Rani Kumari v. The State Of Bihar & Ors.

Per contra, Mr. Yogendra Mishra, learned counsel for the respondent no.9, while supporting the impugned order passed by the Tribunal, has submitted that the Tribunal has only carried out the direction given by this Court in the order dated

5.4.2012 in CWJC No. 19642 of 2010 and having examined the material on record has found that the respondent no.9 belonging to the Backward Category had higher marks and merit points as against the petitioner of this case and was fit to be retained in service.

Mr. Rakesh Ranjan, appearing on behalf of the respondent no.10, has also adopted the submissions of Mr. Mishra, learned counsel for the respondent no.9.

Mr. Tej Bahadur Singh, learned AAG-7 also while Patna High Court CWJC No.23251 of 2012 (9) dt.22-07-2013 4 supporting the impugned order of the Tribunal has sought to explain to that once this Court had found the appointment of the respondent no.10 to have been validly made against the post of Panchayat Teacher in the open category on which the respondent no.9 had been earlier appointed in view of her having highest marks amongst all the candidates, the cancellation of the appointment of the respondent no.9 on the ground of the respondent no.10 being the candidate of open category having higher marks than the respondent no.9 it was quite logical for the respondent no.9 to claim her appointment against the post earmarked for the Backward Female Category, inasmuch as, she had much higher marks in comparison to the petitioner also belonging to the Female Backward Category. In this regard, he had referred to the judgment of the Apex Court in the case of Union of India Vs. Ramesh Ram & Ors. reported in 2010(7)SCC 234.

In reply, Mr. Jha has submitted that as because the impugned order of Tribunal came to be passed against the petitioner on account of remand made by this Court in the order dated 5.4.2012 in CWJC No. 19642 of 2010, the petitioner had filed her review application Civil Review No. 283 of 2013 and once this Court would find that the earlier order dated 5.4.2012 in CWJC No. 19642 of 2010 was passed without considering the case of the petitioner, it will have no option but to recall the Patna High Court CWJC No.23251 of 2012 (9) dt.22-07-2013 5 aforesaid order which in turn would make the entire exercise of the Tribunal leading to the impugned order dated 9.11.2012 subject matter of CWJC No. 23251 of 2012 to be futile.

In the light of the aforesaid submission of the learned counsel for the parties, the first and foremost question would be as to what had emerged in the earlier round of proceedings before this Court leading to the order dated 5.4.2012 in CWJC No. 19642 of 2010, filed by the respondent no.9, Kiran Kumari as against the order of the Tribunal in Case No. 14 of

In this regard, it would be necessary for this Court to take note of some of the relevant facts. It is not in doubt that in the year 2006 after enforcement of the Bihar Panchayat Primary Teacher (Employment & Service Condition) Rule, 2006, an exercise was made for filling up the post of Panchayat Teacher in Ranjitpur West Panchayat in Dumera Block of Sitmarhi district. Apart from other posts of Panchayat Teacher, there were two posts, one of the General Open Category (Unreserved) and other was of Backward Female Category. The respondent no.9 though belonging to Backward Female Category having secured higher marks than the candidates of General Open Category was selected and appointed as a Panchayat Teacher against the post of General Open Unreserved Category whereas the petitioner was appointed Patna High Court CWJC No.23251 of 2012 (9) dt.22-07-2013 6 against the post of Backward Female Category. Such appointment of the respondent no.9 initially was assailed before the Tribunal by the respondent no.10 on the ground that she had higher marks than the respondent no.9 and, therefore, when there was a better candidate available for the Open Unreserved Category, the appointment of the respondent no.9 could not have been sustained against the post of General Open Category.

It appears that the complaint filed by the respondent no.10 against the appointment of respondent no.9 was allowed by the Tribunal by its order dated 26.5.2009 (Annexure- 12) and the appointment of the respondent no.9 was cancelled on the ground that she had only secured 61.33% marks as against the respondent no.10 securing 62.77% marks. This order came to be passed after three years of continuance of the respondent no.9 in service as a Panchayat Teacher and as because she was not made party in the complaint filed by the respondent no.10, she had moved this Court in CWJC No. 8339 of 2009 and this Court by an order dated 8.7.2010 had set aside the order of the Tribunal only on the ground of violation of the principle of natural justice wherein it was held as follows:-

Having heard the parties including counsel for respondent no.8, I am satisfied that the impugned order cannot be sustained. It violates basic principle of natural justice. Whatever ultimate fate of the case but the parties Patna High Court CWJC No.23251 of 2012 (9) dt.22-07-2013 7 must be noticed and heard before an order is passed by any authority. The order of the Tribunal is quashed. The matter is remanded back to the Tribunal to be decided after notice to the parties in accordance with law at the earliest and preferably within three months from the date of production of a copy before the Tribunal.

It was in the backdrop of the aforesaid order of remand of this Court that the complaint of the respondent no.10 against the appointment of the respondent no.9 was once again considered by the Tribunal in Case No. 14 of 2010 and the Tribunal after hearing the parties including the respondent nos. 9 & 10 had set aside the appointment of the respondent no.9 after noticing that there was not only denial of opportunity to the respondent no.10 in course of counseling but in fact the respondent no.10 had higher marks (62.77%) as against the respondent no.9 having 61.33%. The Tribunal in the said order had also clearly recorded that the application of the respondent no.9 was in fact for the post of Panchayat Teacher reserved for the Backward Female Category and, therefore, the respondent no.10 could not have been deprived of her better merit post earmarked for the General Open Category.

It was this order of the Tribunal dated 29.9.2010 which was again assailed by the respondent no.9 in CWJC No. 19642 of 2010 wherein the petitioner was also impleaded as a Patna High Court CWJC No.23251 of 2012 (9) dt.22-07-2013 8 party as respondent no.10 of that case. This Court had found no merit in the challenge of the respondent no.9 in the impugned order of the Tribunal dated 29.9.2010 so far it related to the direction for appointment of the respondent no.10 and the relevant part of the order of this Court on this aspect in CWJC No. 19642 of 2010 (Annexure-14) reads as follows:- “Having heard counsel for the parties this Court would not find any infirmity in the impugned order passed by the District Teachers Employment Appellate Authority, Sitamarhi in Case No. 14 of 2010, inasmuch as it is an admitted position that the petitioner had obtained only

61.33% marks in the qualifying examination as against respondent no.9 securing 62.77% marks. Thus, when the Tribunal has also come to the specific finding that respondent no.9 despite having higher marks was edged out on account of faulty procedure adopted by the Panchayat, the consequential direction given by the Authority/ Tribunal for removing the petitioner and appointing respondent no.9 is absolutely correct.”

As noted above, the respondent no.9 was a candidate of Backward Female Category and she was appointed in the Open Category only because she had more marks than the candidate of General Category but on account of the allowing the case of the respondent no.10, when she was sought to be appointed, she had taken a plea that she would be entitled to go back to her original post of Backward Female Category wherein she had a better case on merit in comparison to the petitioner of Patna High Court CWJC No.23251 of 2012 (9) dt.22-07-2013 9 this case. This Court had noted this argument of the respondent no.9 and as the petitioner of this case was also party to CWJC No. 19642 of 2010, it had gone to record its findings in this regard in the following terms:- “Mr. Abhinav Srivastava, learned counsel for the petitioner, however, would submit that even appointment of the petitioner as against respondent no.9 was held to be bad, the Tribunal was required to look into the aspect as to whether the appointment of respondent no.10 belonging to the same backward category (female) was justified, inasmuch as the petitioner had more marks than respondent no.10 ( Rani Kumari).

From reading of the aforementioned order of this Court, it would be more than clear that the liberty to the respondent no.9 to file a fresh complaint before the Tribunal was given in presence of the petitioner of this case and in fact, this Court had also noted the submission of the learned counsel for the petitioner of this case that the appointment of the petitioner Rani Kumari was against the disabled category. Therefore, it cannot be said that either the order giving liberty to the respondent no.9 to file fresh complaint as against the appointment and continuation of the petitioner of this case was passed behind the back of the petitioner or her case was not noticed in the earlier round of litigation in CWJC No. 19642 of 2010 disposed of on 5.4.2012.

It has to be noted that the petitioner of this case had accepted the order dated 5.4.2012 by allowing it to become Patna High Court CWJC No.23251 of 2012 (9) dt.22-07-2013 11 final without assailing it in any appeal. As a matter of fact, it was the respondent no.9 who had filed an appeal, LPA No. 884 of 2012, which was disposed of by an order dated 3.7.2012 and the division bench of this Court while dismissing the appeal, had held as follows:-

The Writ Court considered the case of the appellant against respondent nos. 9 and 10. On the basis of higher marks of respondent no. 9 and findings of the Appellate Authority, petitioner was not found entitled for any relief vis-a-vis respondent no. 9. We do not find any cogent reason to interfere. So far as appellant’s case against Rani Kumari (respondent no. 10) is concerned, the Court noticed that Rani Kumari was not made party to the proceeding before the Appellate Authority and therefore, a liberty has been granted to the petitioner that he can file a fresh complaint before the District Teachers Appellate Authority, Sitamarhi within one month from the date of the order. The reasons given by the Writ Court are sound. While agreeing with the directions of the Writ Court, we extend the time by one month from today. If a complaint is filed by the appellant against respondent no. 10, within the time indicated above, the same should be disposed of expeditiously on its own merits.

The order dated 5.4.2012 in CWJC No. 19642 of 2010 has therefore not only merged with the order dated 3.7.2012 in LPA No. 884 of 2012 but has also received approval both in respect of appointment of the respondent no.10 of this case against the general (unreserved) post earlier occupied by the respondent Patna High Court CWJC No.23251 of 2012 (9) dt.22-07-2013 12 no.9 as also giving liberty to the respondent no.9 to assail the appointment of the petitioner of this case.

In view of the above, this Court must hold the said Review Application No. 283 of 2013 filed by the petitioner to be wholly misconceived and ill advised. The Civil Review No. 283 of 2013 is accordingly dismissed.

Coming to the merit of this case, it would be found that the Tribunal in view of the direction given by the Division Bench in the order dated 3.7.2012 had entertained the complaint of the respondent no.9 against the appointment the petitioner and having registered the case no.46 of 2012 as also after hearing the petitioner, respondent no.9 and respondent no.10 of this case had recorded its findings relevant portion whereof reads as follows:- “nksuks i{kksa dks bl rF; ls budkj ugha gS fd vkosfndk fdj.k ;kno o foi{kh jkuh dqekjh nksuks fiNM+s oxZ ls gS rFkk nksuksa us f’k{kd fu; kstu gsrq vius&vius dksfV ;kfu fiNM+k oxZ esa vkosnu fn;s FksA bl rF; ls Hkh budkj ugha gS fd vkosfndk fdj.k ;kno dk es/kkad 61-33 gS rFkk jkuh dqekjh dk es/kkad 50-22 gSA fdj.k ;kno us dHkh Hkh viuk fu; kstu lkekU; efgyk oxZ esa djus ds fy, fuosnu ugha fd;k cfYd vfHkys[k …lR;kiu iath‰ ls Li"V gksrk gS fd p;fur lwph ds (cid:216)ekad 3 ij fdj.k ;kno dk uke B.C.F dksfV esa gh ntZ gS ijUrq ckn eas lkekU; efgyk oxZ esa fjfDr gksus ds dkj.k rFkk fdj.k ;kno dk es/kkad vf/kd gksus ds dkj.k mudk fu; kstu lkekU; efgyk oxZ esa fd;k x;k gSA bl ckr ls Hkh foi{kh budkj ugha dj ldrs rFkk vfHkys[k ls Hkh bl ckr dh iqf"V gksrh gS fd jkuh dqekjh ;|fi fd ck;s iSj ls fodykax gS rFkk esfMdy cksMZ lhrke<+h us mUgsa 55 izfr’kr fodykax gksus dk izek.k&i= fn;k gS ijUrq lacaf/kr xzke iapk;r jkt jathriqj if’peh dks f’k{kd fu; sktu esa foDykax oxZ dk dksbZ in vkjf{kr ugha Fkk rFkk jkuh dqekjh Patna High Court CWJC No.23251 of 2012 (9) dt.22-07-2013 13 dk Hkh fu; kstu foDykax dksfV esa ugha cfYd fiNM+k oxZ esa gqvkA pwfd fdj.k ;kno dk es/kkad vf/kd gksus ds dkj.k rFkk lkekU; efgyk oxZ esa in fjDr crkdj fu; kstu lfefr us fdj.k ;kno dk fu; sktu lkekU; efgyk oxZ esa dj fn;k ftlls fiNM+k oxZ dk ,d in fjDr cp x;k vkSj ml ij jkuh dqekjh dk fu; kstu dj fn;k x;kA ;gkW mYys[kuh; gS fd ;fn fdj.k ;kno dk fu; sktu lkekU; efgyk oxZ esa ugh djds fiNM+k oxZ efgyk oxZ esa fd;k x;k gksrk tSlk fd mudk vkosnu Fkk rc jkuh dqekjh dk fu; kstu ugha gks ikrkA bl izdkj ;g Li"V gks tkrk gS fd fu; kstu ds le; fiNM+k oxZ esa ,d in fjDr Fkk rFkk fdj.k ;kno dk es/kkad 61-33 Fkk tks jkuh dqekjh ds es/kkad 50-22 ls vf/kd Fkk vkSj ogh mDr ,d in ij fu; sktu dh vf/kdkfj.kh Fkkh ijUrq fu; sktu lfefr lkekU; efgyk oxZ esa ,d in fjDr djds fdj.k ;kno dk fu; kstu fiNM+k oxZ esa u djds lkekU; oxZ esa fd;k ftlds QyLo:i fiNM+k oxZ esa ,d in fjDr jgk rFkk jkuh dqekjh dk fu; kstu fd;k x;kA fu; kstu lfefr us ;fn ,slk ugha fd;k gksrk rks fdj.k ;kno dk fu; sktu mlh le; fiNM+k oxZ ij gksrk rFkk jkuh dqekjh dk fu; kstu ugha gks ikrkA ,slh fLFkfr esa ;fn fdlh dkj.k ls ;k fdj.k ;kno ls vf/kd es/kkad okys fdlh vH;FkhZ ds pqukSrh nsus ij fdj.k ;kno dk fu; sktu jn~n gksrk gS rks fuf’pr rkSj ij og fopkj.kh; gksxk fd D;k fiNM+k oxZ esa fdj.k ;kno ls de es/kkad okys fdlh f’k{kd ;k f’kf{kdk dk fu; sktu rks ugha gS ;fn ,slk gS rks fuf’pr rkSj ij vf/kd es/kkad okys dks izkFkfedrk nsdj fu; sktu fd;k tk; sxk rFkk de es/kkad okys dk fu; kstu jn~n gksxkA ;gh fcgkj izkjfEHkd iapk;r f’k{kd fu; kstu ,oa lsok ’krZ fu; ekoyh dk Hkh mn~ns’; gSA foi{kh }kjk] vkosfndk ds vihy dks dkyckf/kr gksus ij cgqr tksj fn;k x;k rFkk dgk x;k gS fd vihy okn dkyckf/kr gksus ds dkj.k fopkj.kh; ugha gSA bl laca/k eas eS ikrk gwW fd ekuuh; mPp U;k;ky; iVuk }kjk lh0MCyw0ts0lh0u0&19642@2010 rFkk ,y0ih0,0 884@2012 esa] vkosfndk dks vihyh; izkf/kdkj es dsl djus ds fy, ,d ekg dk le; fn;k x;k vkSj ml ,d ekg ds le; lhek ds vUnj ;g vihy okn izLrqr fd;k x;k tks dkyckf/kr ugha gks ldrkA ekuuh; mPp U;k;ky; iVuk }kjk fn;k x;k ,d ekg dk le; Li"V:i ls n’kkZrk gS fd ;fn vkosfndk ds foyEc ls okn nk;j djus dh NwV izkIr Fkh vFkkZr mldk foyEc ekuuh; mPp U;k;ky; }kjk ekQ dj fn;k x;kA mijksDr foospukvksa ds vk/kkj ij eSa bl fu"d"kZ ij igqWprk gwW fd jkuh dqekjh dk es/kkad 50-22 gS tks fdj.k ;kno ds es/kkad 61-33 ls de gSA jkuh dqekjh rFkk fdj.k ;kno nksuksa fiNM+k oxZ efgyk dksfV dh vH;fFkZuh gS rFkk mDr dksfV esa dsoy ,d in fjDr gSA fu; ekuqlkj mPp es/kkad okys vH;FkhZ dks ojh; rk nsuh gS vr% jkuh dqekjh dk fu; sktu Patna High Court CWJC No.23251 of 2012 (9) dt.22-07-2013 14 fujLr fd;k tkrk gS rFkk mDr in ij fdj.k ;kno vkosfndk dks fu; ekuqdwy fu; ksftr fd, tkus dk vkns’k fn;k tkrk gSA**

As would be noted, the Tribunal has gone into both the aspects, namely, that the respondent no.9 was not only belonging to Backward Female Category but had also filed her application for the post of Panchayat Teacher for that post of Backward Female Category and her name was placed above the petitioner who too was an applicant in the Backward Female Category because whereas the respondent no.9 had secured

61.33% marks, the petitioner had secured only 50.22% marks. The Tribunal has also found that the selection and appointment of the respondent no.9 against the post of General Unreserved Category was on account of her being a higher merit position and once her appointment against that post was cancelled on account of the respondent no.10 Nitu Kumari having more higher marks, her claim on the post of Backward Female Category could not be altogether extinguished specially when the petitioner also was appointed against the Backward Female Category and not against the post of physically handicapped category. In this regard what is important to be noted here is that the plea of the petitioner that she was appointed on account of she being physically handicapped category has been dealt by the Tribunal and rejected on the ground that there was no post earmarked for physically handicapped Patna High Court CWJC No.23251 of 2012 (9) dt.22-07-2013 15 category in the Panchayat in question.

The issue of limitation raised by Mr. Jha, learned counsel for the petitioner, is also without any substance. Firstly it was not that respondent no.9 for the first time had sought to assail the appointment of the petitioner by filing a complaint in the year 2012 rather when she herself having continued for more than four years was sought to be removed on account of the complaint of Nitu Kumari (respondent no.10 of this case) allowed, she had given the liberty by this Court in presence of the petitioner for raising the issue of her being retained on the post of Panchayat Teacher against the post of Backward Female Category. Thus, the reliance placed by Mr. Jha on the judgment of the Apex Court in the case of Local Administration Department (supra) seems to be wholly misplaced. Similarly the reliance by Mr. Jha on the judgment of the Apex Court in the case of M. Selvanayagam (supra) seems to be also wholly misplaced, inasmuch as, the Apex Court in that case had decided the issue as with regard to delay in making application for appointment on compassionate ground. The Apex Court in that context had held that the application filed for compassionate appointment on 2.7.1993 as with regard to death of the employee dying in harness on 22.11.1988 or the another application filed after seven years and six months of the death of the deceased employee was wholly belated, inasmuch as, Patna High Court CWJC No.23251 of 2012 (9) dt.22-07-2013 16 compassionate appointment made on the basis of those belated application could not have sub-served the object and purpose of the scheme of compassionate appointment. This Court would fail to appreciate as to how the ratio of the case of M. Selvanayagam (supra) can be made applicable to the facts of the present case.

Secondly, the submission of Mr. Jha that the respondent no.9 having already accepted her appointment against the post of General Category could not have reverted back on the post of Backward Female Category has also only noted for its being rejected. It was not that the respondent no.9 had filed her complaint for General Category and had given up her claim of the post of Backward Female Category. The findings of the Tribunal that the application of the respondent no.9 was in fact for the post of Backward Female Category and her name was also included in the panel of Backward Female Category at serial no.3, she cannot be non-suited on the ground that she had been appointed by the Panchayat on the post of General Category. The Panchyat at that point of time had done the correct thing in law, inasmuch as, if a candidate of a reserved category is found to have secured more the candidate of the General Category, appointment of the reserved category candidate has to be made against the post of General Category.

On the other hand, the submission of Mr. Jha that the judgment of the Apex Court in the case of Vikrambhai Maganbhai Chaudhari (supra) would support the case of the petitioner is far from the reality if the whole judgment is read in its true perspective. In the aforesaid case, the Apex Court was dealing with the statutory provision with regard to the time limit for filing of revision under Rule 29 of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 and having appreciated the requirement of exercise of power of revision by the appellate authority within six months of the date of the order passed to be revised in terms of Rule 29 (1)(v) of the aforesaid Rules had held as follows:- “10. As rightly observed by the Tribunal, the above sub-rule (1) of Rule 29 indicates 6 categories of revisional authorities. If we go further it shows that while no period is mentioned in sub-clauses(i) to (iv), sub-clause (v) refers to a period of six months from the date of the order proposed to be revised. Since the order was passed by exercising power under sub-clause (vi), we have to see whether in the notification specifying an authority a time- limit has been mentioned or even in the absence of the Patna High Court CWJC No.23251 of 2012 (9) dt.22-07-2013 19 same, the outer limit can be availed by exercising power under sub-clause (v). According to the learned ASG, there is no need to specify the period in the notification authorizing the authority concerned to call for the record for any enquiry and revise any order made under the Rules. We are unable to accept the said claim for the following reasons.

11. It is to be noted that in cases where the appellate authority seeks to review the order of the disciplinary authority, the period fixed for the purpose is six months from the date of the order proposed to be revised. This is clear from sub-clause (v) of sub-rule (1) of Rule 29. On the other hand, Clause (vi) confers similar powers on such other authorities which may be specified in that behalf by the President by a general or special order and the said authority has to commence the proceedings within the time prescribed therein. Even though Rule 29(1)(vi) provides that such order shall also specify the time within which the power should be exercised, the fact remains that no time-limit has been prescribed in the notification.

12. We have already pointed out that no period has been mentioned in the notification. The argument that even in the absence of a specific period in the notification in view of Clause (v), the other authority can also exercise such power, cannot be accepted. To put it clear, sub-clause (v) applies to the appellate authority and Clause (vi) to any other authority specified by the President by a general or special order for exercising power by the said authority under sub-clause (vi). There must be a specified period and the power can be exercised only within the period so prescribed.

13. Inasmuch as the Notification dated 29-5-2001 has not specified any time-limit within which the power under Rule 29(1)(vi) is exercisable by the authority specified, we Patna High Court CWJC No.23251 of 2012 (9) dt.22-07-2013 20 are of the view that such notification is not in terms with Rule 29 and the Tribunal is fully justified in quashing the same. The High Court has also rightly confirmed the said conclusion by dismissing the special application of the appellants and quashing the notification on the ground that it did not specify the time-limit. Consequently, the appeal fails and the same is dismissed. No order as to costs.”

As noted above, there is no prescribed period of limitation for filing of the complaint loosely described as an appeal in terms of Rule 18 of the fcgkj iapk;r izkjafHkd f” k{kd ¼fu; kstu ,oa lsok “krZ½ fu; ekoyh, 2006. In this regard it has to be noted that initially when the redressal forum was provided in the Bihar Panchayat Prarambhik Shikshak (Niyogan and Seva Sart) Niyamawali-2006 the power to decide the appeal was vested in the Block Development Officer wherein also no period of limitation was provided and a period of 30 days was only prescribed for deciding the appeal by the Block Development Officer as would be evidenced from the reading of Rule-18 of 2006 Rules :- 18& f’kdk;r bl fu; ekoyh ds v/khu fu; kstu LFkkukUrj.k vFkok lsok lEcU/kh ekeyksa esa fdlh Hkh izdkj dh f’kdk;r dk fu.kZ; ysus dh ’kfDr iz[kaM f’k{kd ds ekeys esa mi fodkl vk; qDr dks gksxh ,oa iapk;r f’k{kd ds ekeys esa iz[k.M fodkl inkf/kdkjh dh gksxhA lEcU/kh inkf/kdkjh vf/kdre 30 fnuksa ds vUnj f’kdk; rksa dk fu.kZ; ns nsaxsA^^

The State Government by resolution no. 3153 dated 25.08.2008 had thereafter constituted the District Teachers Patna High Court CWJC No.23251 of 2012 (9) dt.22-07-2013 21 Employment Appellate Tribunal and in the same also though it was an executive order, no period of limitation was prescribed. The notification which was issued on 23.10.2008 laying down service condition of the member of the Tribunal as also the manner of the functioning of the Tribunal, its rights and responsibility vide notification no. 3716 dated 23.10.2008 had made a provision that:- vihy drkZ }kjk fu; kstu ls lEcfU/kr lHkh izdkj dh vihy 30 fnuksa ds vUnj izkf/kdkj dks nsuk vfuok;Z gksxk A 30 fnuksa ds okn izkIr vihy ij leqfpr dkj.k gksus ij gh izkf/kdkj }kjk fopkj fd;k tk ldsxk A

As would be evident, that there was no beginning point of computing the period of 30 days prescribing the aforementioned limitation in filing of the appeal. It has to be kept in mind that there is no original authority whose orders are only to be questioned, inasmuch as, any matter relating to employment and/or terms and conditions of service of a Panchayat Teacher can be made subject matter of an appeal before the Tribunal. The expression used in the Government notification dated 23.08.2008 does say that such appeal has to be filed within 30 days of the issuance of the appointment letter of the person concerned. By now it is well settled that any interpretation of statute prescribing limitation cannot be made on the basis of implication or by way of inference. Reference in this connection may be usefully made to Patna High Court CWJC No.23251 of 2012 (9) dt.22-07-2013 22 the judgment of the Apex Court in the case of Lala Bal Mukund vs Lajwanti and Ors reported in AIR 1975 SC 1089:- We do not wish to encumber this judgment with a detailed discussion of all the citations and the reasoning advanced therein in support of one or the other view. It will be sufficient to say that upon the language of Section 12 (2) both the constructions are possible, but the one adopted by the majority of the courts, appears to be more consistent with justice and good sense. The Limitation Act deprives or restricts the right of an aggrieved person to have recourse to legal remedy, and where its language is ambiguous, that construction should be preferred which preserves such remedy to the one which bars or defeats it. A Court ought to avoid an interpretation upon a statute of Limitation by implication or inference as may have a penalising effect unless it is driven to do so by the irresistible force of the language employed by the legislature.

Be that as it may, such provisions was also by way of an executive instruction issued vide memo no. 3716 dated

23.10.2008 and was never incorporated in the Rules. As a matter of fact the amendment in the Rules was brought only on

03.07.2009 vide notification no. 1056 which reads as follows:- 3- fcgkj iapk;r izkjafHkd f’k{kd …fu; kstu ,oa lsok ’k(cid:217)kZ‰ fu; ekoyh] 2006 ds fu;e 18 dk izfrLFkkiu 1& m(cid:228) fu; ekoyh dk fu;e 18 fuEukafdr }kjk izfrLFkkfir fd;k tk; sxk %& 18& vihy %& bl fu; eokyh ds v/khu fu; kstu ,oa ’ksok’k(cid:217)kksZ ls Patna High Court CWJC No.23251 of 2012 (9) dt.22-07-2013 23 lEcfU/kr vihy lquus dh ’kf(cid:228) ftyk Lrj ij ljdkj }kjk xfBr ,d ;k ,d ls vf/kd lnL;ksa dh izkf/kdkj dks gksxhA ekuo lalk/ku fodkl foHkksx ds }kjk izkf/kdkj dh LFkkiuk ,oa lsok ’krks Z dk fu/kkZj.k fd;k tk; sxkA vihyh; izkf/kdkj dk xBu lsok fuo‘r fcgkj U;kf;d lsok] Hkkjrh; iz’kklfud lsok] fcgkj i’kklfud lsok] fcgkj f'k{kk lsok ds inkf/kdkfj; ksa ,oa vko’;drkuqlkj f'k{kkfonksa ls fd;k tk; sxkA^^

Thus neither in the 2006 Rules nor in the 2009 amended Rules, any period of limitation has been prescribed for filing of the complaint which has loosely been also described as an appeal. In fact there being no order of the original authority, the nomenclature of appeal is more or less to be understood in the context of Rule-18 which only says about filing of complaint before the Tribunal.

It is in this background that the press communique of the Principal Secretary of the Human Resources Development Department dated 17.04.2010 which is more or less by way notice/information has to be understood inasmuch as the same reads as follows:- ekuo lalk/ku fodkl foHkkx f” k{kd fu; kstu ls lacaf/kr f'kdk;r@vihy ds fu” iknu gsrq vko';d lwpuk f” k{kd fu; kstu ls lacaf/kr f” kdk; rksa@vihyksa rFkk fu; ksftr f” k{kdksa ds lsok ” krksZ ls lacaf/kr vihyksa@f” kdk; rksa ds fu” iknu gsrq ljdkj }kjk jkT; ds izR;sd ftyk esa ^ftyk f’k{kd fu; kstu vihyh; izkf/kdkj^ dk xBu fd;k x;k gSA bl izsl foKfIr ds ek/;e ls vke yksxksa ,oa lHkh lacaf/kr dks lwfpr fd;k tkrk gS fd f” k{kd fu; kstu ¼ f” k{kk fe=ksa ds yafcr vihy lfgr‰ ds tks Hkh f” kdk;r@vihy gS vFkok fu; ksftr f” k{kdksa ds lsok ” krksZ ls lacaf/kr tks Hkh Patna High Court CWJC No.23251 of 2012 (9) dt.22-07-2013 24 vihy@f” kdk;r gS mldh lquokbZ ,oa fu” iknu ftyk ds ^^ftyk f” k{kd fu; kstu vihyh; izkf/kdkj^^ ds }kjk gh fd;k tk; sxkA ;g Li"V fd;k tkrk fd f” k{kd fu; kstu ,oa lsok ” krksZ ls lacaf/kr vihy@f” kdk;r ftyk ds izkf/kdkj ds le{k gh nk;j djsaA fdlh ekeys dh vihy lkekU;r% 30 fnuksa ds vUnj nkf[ky fd;k tkuk gSA ;g Hkh lwfpr djuk gS fd f” k{kd fu; kstu ls lacaf/kr vihy@f” dk; rksa ds fu” iknu dk ,d ek= vf/kdkj ^^ftyk f”{kd fu; kstu vihyh; izkf/kdkj^^ dks gS] fdlh vU; dks ughaA vr% lacf/kr O;fDr f” k{kd fu; kstu ls lacaf/kr f” kdk; rksa ds fy, vius ftys ds ftyk f” k{kd fu; kstu vihyh; izkf/kdkj ds le{k gh vkosnu djsa] vU;= ughaA ih-vkj-&467 ¼ f” k{kk½ 10&11 …vatuh dqekj flag‰ iz/kku lfpo (underlining for emphasis)

From the aforesaid press communiqué, it would be clear that the appeal and complaint in fact are the same thing and again even by this executive order all that has been said is that ordinarily the appeal in any matter has to filed within 30 days. There is again no beginning point of limitation for computing the period of 30 days. Thus on the basis of the pleadings on record, the submission of learned counsel for the petitioner that there is a fixed prescribed period of appeal of 30 days which would commence from the date of appointment on the post of concerned Panchayat Teacher cannot be accepted.

Moreover, such complaint in the present case was filed by the respondent no.9 in terms of observation and direction given by this Court in the order dated 5.4.2012 in CWJC No. 19642 of 2010. Thus over emphasised plea of delay in filing of the Patna High Court CWJC No.23251 of 2012 (9) dt.22-07-2013 25 complaint by the respondent no.9 against the appointment of the petitioner is also wholly without any substance as has also been discussed above.

Thus, for the reasons recorded above, this Court must hold that there is no merit in this writ application.

That being so, both the writ application as also the Review application filed by the petitioner must fail and they are, accordingly, dismissed. Consequently the interim order passed by this Court in this case shall also stand vacated. surendra/- (Mihir Kumar Jha, J)