Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.63 of 2011 ====================================================== 1. Smt.Nita Kumari W/O Satish Kumar Resident Of Village- Mirachak, P.O- Mosma, P.S- Warsaliganj, District- Nawadah, At Present Posted As Incharge Mead Mistress Of Primary School (Upgraded Middle School) Mosma, P.S- Warsaliganj, District- Nawadah. .... .... Petitioner/s Versus 1. The State Of Bihar Through Secretary, Human Resources Deptt., Govt. Of Bihar, Patna. 2. District Teacher Employment Appellate Authority, Nawadah, District- Nawadah. 3. District Superintendent Of Education, Nawadah, District- Nawadah. 4. Block Education Extension Officer, Warsaliganj, District- Nawadah. 5. Mukhiya, Gram Panchayat Mosma, Block- Warsaliganj, District- Nawadah. 6. Panchayat Secretary, Gram Panchayat Mosma, Block Warsaliganj, District- Nawadah. 7. Ravi Ranjan Kumar S/O Lakshmi Narayan Chandra At And P.O- Mosma, Block Warsaliganj, District- Nawadah At Present Posted As Panchayat Teacher, Primary School- Khanpur, Gram Panchayat Mosma, Block- Warsaliganj, District- Nawadah. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Sidhendra Narayan Singh For the Respondent/s : Mr. Sidharth Shankar Pandey, A.C. to G.P. 24 Mr. Deepak Kumar, Mr. Arun Kumar ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER 9 23-10-2013 Although the matter has been listed for consideration of the interlocutory application being I.A. No. 8821 of 2011 filed by the Respondent No. 7 for vacating the interim order passed in the present case but considering the fact that the pleadings are complete and the parties have agreed for final disposal of the writ application, this Court permitted the petitioner as well as the respondents to make their respective submissions. Patna High Court CWJC No.63 of 2011 (9) dt.23-10-2013 2 Heard learned counsels for the petitioner, the respondent State, Respondent Nos. 5 and 6 as well as private respondent No. 7. The petitioner aggrieved by the order dated 2.12.2010/3.12.2010 passed in Appeal No. 377 of 2010 by the District Teacher Employment Appellate Authority, Nawada (for short “the Authority”) constituted under Primary Teachers (Employment and Service Conditions) Rules, 2006 (for short “ the Rules”) has filed the present writ application. Relevant facts giving rise to the writ application are as follows: The petitioner as well as Respondent No. 7 was engaged after their selection as Panchayat Shiksha Mitra (for short “PSM”) in the year 2003. Alongwith the petitioner and the Respondent No. 7, three others were also selected for the said assignment. The petitioner joined the said post on 17.2.2003. The selection initially was for a period of 11 months. After expiry of the said period, the petitioner as well as the Respondent No. 7 was reselected/re-engaged as PSM by the Respondent Gram Panchayat. In the year 2004, the State Government made certain amendment/alteration in the relevant guidelines whereby the educational qualification for PSM was enhanced from Matriculation to Intermediate. It is the case of the petitioner that
Facts
Patna High Court CWJC No.63 of 2011 (9) dt.23-10-2013 3 since the petitioner as well as the Respondent No. 7 had the requisite qualification and, as such, both of them were again reselected/reengaged and thereby they continued to discharge the duties of PSM. On 1.7.2006, the State Government came out with the Rules. By virtue of the provisions contained in Rule 20(iii) thereof, all candidates/persons who were engaged on 1.7.2006 as PSMs were absorbed as Panchayat Teacher(s). The petitioner alongwith the other appointees including the Respondent No. 7 were absorbed as Panchayat Teachers and continued in the said positions. On 7.1.2008, the respondent District Superintendent of Education, Nawada (respondent No. 3) vide communication contained in Annexure-8 called upon the respondent Mukhiya to explain about the adherence of roaster in the matter of engagement/appointment of the Respondent No. 7. By the said communication, the honorarium payable to Respondent No. 7 was stopped. Since the said order interfered with the service condition of the Respondent No. 7, he preferred an appeal thereagainst in terms of the Rule 18 of the Rules before the Tribunal giving rise to Appeal No. 377 of 2010. The Tribunal/Authority by the impugned order (Annexure-1) set aside the engagement/appointment of the petitioner as PSM before conversion of the post of Panchayat Teacher. The respondents were directed by the Tribunal/Authority Patna High Court CWJC No.63 of 2011 (9) dt.23-10-2013 4 to pay the salary to the Respondent No. 7. Aggrieved thereby, the present writ petition has been filed. Learned counsel for the petitioner submits that the petitioner held the requisite qualification of Intermediate since she was initially engaged in 2003. Considering her performance, she was again re-engaged on the same post. In the year 2004, the educational eligibility for the post was changed from matriculation to Intermediate. Considering the fact that the petitioner held the requisite educational qualification, she was again re-engaged as PSM until the coming into force of the Rules on 1.7.2006 whereby the post of PSM held by the petitioner stood converted into the post of Panchayat Teacher by virtue of provisions contained in Rule 20(iii) of the Rules. No person/candidate aggrieved by selection of the petitioner as well as respondent No. 7 had filed any objection. It was the District Superintendent of Education, who on his own, after lapse of several years raised the issue with regard to adherence of roaster. The petitioner admittedly had the highest marks amongst the PSMs initially engaged by the respondent Gram Panchayat. It has next been contended that the Tribunal in passing the impugned order exceeded its jurisdiction. Any question or issue with regard to selection of the candidate as PSM cannot be raised before and entertained by the Tribunal in Patna High Court CWJC No.63 of 2011 (9) dt.23-10-2013 5 view of the provisions contained in the Rules as interpreted by
Legal Reasoning
learned Single Judge of this Court in the case of Dayanand Yadav versus State of Bihar [2013 (4) P.L.J.R. 66] has set aside the order passed by the Tribunal. Learned counsel for the private respondent No. 7, on the other hand, submits that the Tribunal, while setting aside the engagement of the writ petitioner as PSM (followed by her conversion to the post of Panchayat Teacher) has found selection of the respondent no. 7 in accordance with law and, therefore, directed for payment of salary which was withheld by reason of order contained in Annexure-8. He submits that an affidavit has been filed on behalf of Respondent Nos. 5 and 6 wherein a clear stand has been taken that all the appointees of 2003 against which no grievance was raised/made by any of the applicants may be allowed to be continued. Learned counsel for the Respondent Nos. 5 and 6 placed the averments made in paragraph 3 of the counter affidavit which reads thus: “3. That, however, it is humbly submitted that the petitioner as well as Respondent No. 7 both Patna High Court CWJC No.63 of 2011 (9) dt.23-10-2013 6 are working since 2003 on their respective posts of Panchayat Shikshak in different schools, both have received training as per the direction of State Government and there is no complain against both of them in connection with their performance as teacher and in this background if possible both of them may be allowed to continue. It is also submitted that if there was any violation of roaster in their appointment, it was required to be pointed out immediately by the State respondents and the „Panchayat‟ has no objection if both are allowed to continue to their respective places.” Counter affidavit(s) have been filed on behalf of the State respondents. In the counter affidavit filed on behalf of Respondent No. 3 (District Superintendent of Education, Nawada), it has been stated that the selection of PSM is made by the Selection Committee headed by the Mukhiya of the concerned Gram Panchayat and the Panchayat Secretary (respondents herein). They are, therefore, the appropriate authority/person who
Arguments
this Court in the case of Smt. Renu Kumari Pandey versus State of Bihar [ 2011 (4) P.L.J.R. 297]. Elaborating further, it has been submitted that relying on the said judgment of this Court, a
Decision
may answer effectively to the pleadings made in the writ petition. The said respondent has no role in the selection/engagement of PSM and/or after conversion of the said post as Panchayat Teacher. I have heard the parties and perused the materials on record. The order passed by the Tribunal/Authority has mainly been challenged on the ground that the Tribunal had no jurisdiction in the matter. This Court had the occasion to consider Patna High Court CWJC No.63 of 2011 (9) dt.23-10-2013 7 the scope of the jurisdiction conferred on the Tribunal/Authority constituted under the Rules in Renu Kumari Pandey (supra). This Court held in paragraph 18 of the report as under: “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 machinery. In other words, the State Government did not make any provision for redressal of grievance in respect of selection and employment of Panchayat Shiksha Mitra or their reemployment after the expiry of the contractual period. On perusal of the records of the above writ in absence of such that petitions, we find machinery, the aggrieved persons approached the authority whom such persons considered to be the /the convenient authority. In our competent opinion, in absence of powers expressly conferred upon any such authority the reports or the orders made by such authority are of no consequence. No relief can be granted on the basis of the finding recorded by such authority. We may also point out that Elementary Teachers Appellate Authority constituted under Rule 18 of the Rules, as amended by Bihar Panchayat Elementary Teacher Conditions) (Employment (Amendment) Rules, 2008 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 the disputes relating to the employment of Panchayat then prevalent Shiksha Mitra under Resolutions, Circulars, Orders, Instructions” to entertain, hear or decide is empowered Service and the In Dayanand Yadav (supra), a learned Single Judge of this Court relying on Renu Kumari Pandey (supra) as well as Patna High Court CWJC No.63 of 2011 (9) dt.23-10-2013 8 another order passed by this Court in Saroj Kumar and Ors versus State of Bihar and Ors [2013(4) P.L.J.R. 897] held as under in paragraph 5: to whether “Considering irregularities, the submission of the parties, it appears that in the case reported in 2011(4) PLJR page 297 (DB) as also the Single Bench Judgement of this court in the case of Saroj Kumar and Others Vs. State of Bihar and Others reported in 2013 (2) PLJR Page 897 the if any, issue as committed in engaging the Shiksha Mitra would be a subject matter of consideration by the appellate authority constituted under Rule 18 of the aforesaid rule was considered . This court held that the appellate authority cannot exercise his jurisdiction with respect to the irregularities, if any in the enrollment of the persons who were earlier engaged as Shiksha Mitra and the matter cannot be reopened after they acquired status of Panchayat Teacher and as such, any omission or commission on the part of these petitioner can be subject matter of consideration by the appellate authority under Rule 18 of the aforesaid rules” The proposition of law, therefore, stands well crystalised. The Tribunal cannot initiate any enquiry with respect to engagement of the parties before it on the post of PSM. The Tribunal assumes jurisdiction only after conversion of the incumbents engaged as PSM to the post of Panchayat Teacher. In the light of ratio laid down in the case of Renu Kumari Pandey (supra), this Court has no hesitation in concluding that the order passed by the Tribunal suffered from lack of jurisdiction. The Patna High Court CWJC No.63 of 2011 (9) dt.23-10-2013 9 petitioner has placed the contents of the order passed by the Tribunal wherefrom it appears that the Tribunal considered the illegalities/irregularities committed by the appropriate/competent authority in the engagement of the petitioner and/or the Respondent No. 7 as PSM. It is to be kept in focus that there is no dispute that the petitioner as well as Respondent No. 7 were initially engaged in 2003 and they continued on the said post after being re-engaged/reselected until 1.7.2006 when by virtue of the provisions contained in the Rules, they became Panchayat Teachers. Both of them held requisite educational qualification for the post. No candidate or aspirant had raised any objection against such selection of the petitioner as well as Respondent No. 7 within the time prescribed therefor. The Respondents Mukhiya and the Panchayat Secretary in their counter affidavit have clearly taken a stand that both of them could be allowed to continue on the post. In view of my discussions made above, the order dated 2.12.2010/3.12.2010 passed in Appeal No. 377 of 2010 by the District Teacher Employment Appellate Authority, Nawada as contained in Annexure- 1 to the extent it declares the appointment/engagement of the writ petitioner as PSM is quashed and set aside. If the Respondent No. 7 is still continuing on the post and has not been paid his salary, the respondent(s) shall pay Patna High Court CWJC No.63 of 2011 (9) dt.23-10-2013 10 the same forthwith. There shall be no order as to costs. Pankaj/- (Kishore Kumar Mandal, J)