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2013 DIGILAW 287 (PAT)

Akhilesh Kumar v. State of Bihar

2013-03-01

AHSANUDDIN AMANULLAH, R.M.DOSHIT

body2013
ORDER (Per: HONOURABLE THE CHIEF JUSTICE) Re. Interlocutory Application No. 4351 of 2012. The delay of 13 days occurred in filing the Letters Patent Appeal is condoned. 2. Interlocutory Application stands disposed of. Re. Letters Patent Appeal No. 967 of 2012. 3. Feeling aggrieved by the judgment and order dated 21st February 2012 passed by the learned single Judge in CWJC No. 8048 of 2009, the writ petitioner has preferred this Appeal under Clause 10 of the Letters Patent. 4. It appears that pursuant to the 2005 selection, the petitioner came to be selected and appointed as Panchayat Shiksha Mitra under the Gram Panchayat Gonahi, Block – Patahi, District – East Champaran under the then scheme of Panchayat Shiksha Mitra. Pursuant to the abolition of the cadre of Panchayat Shiksha Mitra and by operation of Rule 20(iii) of the Bihar Panchayat Elementary Teacher (Employment and Service Conditions) Rules, 2006, the appellant came to be absorbed as Panchayat Teacher under the Gram Panchayat Gonahi. Since his absorption as Panchayat Teacher, his appointment as Panchayat Shiksha Mitra was questioned by the respondent no. 9 before this Court in CWJC No. 2050 of 2009. Under order dated 11th February 2009 made by the learned single Judge (Coram: Ajay Kumari Tripathi, J.), the matter was referred to the Block Development Officer, Patahi with a direction to him to verify the allegation made by the respondent no. 9, to record the finding and to issue necessary appropriate directions. 5. Pursuant to the said direction, the Block Development Officer, after perusal of the records, made a report on 5th June 2009. According to the said report, the respondent no. 9 being a member of the Extremely Backward Class, he should have been selected and appointed in place of the appellant. Pursuant to the said finding, the Block Development Officer cancelled the appointment of the appellant as Panchayat Shiksha Mitra and issued direction to the Mukhiya of the Gram Panchayat to appoint the respondent no. 9 as Panchayat Teacher in place of the appellant. 6. Feeling aggrieved, the appellant approached this Court under Article 226 of the Constitution in above CWJC No. 8048 of 2009. The learned single Judge has dismissed the Writ Petition. The learned single Judge was pleased to hold that the respondent no. 9 as Panchayat Teacher in place of the appellant. 6. Feeling aggrieved, the appellant approached this Court under Article 226 of the Constitution in above CWJC No. 8048 of 2009. The learned single Judge has dismissed the Writ Petition. The learned single Judge was pleased to hold that the respondent no. 9, in his application, did mention that he belonged to “Jolaha” (Muslim community) and that he was not required to disclose whether “Jolaha” (Muslim community) was classified as a reserved category. The learned single Judge upheld the cancellation of the appointment of the appellant. However, in respect of the respondent no. 9, the order of the Block Development Officer was modified to the extent that the resulting vacancy in the cadre of Panchayat Teacher should be filled in afresh. Therefore, this Appeal. 7. We have perused the record and also the copy of the caste certificate produced by the respondent no. 9 along with his application. The respondent no. 9 had produced a caste certificate dated 9th September 1993 declaring that the respondent no. 9 belonged to “Jolaha” (Muslim community). The said certificate did not disclose that “Jolaha” (Muslim Community) belonged to any of the reserved categories. In absence of a clear declaration that the respondent no. 9 belonged to any of the reserved categories, the Mukhiya of the Gram Panchayat could not have treated him as Extremely Backward Class community; nor was the Mukhiya supposed to search and find out in which category the said community was classified. 8. A bare perusal of the application (Annexure 5 to the Writ Petition) made by the respondent no. 9 and the caste certificate discloses that except mentioning the community, he did not clarify whether he belonged to any of the reserved categories although the application form categorically mentioned that the candidate claiming to be of a reserved category, was required to produce a certificate to that effect. 9. In absence of a specific claim made by the respondent no. 9 and a proper caste certificate produced by the respondent no. 9, he could not have been given the benefit of reservation in appointment. The grievance made by the respondent no. 9, therefore, was not justified. The same could not have been entertained or considered. 10. In our opinion, the learned single Judge has erred in overlooking the fact that the application made by the respondent no. 9, he could not have been given the benefit of reservation in appointment. The grievance made by the respondent no. 9, therefore, was not justified. The same could not have been entertained or considered. 10. In our opinion, the learned single Judge has erred in overlooking the fact that the application made by the respondent no. 9 did not disclose that he belonged to any of the reserved categories; nor did the caste certificate specifically referred to any reserved category. 11. For the aforesaid reasons, Appeal is allowed. The impugned judgment and order dated 21st February 2012 made by the learned single Judge in CWJC No. 8048 of 2009 is set aside. 12. CWJC No. 8048 of 2009 is allowed. The order dated 5th June 2009 made by the Block Development Officer is quashed and set aside. 13. It is directed that the appellant, if removed from service pursuant to the direction dated 5th June 2009 issued by the Block Development Officer or pursuant to the order of the learned single Judge, be restored and reinstated in service as Panchayat Teacher as early as possible but not beyond 1st April 2013. The appellant will not be entitled to salary / honorarium from the date of his removal from service till he is reinstated in service on the principle of “No Work No Pay”. 14. In the event, the appellant is not reinstated in service by 1st April 2013; he will be deemed to have been reinstated in service from 1st April 2013 and will be entitled to salary / honorarium commencing from 1st April 2013. The interregnum period be treated as the period on duty for all other service benefits. 15. The Registry will send copy of this order to the respondent nos. 3 to 7 forthwith.