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2018 DIGILAW 1505 (PAT)

Ishwar Chandra Singh v. State of Bihar

2018-09-17

MADHURESH PRASAD, RAVI RANJAN

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JUDGMENT : RAVI RANJAN, J. 1. Heard the learned Counsel for the parties. 2. This appeal is directed against the order dated 10.1.2013 passed by the learned Single Judge in CWJC No. 10419 of 2010, by which the writ petition was allowed and the decision taken by the District Teachers Appointment Appellate Authority (hereinafter referred to as 'the Appellate Authority') was set aside. 3. The writ petitioner respondent No. 7 claimed in the writ petition that she applied for appointment on the post of Music Teacher in Nagar Nikay Madhyamik Music School, Bhabua, at the time of first phase teachers appointment on 19.8.2006. Thereafter counselling was also held on 15.1.2007 and securing 66.92 % of Medha Marks she was appointed on the post at State Aided Girls High School, Bhabua vide Annexure 4 communicated vide Memo No. 127 dated 25.4.2007. She joined and started performing her duties. Suddenly after about more than a year, she got a notice dated 29.12.2008 from the Appellate Authority, Kaimur in Case No. 3 of 2008, instituted by the appellant Ishwar Chand Singh, against her appointment. 4. The Appellate Authority by its decision, dated 13.11.2009, as contained in Annexure 8, held that the calculation of marks was wrongly done at the time of counselling and it had given a calculation of its own and on the basis of that it has held that the merit marks (Medha Ank) of the appellant Ishwar Chand Singh would be 69.14 and, accordingly, since it is more than 66.42 of the writ petitioner, recommendation was made that he should have been appointed in place of the writ petitioner. Accordingly, the appointment of the writ petitioner was cancelled and direction was given to appoint the appellant. 5. The learned Single Judge, while considering the writ petition questioning the so called Music degree which the respondent appellant Ishwar Chand Singh was possessing from Prayag Sangeet Samitee, Allahabad, directed to produce any notification that the same was a valid degree recognised by the State of Bihar which would begetting him as Nagar Nikai Teacher and since the same could not be produced the learned Single Judge held that no benefit would accrue in favour of the private respondent, who is appellant here, because he possesses some kind of fanciful degree from the Institution which has no valid recognition. Thus, the order passed by the Appellate Authority was set aside, having held that its reasoning and findings were based on misplaced assumption with regard to validity of the degree of the private respondent. 6. This led to preferring this appeal by respondent No. 7. In the present proceeding a coordinate Bench of this Court noticed in detail the respective stand taken by the parties with respect to the validity of 'Sangeet Prabhakar' degree issued in favour of the appellant by Prayag Sangeet Samiti, Allahabad. 7. The case of the appellant has been noticed in the aforesaid order dated 23.7.2018 that the S.C. Agrawal (Retd) Commission accepted the 'Sangeet Prabhakar' degree issued by the Prayag Sangeet Samiti, Allahabad and passed necessary orders in several matters regarding regularisation of the teachers. That report was accepted by the Hon'ble Supreme Court also in its judgment in State of Bihar vs. Bihar Rajya M.S.E.S.K.K. Mahasangh and Others., (2005) 1 PLJR 464(SC)., while accepting the report of the Agrawal Commission. In such a situation, it was urged on behalf of the appellant that non consideration of his degree would be against the decision of the Apex Court also. 8. The Division Bench, upon considering such submission raised on behalf of the appellant, reserving opinion on the intra-party contest at that point of time, directed the Principal Secretary, Education Department, to file affidavit on the issue whether or not in view of the Supreme Court's judgment in Bihar Rajya M.S.E.S.K.K. Mahasangh, the 'Sangeet Prabhakar' degree awarded by Prayag Sangeet Samiti Allahabad, would be treating it to be graduate qualification in Music or not and whether any decision has been taken in this regard at the level of the State Government. In response to aforesaid query of the Division Bench, the State Government has come up with Annexure R/1 appended with the counter affidavit filed on 9.8.2018, which is a letter written by the Principal Secretary, Department of Education, addressed to all the Municipal Commissioner, Municipal Corporation, Deputy Development Commissioner -cum- Chief Executive Officer and Executive Officers, Nagar Parishad/Nagar Panchayat, communicating the decision of the State Government that 'Sangeet Prabhakar' (sixth year) degree issued by the Prayag Sangeet Samiti, Allahabad, if it is for full marks of 500, would be considered as a degree equivalent to Graduation in Music. 9. 9. All these affidavits having been filed now, it is being urged on behalf of the private respondent that the letter is talking about its prospective application, so such recognition should be considered from the date of issuance i.e. 20.8.2015. Secondly, it is submitted that since the appellant is not having a degree of full marks of 500 rather is having degree of 300 marks, his degree cannot be said to have been recognised by the State of Bihar. 10. Per contra, learned Counsel for the appellant has submitted that this is a printing mistake in the letter, as if it is compared with the graduation degree of Pracheen Kala Kendra, Chandigarh for the purpose of granting equivalence to graduation only 300 marks has been recorded. On such assertion having been made, we could have directed the State Government to clarify the issue, but on deeper scrutiny of the materials on record it appears that the merit marks of the appellant has been calculated to 69.14, as per calculation by the Appellate Authority, as a result of addition of additional 5 marks for obtaining honours degree, which is being questioned by the writ petitioner respondent on the ground that since the appellant has not obtained honours marks and is not having Sangeet Prabhakar' degree with honours, such additional 5 marks cannot be added to his merit. This limb of argument advanced on behalf of the writ petitioner-respondent led us to examine the relevant Rules itself, which has been appended with the writ petition at Annexure 3. The basic qualification for appointment as Music/Fine Arts Teacher has been provided under Rulwe 4 (vi) of the Bihar Nagar Nikai Madhyamik and Uchchatar Madhyamik Shikshak (Niyojan Awam Sewa Sarte) Niyamawali 2006 (hereinafter referred to as 'the Rules'). The aforesaid provision is extracted as under for better appreciation:- 4(iv). laxhr@yfyr dyk f'k{kd ds fy, %& ¼d½ fdlh ekU;rk izkIr fo'o fon;ky; vFkok ekU;rk izkIr cksMZ@laLFkk ls laxhr@yfyr dyk fo"k; esa Lukrd&fMxzh vFkok mldh led{k vgZrkA 11. From perusal of the aforesaid provision it would appear that basic qualification for appointment on the post of Teacher in Music/Fine Arts is obtaining Graduation degree or its equivalent in Music or Fine Arts whichever be the case. Under Rule 6(iv) the procedure for calculation of the merit marks i.e. Merdha Ank has been laid down. From perusal of the aforesaid provision it would appear that basic qualification for appointment on the post of Teacher in Music/Fine Arts is obtaining Graduation degree or its equivalent in Music or Fine Arts whichever be the case. Under Rule 6(iv) the procedure for calculation of the merit marks i.e. Merdha Ank has been laid down. For better appreciation that provision is also quoted as under:- 6(iv) uxj ek/;fed f'k{kd ds fy, iSuy fuEu :is.k es?kk vad ds vk/kkj ij izf'kf{kr ,oa vizf'kf{kr vH;FkhZ dk vyx&vyx rS;kj fd;k tk,xk& 1- ewy ;ksX;rk ¼Lukrd½ dk vf/kHkkj vad vFkok Lukrd izfr”Bk dk vf/kHkkj vad izkIrkad dk izfr'kr 2- mPprj ek/;fed ijh{kk vFkok b.VjehfM,V ijh{kk dk vf/kHkkj vad izkIrkad dk izfr'kr 3- Ekk/;fed ijh{kk dk vf/kHkkj vad izkIrkad dk izfr'kr 4- chŒ,MŒ dk vf/kHkkj vad izkIrakd dk izfr'kr mijksDr lHkh izkIrkad dk izfr'kr dks tksM+dj mlesa pkj ls Hkkx nsus ij tks izfr'kr izkIr gksxk] ;g ml vH;FkhZ dk es/kk vad gksxkA vizf'kf{kr vH;FkhZ ds fy, izkIrkad ds izfr'kr dks tksM+dj rFkk rhu ls Hkkx nsdj es/kk vad fudkyk tk;sxkA ijUrq Lukrd izfr"Bk ;ksX;rk/kkjh dks ikWp vad vfrfjDr tksM+k tk,xkA leku vad izkIr gksus ij ftudh tUe frfFk igys gksxh iSuy esa mij j[kk tk,xkA leku vad ,oa leku tUe frfFk gksus ij Mªk vkWQ ykSV ds nokjk iSuy esa mij lhu fu/kkZfjr gksxkA 12. From the aforesaid provision it would appear that percentage of total marks obtained either in basic qualification graduation or graduation with honours has to be added, thereafter percentage of Intermediate marks has to be added, thereafter percentage of Matriculation marks has to be added and lastly the percentage of marks obtained in B.Ed. Examination has also to be added. Aggregate of these marks has to be declared as Medha Ank or merit marks of the concerned candidate. 13. Now one question would crop up, if in the said process for calculation of merit marks the basic qualification of Graduation and of Graduation with Honours is to be considered as equivalent then whether this would not be treated to be an anomaly in as much as un-equals would be treated as equals. But the framer of the Rule have resolved this issue also, as stated underneath the aforesaid Rule that if a person has obtained a graduation degree with honours then five extra marks has to be added. 14. But the framer of the Rule have resolved this issue also, as stated underneath the aforesaid Rule that if a person has obtained a graduation degree with honours then five extra marks has to be added. 14. That being the situation, now it has to be seen whether the appellant is entitled for addition of that five marks or not, as he has claimed that he is having graduation degree without honours in Music. For availing the benefit of additional five marks he has brought on record another Graduation degree with Honours in Political Science. The relevant question for determination before us would be as to whether he was entitled to get five additional marks for obtaining Graduation with Honours in Political Science i.e. another subject than what is prescribed as basic qualification? 15. Rule 6(iv)(1) of the Rules contemplates the basic qualification to be Graduation simpliciter or Graduation with Honours. However, on this point, in the Rules no additional weightage seems to be contemplated for those having Honours in the basic qualification. It is this aspect which has been clarified in the note below the said Rules. In recognition of Honours degree weightage of additional five marks is contemplated. The basis qualification, as noticed above, has been provided in Rule 4(vi) as graduation in Music or Fine Arts for appointment in question. Therefore, irresistible conclusion is that additional five marks could be awarded to a candidate in view of his additional merit in terms of Honours in the subject which is required as per the basic qualification prescribed in the Rules. For the instant case being a degree/diploma in Music. Having considered the respective submissions made oh behalf of the parties as well as the State, we are of the view that the appellant would not be entitled for the additional five marks and the Appellate Authority has wrongly added it in favour of the appellant. The Rules clearly lay down that a person would get five additional marks for having obtained Graduation degree with Honours. The Rules clearly lay down that a person would get five additional marks for having obtained Graduation degree with Honours. That would definitely mean Honours in the subject in which he is seeking appointment and for that purpose the degree to be considered in accordance with Rule 4(vi), would be the qualification in the subject of Music itself since Rule 6(iv) also at serial No. (1) declares that Graduation degree or graduation with Honours would be the basic qualification taken for calculating the Medha Ank. Thus, in our view, by no stretch of imagination Honours degree obtained in some other subject can be considered for appointment as Music Teacher in view of the aforesaid provision of the concerned Rules. 16. Now if such additional five marks is deducted from the calculation done by the Appellate Authority then the Medha Ank (merit marks) of the appellant would come down to 66.14 which is below the merit marks of the writ petitioner respondent i.e. 66.42. In such a situation, in our view her appointment cannot be questioned. 17. Secondly the two orders dated 13.11.2009 passed by Member, District Teachers Appointment Appellate Authority, Kaimur at Bhabua (Annexure 8) as also the order dated 27.4.2010 passed by President of District Teacher Appointment Appellate Authority, Kaimur at Bhabua (Annexure 11) in Appeal No. 3 of 2008 are hereby quashed. As a condequence thereto the order dated 4.5.2010 of the Sub-divisional Education Officer, Bhabua is also quashed. 18. In the result, this appeal is dismissed and the writ petition stands allowed. However, there would be no order as to cost.