Patna High Court
Case Details
Patna High Court CWJC No.4910 of 2011 (4) dt.09-09-2013 IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.4910 of 2011 ====================================================== Pushpa Kumari D/O Balmiki Prasad Singh Resident of Village Walipur, P.S. Piparia, District Lakhisarai. .... .... Petitioner/s Versus 1. The State Of Bihar Through The Principal Secretary Human Resources Department, Government Of Bihar, New Secretariat, Patna. 2. The Director Primary Education, Government of Bihar, Patna. 3. The District Teacher Employment Appellate Authority, Lakhisarai. 4. The District Superintendent of Educatio, Lakhisarai. 5. The District Magistrate, Lakhisarai. 6. The Block Development Officer, Piparia, Lakhisarai. 7. The Panchayat Secretary, Gram Panchayat Walipur Piparia Block, Lakhisarai. 8. The Mukhiya, Panchayat Raj, Gram Panchayat Walipur, Piparia Block, Lakhisarai. 9. Shashi Kumari W/O Subodh Kumar Sharma Resident of Village Walipur (South Tola), P.S. Piparia, District Lakhisarai. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Mukesh Kumar For the Respondent/s : Mr. Prashant Pratap GP 6 ====================================================== CORAM: HONOURABLE MR. JUSTICE SHAILESH KUMAR SINHA ORAL ORDER 4 09-09-2013 Heard learned counsels for the petitioner, the State and respondent no. 9. Petitioner is aggrieved by the order dated 10th February, 2011 passed by the District Teachers Employment Appellate Authority, Lakhisarai in Appeal No. 72 of 2010-11 whereby the appointment of the petitioner as Panchayat Teacher was held to be illegal and the Employment Unit of the Gram Panchayat Walipur was directed to take steps for cancelling the appointment of the petitioner. It is submitted on behalf of the petitioner that
Facts
Patna High Court CWJC No.4910 of 2011 (4) dt.09-09-2013 petitioner was appointed as Panchayat Shiksha Mitra for a contractual period of eleven months as per memo no. 845 dated 7th April, 2005 and she completed her tenure on 30th April, 2006. Thereafter petitioner was again engaged on the post of Panchayat Shiksha Mitra for eleven months with effect from 1st May, 2006. Later, on coming into force of the statutory rule namely Primary Teachers (Employment and Terms & Conditions) Rules, 2006 petitioner who was actually working as Panchayat Shiksha Mitra as on 1st July, 2006 the appointed date under the aforesaid Rule she was absorbed as Panchayat Teacher and acquired the statutory status as such. The appointment of the petitioner as Panchayat Teacher is not set aside for any omission or commission on her part in discharge of her duty as Panchayat Teacher, but on account of the alleged irregularity in the engagement of petitioner as Panchayat Shiksha Mitra of the year 2005 allegedly on the ground that the case of respondent no. 9 was not considered in her appointment as Shiksha Mitra. It has been contended on behalf of the petitioner that as a matter of fact the respondent no. 9 did not make any application for her appointment as Shiksha Mitra and since petitioner was the candidate in the said exercise having highest marks in the qualifying examination for such appointment. Accordingly, petitioner was appointed.
Legal Reasoning
there is no dispute with respect to her engagement in the year 2006. It is accordingly submitted that the order declaring the petitioner’s appointment as Panchayat Teacher w.e.f. 1st of July, 2006 on the alleged ground of irregularity of the year 2005 which did not existed after completing the tenure of eleven months and since there is no dispute with respect to engagement of petitioner as Panchayat Shiksha Mitra w.e.f. 1st of April, 2006 her appointment as Panchayat Teacher w.e.f. 1st July, 2006 cannot be the subject matter. Accordingly, the order holding the appointment of the petitioner as Panchayat Teacher as illegal deserves to be quashed. On the other hand, learned counsel for respondent no. 9 submits that since there was irregularity in the engagement of petitioner as Panchayat Shiksha Mitra in the year 2005 ignoring the claim of this respondent, the renewal/fresh appointment of the petitioner w.e.f. 1st April, 2006 is equally illegal even though the tenure of engagement of Shiksha Mitra of the year 2005 expired on 30th April, 2006. learned counsel further submits that even if respondent could not be appointed as Panchayat Teacher after coming into force of the statutory rule on 1st July, 2006 the appointment of the Patna High Court CWJC No.4910 of 2011 (4) dt.09-09-2013 petitioner was rightly held illegal and directed the concerned employment unit for taking steps to cancel the appointment. Learned counsel further submits that this respondent has filed a separate writ application vide CWJC No. 1287 of 2012 against the part of the impugned order whereby the appellate authority has held that even if the appointment of the petitioner of this case is held as illegal this respondent cannot be appointed as Panchayat Teacher since in terms of the Govt. letter no. 108 dated 01.02.2007 issued by the Human Resources Development Department, Govt. of Bihar that no person can be appointed as Panchayat Shiksha Mitra after coming into force of the aforesaid statutory rule. The said writ application is still pending awaiting result of LPA No. 1569 of 2010 wherein the issue is as to whether the post of Panchayat Shiksha Mitra still subsists after coming into force of the statutory rule and any person who is not illegally appointed can be appointed on the post of Shiksha Mitra or not. Learned Assistant Counsel to Govt. Pleader No. 6 appearing for the State supports the impugned order. Considering the submissions of the parties, the issue in this case is not as to whether the post of Shiksha Mitra after coming into force of the statutory rule subsist or not, rather the issue is the appointment of petitioner as Panchayat Teacher w.e.f. 1st of July, 2006 on basis of her engagement as Shiksha Mitra for eleven months on 1st May, 2006. The Patna High Court CWJC No.4910 of 2011 (4) dt.09-09-2013 appointment of petitioner as Panchayat Teacher is not on account of her engagement as Shiksha Mitra of the year 2005. The tenure of engagement of Shiksha Mitra of the year 2005 against which the respondent no. 9 has grievance expired on 30th April, 2006. The appointment of petitioner is not on basis of her engagement of Shiksha Mitra in the year 2005 but was on basis of her engagement as Shiksha Mitra in the year 2006 w.e.f. 1st May, 2006 and having found that he was actually working on the appointed date i.e. 1st July, 2006, she was absorbed as Panchayat Teacher. In other words, the dispute if any is with respect to engagement of Shiksha Mitra of the year 2005 and not 2006, the basis for such appointment.
Arguments
Notwithstanding the above, learned counsel submits that appointment of petitioner as Panchayat Teacher is not on Patna High Court CWJC No.4910 of 2011 (4) dt.09-09-2013 basis of her engagement as Panchayat Shiksha Mitra in the year 2005. The said engagement of the year 2005 was completed on 30th April, 2006 and admittedly she was again appointed as Panchayat Shiksha Mitra w.e.f. 01.05.2006 and
Decision
In view of the above, in my opinion, the order dated 10th February, 2011 passed by the District Teachers Employment Appellate Authority, Lakhisarai in Appeal No. 72 of 2010-11 declaring the appointment of the petitioner as Panchayat Teacher to be illegal on account of irregularities of the year 2005 cannot be sustained in law. It is accordingly quashed. With respect to respondent no. 9, I do not express any opinion since a separate writ application has been filed which is pending as noticed above. The writ application accordingly stands disposed of. Manish/- (Shailesh Kumar Sinha, J)