Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.19834 of 2011 ====================================================== Parmanand Kumar Son Of Sri Ram Chandra Mandal Resident Of Village : Baank, Gram Panchayat Baank, Block : Dandari, P.S. : Balia, District : Begusarai Versus .... .... Petitioner/s 1. The State Of Bihar Through District Magistrate, Begusarai 2. District Magistrate, Begusarai 3. District Program Officer, District Begusarai 4. Block Education Officer, Pandari Block, District : Begusarai 5. Mukhiya , Panchayat Raj, Baank, Dandari Block, P.S. : Balia, District : Begusarai 6. Panchayat Secretary, Panchayat Raj Baank, Dandari Block, P.S. : Balia, District : Begusarai 7. Dayaram Chourasia Son Of Sri Chandi Chourasia Resident Of Village : Baank, Block: Dandari, P.S : Balia, District : Begusarai .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Chittaranjan Sinha, Sr. Advocate Mr. Siddhartha Prasad, Advocate For the Private Respondent/s : Mr. Rajnikant Jha, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER 5 31-10-2013 The petitioner is aggrieved by the order dated 25.10.2011 passed by the District Teachers Appointment Appellate Tribunal, Begusarai, in Case No. 1078 of 2009 whereby the appointment of the petitioner on the post of Panchayat Shiksha Mitra (PSM) made in the year 2005 and his subsequent absorption as Panchayat Teacher (PT) has been cancelled and respondent No. 7 has been directed to be appointed on the post of PT. The petitioner has also prayed for consequential relief(s). 2. Relevant facts and circumstances culled out in the present writ petition are as follows :- Gram Panchayat Raj, Baank in the district of Begusarai initiated the process for engagement of Patna High Court CWJC No.19834 of 2011 (5) dt.31-10-2013 2/9 PSM as per the relevant guidelines governing the case of such selection. The petitioner as well as respondent No. 7 both belonging to backward class category applied. Since there was some defect in the certificate or of the status of respondent No. 7 as backward class, he was treated as a general candidate. The selection committee approved the
Decision
selection of the writ petitioner as PSM on 15.5.2005 against the post allocated for backward class candidate. Let it be recorded that in terms of percentage of marks obtained at the Intermediate, the respondent No. 7 possessed higher percentage of marks than the writ petitioner. Upon having been selected, the petitioner joined the concerned school on 17.5.2005. Under the relevant guideline/rule, such appointment/engagement was made on contract basis for eleven months which was renewable/extendable. The petitioner‟s engagement as PSM having been found satisfactory was extended by another eleven months on 16.4.2006. In the meantime, the Government formulated a rule called the Bihar Panchayat Elementary Teachers (Employment and Service Conditions) Rules, 2006 (for short „the Rule‟) effective from 1.7.2006. The post of PSM was converted as the post of PT. All those incumbents who were serving as PSM on 1.7.2006 stood absorbed by fiction of law (referred Rule 20(iii) of the Rules) as PT. 3. Having acquiesced in his non-selection, the Patna High Court CWJC No.19834 of 2011 (5) dt.31-10-2013 3/9 respondent No. 7 did not raise any objection thereagainst. Once the Rule was made effective and the status of PSM changed as PT having a regular scale of pay, the respondent No. 7 raised an objection against rejection of his candidature for the post of PSM for the first time on 22.12.2006 by filing an application before the District Magistrate, Begusarai. 4. It is to be noted here that after coming into the existence of the Rule any such objection was required to be filed within thirty days before the prescribed authority. It is further to be noted that by virtue of amendment in the Rule effective from 25.8.2008, the Tribunal was constituted in each district of the State for redressal of the grievances relating to appointment of teachers. It appears that in the meanwhile the respondent No. 7 had also filed an application on 18.11.2009 before the Tribunal constituted under the Rule giving rise to Case No. 1078 of 2009. On such application the Tribunal called for a report from the Block Education Officer, Dandari. The said authority submitted the enquiry report to the Tribunal on 28.4.2010 disclosing therein that the selection committee in its meeting dated 15.5.2005 had resolved that such candidates, who claimed to be a candidate belonging to reserved category but had not submitted their caste certificates, shall be treated as general category candidate. Since the respondent No. 7 had not submitted his caste certificate, he was treated as a general category candidate. The Tribunal after hearing the applicant (respondent No. 7) by order dated 15.3.2011 (Annexure-5) rejected the said application on the ground inter alia that such application was filed belatedly and no enquiry with regard to the engagement/appointment on the post of PSM can be made in the light of the provisions of the Rule. The applicant Patna High Court CWJC No.19834 of 2011 (5) dt.31-10-2013 4/9 (respondent No. 7) had raised an issue relating to engagement/appointment of the petitioner on the post of PSM. In the pending writ petition the aforesaid order dated 15.3.2011 passed by the Tribunal was brought on record. This Court having considered the submissions of the petitioner (respondent No. 7) allowed the writ petition on 19.7. 2011 (Annexure-6) without affording opportunity to the petitioner by issuing a notice. The order dated 15.3.2011 passed by the Tribunal was quashed and set aside and the matter was remitted back to the Tribunal for disposal of the matter afresh after giving opportunity of hearing to the petitioner and the private respondent. The Tribunal in the light of the said order of this Court reopened Case No. 1078 of 2009 and issued notice to the petitioner. After hearing the parties by an order dated 25.10.2011 allowed the application of the respondent No. 7, cancelled the appointment of the petitioner on the post of PSM making further declaration of absorption of the petitioner as PT as illegal. The Tribunal directed for appointment of respondent No. 7 straightaway on the post of PT. Aggrieved thereby the writ application has been filed. 5. Heard Mr. Chittaranjan Sinha, learned senior counsel for the petitioner and Mr. Rajnikant Jha, learned counsel for the private respondent. Parties have exchanged their pleadings. 6. Learned counsel for the petitioner submits that the order passed by the Tribunal is bad in law since as per the provisions of the Rule, the previous circular/guideline for engagement as PSM stood abolished after coming into force the Rule. Those who continued on the post of PSM on the date of coming into force of the Rule stood absorbed as PT. The Tribunal therefore had no jurisdiction to enquire into the correctness or Patna High Court CWJC No.19834 of 2011 (5) dt.31-10-2013 5/9 otherwise of the engagement/appointment of the petitioner as PSM and for that matter of the respondent No. 7 on the post of PSM. This Court in the case of Renu Kumari Pandey & Ors. Vrs. The State of Bihar and Ors. [ 2011(4) PLJR 297] as well as in the case of Saroj Kumar & Ors. Vrs. The State of Bihar & Ors. [2013(2) PLJR 897] have clarified the position in law. 7. The respondent on the contrary submitted that the Tribunal reconsidered the case of the petitioner in the light of the order dated 19.7. 2011 passed in C.W.J.C. No. 13577 of 2007 (Annexure-6). The Tribunal was merely executing the order of the Court and as such no fault could be found with the said order which was passed in the light of the order passed by this court in a proceeding between the parties. Such order having not been challenged continues to hold till date and the Tribunal rightly reopened the matter and passed the impugned order. 8. The contention of the petitioner is that after coming into the force of the Rule any issue relating to the appointment of PT could have been raised before the Tribunal after constitution in the year 2008. Before constitution of the Tribunal the matter could have been raised before the respondent-Block Development Officer. The Tribunal did not hold authority or jurisdiction to entertain, hear or decide the dispute relating to employment as PSM under the then prevalent resolutions/circulars/orders/instructions. Since by virtue of Clause (i) of Rule 20 of the Rules all earlier resolutions/orders/directions issued in respect of employment of PSM were repealed. The question, therefore, falls for consideration as to whether the Tribunal had the jurisdiction to entertain the dispute raised by the respondent in respect of employment/engagement of the writ Patna High Court CWJC No.19834 of 2011 (5) dt.31-10-2013 6/9 petitioner as PSM. The aforesaid question fell for consideration before a Division Bench of this Court in the case of Smt. Renu Kumari Pandey (supra). On an appraisal of the provisions contained in the Rules, the Division Bench in the said judgment at paragraph-18 thereof held as under :- “ Para-18- We may also note here that though the State Government framed a complete scheme for employment of Panchayat Shiksha Mitra at Gram Panchayat level in furtherance of its goal of “Education for All”, in none of the aforesaid Resolutions the Government had provided for an adjudicatory the State In other words, machinery. Government did not make any provision for redressal of grievance in respect of selection and employment of Panchayat Shiksha Mitra or their re-employment after the expiry of the contractual period. On perusal of the records of the above writ petitions, we find that in absence of such machinery, the aggrieved persons approached the authority whom such persons considered to be the competent/the convenient authority. In our opinion, in absence of powers expressly conferred upon any such authority the reports or the orders such authority are of no made by consequence. No relief can be granted on the basis of the finding recorded by such that authority. We may also point out Elementary Teachers Appellate Authority constituted under Rule 18 of the Rules, as amended by Bihar Panchayat Elementary Teacher Service Conditions) (Amendment) Rules, 2008 is empowered to entertain, hear and decide the appeals arising out of the employment of elementary teachers under the Rules. The said appellate authority has no jurisdiction to entertain, hear or decide the disputes relating to the employment of Panchayat Shiksha Mitra under the then prevalent Resolutions, Circulars, Orders, Instructions.” (Employment and Patna High Court CWJC No.19834 of 2011 (5) dt.31-10-2013 7/9 9. In the case of Saroj Kumar & Ors (supra) this Court held the similar view. 10. The aforesaid position in law has not been disputed by the respondent. It has, however, been submitted that an order was passed by a Bench of this Court in C.W.J.C. No. 13577 of 2007 (Annexure-6) directing the Tribunal to revive the complaint of the petitioner and decide the same on merit. While directing for revival and re-disposal of the complaint, this Court proceeded to issue further direction with regard to the issue(s) which was/were required to be considered by the Tribunal. In the light of the said order passed in a proceeding inter parties, the Tribunal was justified in re-hearing and re-disposal of the appeal or the complaint of the respondent No. 7. The Tribunal was only executing the order of this Court. The said order passed by this Court in C.W.J.C. No. 13577 of 2007 having not been challenged and set aside will continue to hold the field. Reliance in this regard has been placed on an order passed by this Court in the case of Akhilesh Kumar Sharma Vrs. The State of Bihar & Ors. [2013(3) PLJR 478]. The order passed by the Tribunal is only the consequential order. 11. Combating the said stand of the respondent, learned counsel for the petitioner has urged that the order of this Court in C.W.J.C. No. 13577 of 2007 was passed without affording any opportunity of hearing to the petitioner inasmuch as no notice of the application was issued to the petitioner, who was impleaded as party respondent therein. The said order would, therefore, not bind the petitioner. Even otherwise, the Tribunal may have been executing the order of this Court but when a challenge is made to Patna High Court CWJC No.19834 of 2011 (5) dt.31-10-2013 8/9 the legality/sustainability thereof this Court would take into consideration the relevant provisions of the Rule and the interpretation thereof made by a Division Bench of this Court. What has been decided in the case of Smt. Renu Kumari Pandey (supra) is the ambit and the scope of the enquiry/consideration to be made by the Tribunal constituted under the Rule. The position in law clarified in the case of Smt. Renu Kumari Pandey (supra) shall be deemed to be in existence from the very inception. Even the Tribunal in the order earlier passed on the application/complaint filed by the respondent No. 7 came to the similar conclusion and rejected the complaint filed by the respondent No. 7. The record of C.W.J.C. No. 13577 of 2007 has been perused by me. It appears therefrom that no notice of the writ application was issued to the respondent (writ petitioner herein). The writ petitioner as well as the State respondent(s) could not place before the Court the order passed by a Division Bench of this Court in the case of Smt. Renu Kumari Pandey (supra) on 23.8.2011. While exercising plenary jurisdiction under Article 226 of the Constitution of India, this Court has to appreciate the submissions of the parties in the light of the provisions of the Rules as interpreted by this Court. This Court has, therefore, no manner of doubt in concluding that the Tribunal completely erred in granting the relief after holding that the engagement/appointment of the writ petitioner as PSM was contrary to the then existing provisions of the circulars/guidelines/instructions. The contention of the petitioner made in this regard appears to be well founded. 12. There is another aspect of the case. Even if the contention of the respondent No. 7 that the caste certificate filed Patna High Court CWJC No.19834 of 2011 (5) dt.31-10-2013 9/9 along with the application is accepted, it appears that the same did not certify in the light of instructions/circulars of the Government of India contained in Memo No. 89 of 1993 that the person certified therein did not belong to creamy layer. The certificate said to have been filed by respondent No. 7 has been placed on record by the petitioner. It simply declares that the petitioner belongs to backward class. Filing of such caste certificate does not improve the case of the respondent. The petitioner has drawn attention of the Court to the resolution of the selection committee wherein a general stand applicable to all was taken that those applicants who had not furnished caste certificates shall be treated to be the candidates belonging to the general category. The claim of the petitioner relying on the said caste certificate cannot be accepted. 13. For the reasons indicated above, this Court is persuaded to allow the present writ petition and set aside the order dated 25.10.2011 passed by the Tribunal in Case No. 1078 of 2009 (Annexure-9). 14. I order accordingly. There will be no order as to costs. (Kishore Kumar Mandal, J) sudip/-