all the parties and at least on that score, the order of the Tribunal cannot be held to be bad much less in violation of the principle of natural justice. 19. Faced with this situation, Mr. Singh then had submitted that the impugned order passed by the Tribunal cannot be approved by the Court on a different ground and in this regard, he has placed reliance on the judgment of the Apex Court in the case of Mohinder Singh Gill & Anr. Vs. Chief Election Commissioner, New Delhi & Ors. reported in AIR 1978 SC 851 as also in the case of Union of India Vs. Ibrahim Uddin & Anr. reported in 2013(1) PLJR 48 (SC). 20. First of all, the Tribunal has not filed any counter affidavit before this Court nor has any of the respondents sought to justify the impugned order by taking different plea. The judgment in the case of Mohinder Singh Gill (supra) is only an authority that the reasons mentioned in the impugned order cannot be supplemented by counter affidavit. That does not include in any way taking away the power of the court or Tribunal to itself examine the correctness of the issue. Here in this case, when it is found that the order of reinstatement dated 16.9.2006 which was assailed by the petitioner Bhuvneshwar Kumar as he was terminated on the strength of the same order was itself unsustainable both on account of the petitioner Bhuvneshwar Kumar, already absorbed as a Panchayat Teacher, to have been removed by the Panchayat without given show-cause notice, it had to necessarily go into the question of reengagement/reappointment of the petitioner Amrendra Kumar. As the Rule 20(iii) of 2006 Rules itself does not permit reengagement/reappointment of a Panchayat Shiksha Mitra like the petitioner Amrendra Kumar who ceased to be a Panchayat Shiksha Mitra ever since 1.3.2005, it can definitely to hold that the order of the Tribunal so far it seeks to terminate the services of the petitioner Amrendra Kumar Singh is correct but on a different ground. 21. 21. It is not that this Court has to totally close its eyes towards the impossibility of the petitioner Amrendra Kumar being both regular student in 2003-05 while pursuing his Intermediate Course and at the same time working on day-to-day basis as Panchayat Shiksha Mitra between 1.3.2003 to 1.3.2005. That issue so far it relates to making payment of salary to a person like the petitioner Kumar by the Panchayat including its Mukhia and Panchayat Secretary can be gone into but this Court would not like the said matter to be perpetuated any further, inasmuch as, the petitioner Amrendra Kumar even otherwise would not be entitled to be absorbed as Panchayat Teacher on the ground of his ceasing to be Panchayat Shiksha Mitra after 1.3.2005. 22. There is yet another facet to the whole issue which would come in the way of the petitioner Amrendra Kumar, inasmuch as, it has not been denied that there was an advertisement on 4.2.2006 for that post of Panchayat Shiksha Mitra which was held by him vide Annexure-1 to the writ application and Bhuvneshwar Kumar on the basis of the same and after undergoing the selection process, a decision was taken by the members of the Sukh Subidha Samti of the Gram Panchayat as also Vidyalaya Siksha Samiti for selecting and appointing the petitioner Bhuvneshwar Kumar as Panchayat Shiksha Mitra. These facts asserted by the petitioner Bhuvneshwar Kumar in the writ application in paragraph nos. 5 to 11 quoted herein below; “5. That subsequently the Mukhiya (respondent no.8) issued an advertisement inviting application for appointment of four Shiksha Mitra in his Panchayat vide his office order dated 04.02.2006 fixing 11.02.2006 as last date for submission of application. 6. That in pursuance of advertisement contained in annexure-1 the petitioner who was possessing requisite qualification including academic qualification as Intermediate and B.Com (Hons.), filed his application appending all requisite documents before Panchayat Secretary within the prescribed date fixed for the same. 7. That petitioner is by caste carpenter and passed Matriculation examination in 1988 from BSEB, Patna, I.A. from Bihar Intermediate Council in 1990, and B.Com (Hons) from Magadh University, Bodh Gaya in 1993. 8. 7. That petitioner is by caste carpenter and passed Matriculation examination in 1988 from BSEB, Patna, I.A. from Bihar Intermediate Council in 1990, and B.Com (Hons) from Magadh University, Bodh Gaya in 1993. 8. That on 13.02.2006 meeting of Sukh Suwidha Samiti (selection committee) of Gram Panchayat held in president-ship of Mukhiya in which after due consideration the petitioner was found fit and selected for the post of Panchayat Shiksha Mitra which can be made evident from minute book of Selection Samiti of Panchayat dated 13.02.2006. 9. That it is relevant to state that only nine candidates had filed their application forms in the Panchayat whose names were considered by the selection committee. 10. That from perusal of list of candidates it will be evident that Amarendra Kumar (respondent no.9 of CWJC No. 4632/07) had neither filed his application nor his name was considered by selection committee in its meeting held on 13.02.2006 because of the fact that he was not possessing requisite qualification and after appointment in place of petitioner his appointment is found forged and subsequently his appointment was terminated by the District Superintendent of Education and thereafter by the District Teacher Appellate Authority hence he has not been made party here. 11. That in pursuant to selection subsequently vide memo no. 01/06 dated 13.02.06 appointment letter issued to all selected candidates including petitioner as Panchayat Shiksha Mitra and was/is posted as upgraded Middle School, Rupaspur. Accordingly petitioner submitted his joining in the school on 16.02.06 and started discharging his duties best to the satisfaction of his immediate authorities.” have not been controverted by the petitioner Amrendra Kumar who has filed the counter affidavit in the case of the petitioner Bhuvneshwar Kumar. In fact in paragraph no.10 & 11 of the counter affidavit filed by the petitioner Amrendra Kumar in the case of Bhuvneshwar Kumar, it has been admitted by him to the following effect:- “10. That it is also pertinent to state here that during the aforesaid period, due to vacant the aforesaid posts of Shiksha Mitra, an advertisement was published in year 2006 on 4 posts as one post come as backlog and accordingly, the petitioner Bhuvneshwar Kumar under general Category and Sanjay Kumar under BC category (now died) and one Jugesh Das and Shashi Kumar were appointed under SC category on the post of Shiksha Mitra. 11. 11. That however, pursuant to the order of the District Magistrate, Gaya, the petitioner Bhuvneshwar Kumar general category, Sanjay Kumar under BC category were removed from their services and in their places, one Ajay Kumar Pathak and Amrendra Kumar (Petitioner) were appointed as panchayat teacher.” 23. Thus, once the post which was earlier occupied by Amrendra Kumar had already been filled up by way of appointment of the petitioner Bhuvneshwar Kumar, there was no question of the petitioner Amrendra Kumar to have reappointed/reinstated on 16.9.2006 specially when the specific statement of the petitioner Bhuvneshwar Kumar in paragraph no.10 of the writ application had not been controverted that the petitioner Amrendra Kumar did not file his application to the advertisement published on 4.3.2006. It has to be noted that the petitioner Amrendra Kumar had already passed the Intermediate and was having experience of two terms of the Panchayat shiksha Mitra and it was his post which was sought to be filled up by way of fresh advertisement. 24. In that view of the matter, once the petitioner Bhuvneshwar Kumar on the basis of the advertisement followed by selection was appointed, he could not have removed for reinstating/reappointing the petitioner Amrendra Kumar who, as noted above, having ceased to be a Panchayat Shiksha Mitra ever since 1.3.2005, was ineligible to be absorbed on the post of Panchayat Teacher with effect from 1.7.2006. 25. This Court, however, also must take into notice one important submission of Mr. Bindhyachal Singh, learned counsel for Amrendra Kumar that as on 1.3.2005, when the Panchayat had sought to renew the term of two Panchayat Shiskha Mitra, namely, Ravi Shankar Kumar and Parshuram Kumar and had not renewed the term of the petitioner Amrendra Kumar a discrimination was caused and practiced. This Court can also not accept this plea, inasmuch as, there is nothing on record to show that Ravi Shankar Kumar and Parsuram Kumar were not holding the qualification of Intermediate unlike the petitioner who had not passed the Intermediate Examination as on 1.3.2005. In fact, the document which has been produced by way of Annexure-12 would go to show that on 1.2.2005, the Panchayat had sought to renew the term of Ravi Sankar Kumar and Parsuram Kumar while it had refused to do so in the case of the petitioner Amrendra Kumar as he was not an Intermediate. In fact, the document which has been produced by way of Annexure-12 would go to show that on 1.2.2005, the Panchayat had sought to renew the term of Ravi Sankar Kumar and Parsuram Kumar while it had refused to do so in the case of the petitioner Amrendra Kumar as he was not an Intermediate. Thus, the plea of discrimination also has no merit. 26. Mr. Singh had, in order to save the appointment of the petitioner Amrendra Kumar, had taken yet another plea that the order of reinstatement as Panchayat Shiksha Mitra of the petitioner Amrendra Kumar after acquiring his qualification of the Intermediate could not be passed by the Panchayat on the ground of enforcement of moral code of conduct due to election. In this regard, he has placed reliance on the letter of the Director, Primary Education dated 8.8.2006. In the considered opinion of this Court, that order dated 8.8.2006 also in no way would come to the rescue of the petitioner Amrendra Kumar, inasmuch as, the same reads as follows:- ^^i=kad 7@fu0&3&02@06 1219 fcgkj ljdkj] ekuo lalk/ku fodkl foHkkx izs"kd %& Jh vkj0 ,l0 flag] funs'kd] izkFkfed f'k{kkA lsok esa lHkh ftyk f'k{kk v/kh{kdA iVuk] fnukad 8 vxLr] 2006 fo"k; %& iapk;r f'k{kk fe= dk 01-07-2006 ls iapk;r f'k{kd ds :i esa lek;kstu ds lEcU/k esaA egk'k;] mi;qZDr ds lEcU/k esa dguk gS fd fcgkj iapk;r izkjfEHkd f'k{kd ¼fu;kstu ,oa lsok 'kÙkZ½ fu;ekoyh] 2006 ds vuqlkj fu;ksftr ,oa dk;Zjr iapk;r f'k{kk fe=ksa dks fnukad& 01-07-2006 ls iapk;r f'k{kk fe= ds :i esa fu;skftr ekuk x;k gSA bl lEcU/k esa Li"V djuk gS fd fof/kor :i ls fu;ksftr psjks iapk;r f'k{kk fe= ftudk vof/k foLrkj iapk;r pquko ds nkSjku vkn'kZ vkpkj lafgrk ykxw gksus ds dkj.k ugh gks ik;k Fkk fdUrq vxj os dk;Zjr jgs gS rks mUgsa fu;ksftr ,oa dk;Zjr ekuk tk;sxk rFkk os fcgkj iapk;r izkfEHkd f'k{kd ¼fu;kstu ,oa lsok 'kÙkZ½ fu;ekoyh] 2006 ds vUrxZr fnukad& 01-07-2006 ls iapk;r f'k{kd ds :i esa fu;ksftr ekus tk;sxsA d`I;k bldh] lwpuk lHkh lEcfU/kr dks ns nh tk;A fo'oklHkktu ¼vkj0 ,l0 flag½ funs'kd] izkFkfed f'k{kkA Kki la[;k 1219 @iVuk] fnukad 8 vxLr] 2006** 27. From reading of the aforesaid order, it would be clear that it was meant only for such of the working Panchayat Shiksha Mitra whose order of extension could not be passed due to ongoing Panchayat election. From reading of the aforesaid order, it would be clear that it was meant only for such of the working Panchayat Shiksha Mitra whose order of extension could not be passed due to ongoing Panchayat election. The Panchayat election was held in the year 2006 but the petitioner Amrendra Kumar had already been removed in the year 2005 with effect from 1.3.2005 and, therefore, when there was no Panchayat election in the year 2005 and the petitioner Amrendra Kumar was not reinstated till 1.7.2006, he cannot take the help of the so-called moral code of conduct to be the reason for his deemed continuation. The touchstone of the Government instruction dated 8.8.2006 was the continuance of the person as a Panchayat Shiksha Mitra on 1.7.2006 and that could not have been fulfilled by the petitioner on the ground of his own admission that his term was never extended by the Panchayat after 1.3.2005 as is also clearly proven from his own document contained in Annexure-11 granting extension to five persons including the petitioner Amrendra Kumar only up to 28.2.2005 and extension of service of only two persons Ravi Shankar Kumar and Parsuram Kumar with effect from 1.3.2005 vide Annexure 12 to the supplementary affidavit. 28. In normal circumstances, this Court could have also acceded to the prayer of Mr. Bidhyachal Singh, learned counsel for the petitioner that even if the order of termination of service of the petitioner Amrendra Kumar is upheld, he should not be subjected to criminal prosecution as was directed in the letter of the District Superintendent of Education, Gaya dated 18.6.2007. There is, however a very disturbing feature which compels this Court to now direct the District Magistrate of Gaya district to examine the complicity of the Mukhia, Panchayat Secretary and the Headmaster in continuing the services of the petitioner Amrendra Kumar, inasmuch as, now the petitioner Amrendra Kumar himself has filed a copy of his application by way of Annexure-14 to the supplementary affidavit to suggest that he had obtained permission from the Headmaster of the Rupuspur school for appearing in the Intermediate Examination which was going to be held from 11.3.2005 to 23.3.2005. The question would be if the petitioner did not receive the extension of service beyond 1.3.2005, where was the occasion for him to obtain permission from the Headmaster and how could the Headmaster also give such permission on 10.3.2005? 29. The question would be if the petitioner did not receive the extension of service beyond 1.3.2005, where was the occasion for him to obtain permission from the Headmaster and how could the Headmaster also give such permission on 10.3.2005? 29. Thus, there is something more than what meets the eye and in fact it becomes very clear that District Superintendent of Education, Gaya had rightly directed the Panchayat Secretary and the Mukhia to enquire into the matter relating to the continuance of the petitioner Amrendra Kumar as Panchayat Shiksha Mitra on or after 1.3.2003 onwards while he was also a regular student of Intermediate course in Sahid Jagdeo Smarak College, Kurtha (Arwal). The District Magistrate, therefore, should call for the records including attendance register of Sahid Jagdeo Smarak College, Kurtha (Arwal) of 2003-04 session as also the attendance register of m0 e0 fo0 :iliqj] fVdkjh] mRrjh to find out as to whether it was possible for the petitioner Amendra Kumar to remain present at both the places, one where he was teaching the students and other where he has been taught as a student. If the District Magistrate, Gaya would find that the continuation and payment of salary to the petitioner as Panchayat Shiksha Mitra was made in the relevant period in connivance of the Mukhia and Panchaayt Secretary as also the Headmaster who have conveniently ignored the order of the District Superintendent of Education, Gaya dated 18.6.2007 till date, he would direct for lodging First Information Report against all erring persons including the petitioner for defrauding the government exchequer. If on the other hand, the District Magistrate of Gaya district would find that it was possible for the petitioner Amrendra Kumar to also attend the classes of his Intermediate course as a regular student in Sahid Jagdeo Smarak College, Kurtha (Arwal) and at the same time also remain present on duty as a Panchayat Shiksha Mitra between 1.3.2003 to 28.2.2005, he would drop the matter as with regard to the proposed criminal action against the petitioner and others while doing so. It will be open for the District Magistrate to also verify the content of the letter no. It will be open for the District Magistrate to also verify the content of the letter no. 1946 dated 7.6.2005 to find out as to whether any direction was given by him for appointing/reinstating/reappointing the petitioner Amrendra Kumar on the post of Panchayat Shiksha Mitra specially when the result of the Intermediate Examination of petitioner Amrendra Kumar was said to have been published only on 7.6.2005 itself. 30. While directing the District Magistrate, Gaya to hold such enquiry, this Court is conscious of the order passed by the learned single Judge on 5.8.2010 in the case of Gayatri Kumari (supra) but then the issue in hand is not recognition of degree of the petitioner for his passing the Intermediate Examination rather the issue is of defrauding Government exchequer by remaining present at two places. In fact, it is not that the Intermediate qualification of the petitioner has been de-recognized by the authorities as was the issue in the case of Gayatri Kumari (supra) wherein it was held as follows:- “The first thing that the Court notices is that Government required the Shiksha Mitra/Panchayat Teacher to enhance their educational qualification. That was the object of the exercise. It is not disputed that the petitioners have enhanced their educational qualification accordingly. It is also not in dispute that the marksheet and the passing certificate granted by the Bihar Intermediate Education Council are genuine and not forged or fraudulent. Once the Bihar Intermediate Education Council recognizes the academic standard of the petitioners and grants the certificate then, in my view, it does not lie upon the authorities not to recognise the same. The Bihar Intermediate Education Council is an autonomous statutory body and having granted the certificate, it is they who can cancel it and no other authority, at least in the State of Bihar, can ignore the same or take away its efficacy in any manner. For the reasons aforesaid, the decision of the District Superintendent of Education, Nawada in treating the same to be invalid for the purposes of continuing in service cannot be sustained and, as such, the impugned order dated 15th October, 2009 of the District Superintendent of Education, Nawada is set aside. The inevitable consequence thereof would be that the termination of the petitioner’s service as Panchayat Teachers would consequently be held to be bad and ineffectual. The inevitable consequence thereof would be that the termination of the petitioner’s service as Panchayat Teachers would consequently be held to be bad and ineffectual. Petitioners would be deemed to be continuing in service validly for all purposes.” 31. From the aforesaid extracted portion of the order, it would be clear that in Nawada district, the qualification of Intermediate required was sought to be de-recognized under the order of the District Superintendent of Education and this Court would find that once the Intermediate Council has given such qualification/degree, the same could not have been questioned by the District Superintendent of Education, Nawada. That however is not the issue over here because if the petitioner has drawn salary as Panchayat Shiksha Mitra by showing him to be present in the school and at the same time he has also remained present as a regular student in 2003-05 session in Sahid Jagdeo Smarak College, Kurtha (Arwal) and has also gone to justify his appearing in Intermediate Examination after obtaining permission of the Headmaster as on 10.3.2005 when he was not even in service of the school, there appears to be something fishy for which the District Superintendent of Education, Gaya in his letter no. 4253 dated 18.6.2007 had directed the Mukhia and Panchayat Secretary to hold an enquiry after getting the matter verified from Bihar Intermediate Examination Council. 32. In the result the impugned order dated 7.12.2012 passed by the Tribunal so far it relates to petitioner Bhuvneshwar Kumar is set aside and CWJC No. 4853 of 2012 is allowed and petitioner Bhuvneshwar Kumar is directed to be reinstated in service whereas the same order of the Tribunal dated 7.12.2012 so far it relates to petitioner Amrendra Kumar is affirmed and the writ application CWJC No. 4226 of 2012 of the petitioner Amrendra Kumar is accordingly dismissed. The interim order passed in CWJC No. 4226 of 2012 is hereby vacated. 33. Let a copy of this judgment be sent to District Magistrate, Gaya for its strict compliance.