Kumari Anju v. The State of Bihar

13. Sri Surendra Mahto S/O - Rameshwar Mahto R/O - Village - Rasulpur, P.S. - Sahabaganj, Muzaffarpur

14. Mritunjay Kumar Singh, Son of Sri Ram Naresh Singh, resident of Village- Bhindiya, P.O- Narayanpur, P.S.- Madhaura, District- Chhapra (Saran), at present address posted in Utkramit Middle School, Bangra Barar, Anchal- Sahebganj, District- Muzaffarpur.

15. Purhpraj Padmakar, Son of Sri Madan Prasad Singh, resident of Village + P.O. Madhopur, Hazari, P.S.- Sahebganj Muzaffarpur and posted in Rajkiya Primary School Bangra Gachhi Tola, Sahebganj, District- Muzaffarpur.

16. Savita Kumari, W/o Sanjay Kumar, resident of Village+ P.O. Madhopur Hazari, P.S.- Sahebganj, Muzaffarpur and at present posted in Utkramit Middle School Bangra Sahebganj, District- Muzaffarpur. ====================================================== .... .... Respondent/s Patna High Court MJC No.1044 of 2014 (4) dt.23-07-2014 Civil Writ Jurisdiction Case No.17021 of 2012 ====================================================== Sohan Mahto, S/O Ram Nath Mahto, R/O Vill-Jagdishpur, P.S.-Sahebganj, Distt-Muzaffarpur. .... .... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Education Department Govt. of Bihar, Patna

2. The Principal Secretary, Education Department Government of Bihar, Patna

3. The Director, Primary Education, Govt. of Bihar, Patna

4. The District Teacher Employment Appellate Authority, Muzaffarpur through Its Member

5. The District Magistrate, Muzaffarpur

6. The District Education Officer, Muzaffarpur

7. The District Programme Officer (Establishment), Muzaffarpur

8. The Block Development Officer, Sahabganj, Muzaffarpur

9. The Block Education Officer, Sahabganj, Muzaffarpur

10. The Mukhiya, Panchayat Raj, Bangara Nizamat, Block-Sahabganj, Muzaffarpur

11. The Panchayat Secretary, Panchayat Raj, Bangra Nizamat, Block- Sahabganj, Muzaffarpur

12. The Head Master, Primary School, Vishnupur Chak Pahar (Kanya), Sahabganj, Muzaffarpur

13. Sri Surendra Mahto S/O Rameshwar Mahto R/O Vill-Rasulpur, P.S.- Sahabganj, Muzaffarpur.

14. Mritunjay Kumar Singh, Son of Sri Ram Naresh Singh, resident of Village- Bhindiya, P.O- Narayanpur, P.S.- Madhaura, District- Chhapra (Saran), at present address posted in Utkramit Middle School, Bangra Barar, Anchal- Sahebganj, District- Muzaffarpur.

15. Purhpraj Padmakar, Son of Sri Madan Prasad Singh, resident of Village + P.O. Madhopur, Hazari, P.S.- Sahebganj Muzaffarpur and posted in Rajkiya Primary School Bangra Gachhi Tola, Sahebganj, District- Muzaffarpur. Patna High Court MJC No.1044 of 2014 (4) dt.23-07-2014

16. Savita Kumari, W/o Sanjay Kumar, resident of Village+ P.O. Madhopur Hazari, P.S.- Sahebganj, Muzaffarpur and at present posted in Utkramit Middle School Bangra Sahebganj, District- Muzaffarpur. .... .... Respondent/s Rakesh Ranjan, Advocate. : Mr. Zaki Haider, AC to GA 6 : ====================================================== Appearance : (In MJC No.1044 of 2014) For the Petitioner/s : Mr. Krishna Kant Singh, Advocate. For the State For the Respondent (In CWJC No.16707 of 2012) For the Petitioner/s : Mr. Krishna Kant Singh, Advocate. For the State For the Respondent For the Respondent (In CWJC No.17021 of 2012) For the Petitioner/s : Mr. Krishna Kant Singh, Advocate. For the State For the Respondent For the Respondent ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL JUDGMENT : Mr. Rajiv Roy, GP 5 : : : Mr. Rajiv Roy, GP 5 : : Mr. Rakesh Ranjan, Advocate Me. Yugal Kishore, Advocate. Mr. Rakesh Ranjan, Advocate Me. Yugal Kishore, Advocate. 4 23-07-2014 Heard learned counsel for the parties.

2. In the above two writ application, the order of the District Teachers Employment Appellate Authority, Muzaffarpur (hereinafter referred to as 'the Tribunal') dated 18.08.2012 in case No. 20 of 2012/134 of 2011 has been assailed.

3. The third case i.e. M.J.C. No. 1044 of 2014 has been filed for modification of an order of this Court dated

12.07.2013 passed earlier in the aforesaid two writ applications.

4. It has to be kept in mind that the aforesaid two writ applications, C.W.J.C. No. 16707 of 2012 and C.W.J.C. No. 17021 of 2012, were heard and disposed of by common order Patna High Court MJC No.1044 of 2014 (4) dt.23-07-2014 dated 12.07.2013, remitting matter back to Tribunal with a direction to dispose of all the claims for appointment on the five post of Panchayat Teachers in question.

5. The aforesaid order dated 12.7.2013 however became the subject matter of LPA No. 1534 of 2013 and L.P.A. No. 1618 of 2013 at the instance of Mritunjay Kumar Singh, Pushpraj Padmakar and Savita Kumari , who were not parties to the aforesaid two writ applications and felt aggrieved by the order of remand of Tribunal.

6. While these two appeals, LPA No. 1618 of 2013 and LPA No. 1534 of 2014 were pending before the Division Bench, the writ petitioner Kumari Anju (in C.W.J.C. No. 16707 of 2012) had herself filed MJC No. 1044 of 2014 seeking modification in the order dated 12.07.2013, so far it related to stopping her from working and also getting salary till the matter was decided by the Tribunal within a time frame of four months.

7. In fact it was only during pendency of the M.J.C. No. 1044 of 2014 which, as noted above, was filed on 06.03.2014 that the final order passed by this Court dated 12.07.2013 in the two writ petitions has been set aside by the Division Bench by its order dated 31.03.2014 in L.P.A. No. 1534 of 2014 and L.P.A. No. 1618 of 2013 remitting the matter back to this Court to hear all the Patna High Court MJC No.1044 of 2014 (4) dt.23-07-2014 parties including Mritunjay Kumar Singh, Pushpraj Padmakar and Savita Kumari by getting them impleaded as party respondents to the two writ applications and also allowing them to file counter affidavits.

8. Thus, in view of the fact that the order of the Division Bench dated 31.03.2014 in LPA No. 1618 of 2013 and LPA No. 1534 of 2014 has already set aside the earlier order of this Court dated 12.07.2013, the modification application, M.J.C. No. 1044 of 2014, filed by Kumari Anju petitioner in C.W.J.C. No. 16707 of 2012, has become infructuous inasmuch as the order dated 12.07.2013 no longer exists.

9. M.J.C. No. 1044 of 2014 is, accordingly, dismissed as having become infructuous.

10. Having regard the observations and directions of the Division Bench in its order dated 31.03.2014 in LPA No. 1618 of 2013 and LPA No. 1534 of 2014, this Court has got Mritunjay Kumar Singh, Pushpraj Padmakar and Savita Kumari impleaded as respondent nos. 14, 15 and 16 in both the writ applications i.e. C.W.J.C. No. 16707 of 2012 and C.W.J.C. No. 17021 of 2012 respectively and they have also filed their counter affidavit in C.W.J.C. No. 17021 of 2012.

11. As noted above, in both the writ applications, the Patna High Court MJC No.1044 of 2014 (4) dt.23-07-2014 subject matter of challenge is the same order of the Tribunal dated

18.08.2012. Such order of Tribunal was passed in case No. 20 of 2012/134 of 2011 filed by Surendra Mahto (Respondent no. 13) wherein he had assailed only the appointment of one Sohan Mahto on the ground that he (Surendra Mahto) had secured higher place in the panel of extremely backward category on the basis of his higher marks in the merit list but his appointment was not made on account of his being not called for counselling, despite an earlier order of the Tribunal.

12. The Tribunal, after hearing the parties of case No. 20 of 2012/134 of 2011, namely, Surendra Mahto, the applicant before the Tribunal and Sohan Mahto, the O.P. No. 7 (now writ petitioner in C.W.J.C. No. 17021 of 2013) before the Tribunal as well as other officials opposite parties including Panchayat Sachiv of Gram Panchayat Raj Bangra Nizamat, Block- Sahebganj, Muzaffarpur, had held that the counselling was not done as per the Government decision and in accordance with the Bihar Panchayat Elementary Teacher (Employment & Service Conditions) Rules, 2006 and yet appointment of a person of a lower merit position had been made by the previous Mukhiya and Panchayat Secretary. The Tribunal had, accordingly, directed for counselling of the appointment of Surendra Mahto and also declared the entire Patna High Court MJC No.1044 of 2014 (4) dt.23-07-2014 process of appointment undertaken on 13/14.08.2010 to be bad. Having held so, the Tribunal had directed the concerned authorities to conduct a fresh counselling for making appointment on the post of Panchayat Teacher.

13. Since, Kumari Anju, petitioner in C.W.J.C. No. 16707 of 2012 and Sohan Mahto, petitioner in C.W.J.C. No. 17021 of 2012, had been adversely affected on account of the order of the Tribunal dated 18.08.2012 inasmuch as their appointment were made on the basis of counselling held on 13/14.08.2010, they had assailed the order of the Tribunal in these two writ applications i.e. C.W.J.C. No. 16707 of 2012 and C.W.J.C. No. 17021 of 2012.

14. The main challenge to the order of the Tribunal was based on the ground that if the applicant Surendra Mahto (Respondent no. 13) before the Tribunal was aggrieved in any manner in relation to selection process including appointment of both the writ petitioners, he had to move the Tribunal within a reasonable period but that having been not done by him, his application filed in the year 2011, and that too without impleading Kumari Anju, the petitioner in C.W.J.C. No. 16707 of 2012, was not maintainable.

15. This Court would find it difficult to sustain such Patna High Court MJC No.1044 of 2014 (4) dt.23-07-2014 challenge of the petitioners the maintainability of application filed by Surendra Mahto, respondent no. 13 to both the writ applications. It is not in dispute that the respondent no. 13 in his application before the Tribunal, impleaded Sohan Mahto, petitioner in C.W.J.C. No. 17021 of 2012. As with regard to non- impleadment of Kumari Anju, petitioner of C.W.J.C. No. 16707 of 2012, it becomes very clear from reading of the order of the Tribunal dated 18.08.2012 that since the respondent no. 13 belongs to the same category as that of petitioner Sohan Mahto and his merit list was separate as against the merit list of female candidates and as such he was not even required to implead Kumari Anju in his application before the Tribunal.

16. As a matter of fact, the Tribunal had found the entire process of counselling, held on 13/14.08.2010, wherein both the petitioners were appointed, to be void on account of non- compliance of the provisions of the 2006 Rules. Thus it cannot be said that the respondent no. 13 Surendra Mahto had committed any error by not impleading Kumari Anju.

17. This Court, in fact, having already found from the pleadings that only three persons, namely, Kumari Anju, petitioner of C.W.J.C. No. 16707 of 2012, Sohan Mahto, petitioner of C.W.J.C. No. 17021 of 2012 and Surendra Mahto, were before it Patna High Court MJC No.1044 of 2014 (4) dt.23-07-2014 and the issues also related to appointment and continuation of Mritunjay Kumar Singh, Pushpraj Padmakar and Savita Kumari and their fate and future were also involved it has accordingly in its earlier order dated 12.7.2013 had thought it prudent to remit the matter back to the Tribunal which however has now been set aside by the order dated 31.3.2014 passed by Division Bench in LPA No. 1534 of 2014 and LPA No. 1618 of 2013.

18. As now these three persons namely Mritunjay Kumar Singh, Pushpraj Padmakar and Savita Kumari, the appellants in the LPA No. 1534 of 2014and LPA No. 1618 of 2013 have been impleaded as respondent nos. 14, 15 and 16 respectively, the matter has been heard as a whole on merits.

19. The basic facts, in fact, are not in dispute. There were only 05 vacancies of the post of Panchayat Teacher in the Panchayat in question, namely, 02 for general category, 01 for general female category, 01 for extremely backward category and one for backward female category. While Mritunjay Kumar Singh and Pushpraj Padmakar (respondent nos. 14 and 15) having

65.44% and 65.11% marks respectively were appointed against two general posts of Panchayat Teacher.Sohan Mahto and Kumari Anju (the petitioners) having 69.22% and 67.88% were appointed against the post of extremely backward category and backward Patna High Court MJC No.1044 of 2014 (4) dt.23-07-2014 category female respectively. The respondent no. 16 Sabita Kumari, having 62.80% marks was appointed against the pot of general female category and in this process the respondent no. 13 Surendra Mahto, the applicant before the Tribunal, having 80.22% marks, was left out.

20. The submissions of learned counsel for the petitioners in these two cases that since their appointment was made against the earmarked post of Panchayat Teacher of backward female category and extremely backward category, their appointment could not have been assailed by the respondent no. 13, Surendra Mahto as he had not appeared in the counselling held on 13/14.08.2010 and in any event when the appointment of Mritunjay Kumar Singh, Pushpraj Padmakar and Savita Kumari, having lesser marks i.e. 65.44%, 65.11% and 62.80% respectively, was not disturbed by the Tribunal for accommodating the respondent no. 13 Surendra Mahto, their termination by holding the whole process of counselling, held on 13/14.08.2010, to be void could not be justified either on fact or in law.

21. On the other hand, learned counsel representing the respondent nos. 14, 15 and 16, have submitted that they have got nothing to do with the inter se claim of respondent no. 13 Surendra Mahto because even if he had secured 80.22% marks in Patna High Court MJC No.1044 of 2014 (4) dt.23-07-2014 the merit list, his name was to be included in the extremely backward category and could have displaced only Sohan Mahto who was appointed against the post of Panchayat Teacher of the extremely backward category. A strong reliance in this regard has been placed on the judgment of this Court in the case of Md. Sami Uddin vs. State of Bihar and Ors. reported in 2011(4) PLJR 230.

22. On the other hand, the learned counsel for the respondent no. 13, has submitted that it will be a mere travesty of justice that he, having the higher marks among all i.e. the two petitioners and the respondent nos. 14, 15 and 16, will have no place even when the order of the Tribunal for holding fresh counselling in case No. 1242 of 2009 filed by respondent no. 13 earlier, directing the Panchayat for holding of his counselling, was not complied.

23. In the considered opinion of this Court, the whole procedure of appointment on the post of Panchayat Teacher in the Panchayat, in question, is vitiated on account of non-observance of the rules of reservation as prescribed by the State and also made part of the Bihar Panchayat Elementary Teacher (Employment & Service Conditions) Rules, 2006 (hereinafter referred to as 'the 2006 Rules'). It is true that merit has to be prepared for each of the category. But then if a person of the reserved category has higher Patna High Court MJC No.1044 of 2014 (4) dt.23-07-2014 marks to the candidates of general category, they will have to be accommodated first against the post of general category and the rules of reservation will be applied for the remaining candidates of that reserved category.

24. This is also precisely the spirit of Section 4 of the Bihar Reservation of Vacancies in Posts of Services (For Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1991, wherein while providing for different percentage of vacancies for different reserve categories to the extent of 50% which has been laid down as follows: (3) A reserved category candidate who is selected on the basis of his merit shall be counted against 50% vacancies of open merit category and not against the reserved category vacancies."

25. The law laid down by the Apex Court in the case of Indra Sawhney vs. Union of India reported in AIR 1993 SC 477 and again in the case of Ritesh R. Sah vs. Y.L.Yamul & Ors. reported in AIR 1996 SC 1378, are also unambiguous and firm that a candidate of reserve category if he could make a place on the basis of his merit in general category, he/she shall not be counted against the reserve category.

26. Explaining this aspect, the Apex Court again, in the case of Union of India & Anr. vs. Satya Prakash & Ors. reported Patna High Court MJC No.1044 of 2014 (4) dt.23-07-2014 in (2006) 4 SCC 550, has also made it clear that only if the reserve category candidate, on being assigned the seat of the open category, does not get his/her choice he may be allowed to revert back to his own reserve category for the purpose of availing the benefit of reservation.

27. The rules of reservation, as it was applicable for the post of Panchayat Teacher, is prescribed under Rule 5 of the 2006 Rules, which reads as follows: 5- vkj{k.k& …d‰ *iapk;r izkjfEHkd f’k{kd* dk fu;kstu vkj{k.k jksLVj ds vuqlkj fd;k tk;sxkA …[k‰ izR;sd dksfV esa …’kkjhfjd f’k{kk f’k{kd dks NksM+dj‰ U;wure 50% efgyk vH;fFkZ;ksa dk fu;kstu fd;k tk;sxkA fo"ke la[;k jgus ij vafre in efgyk ds fy, fpfUgr fd;k tk;sxkA ’kkjhfjd f’k{kk f’k{kd ds in ds fy, izf’kf{kr efgyk mEehnokj ugha feyus ij mls mlh dksfV ds iq:"k dksfV izf’kf{kr mEehnokj ls Hkjk tk ldsxkA …x‰ iapk;r izkjafHkd f’k{kds ds izR;sd dksfV esa rhu izfr’kr fodykax …n‘f"V ckf/kr 1% Jo.k ckf/kr 1% rFkk vfLFktU; fodykax 1%‰ mEehnokjksa dk fu;kstu fd;k tk;sxkA fVIi.kh& es/kk ds vk/kkj ij p;u gkssus dh fLFkfr esa fdlh O;fDr dks fodykax gksus ds dkj.k fu;kstu ls oafpr ugha fd;k tk;sxkA**

28. As would be evident, the Government rules of reservation have been made applicable with certain modification inasmuch as for every category of post one of them has to be essentially reserved for the female candidates. The rules of reservation always envisage that the unreserved posts are meant for all the candidates, whereas post earmarked for the reserved category can be claimed only by person belonging to that reservation category. If that is not done, there will be negative Patna High Court MJC No.1044 of 2014 (4) dt.23-07-2014 reservation to the extent that even a better candidate on merit in the reservation category will have to remain confined in the reservation category, though his selection was possible even against the post of general (unreserved) category. That is how the law has been well settled that if a person of reservation category qualifies for the post of unreserved category on the basis of merit, he shall not be counted against the reservation category of post. This principle of reservation and roster of the State of Bihar is only based on the intelligence differentia, arising out of Article 15 (4) of the Constitution of India.

29. The issue can be still made more clear from the facts of the present case. There were five vacancies on the posts of Panchayat Teacher in question, namely, two for General (unreserved) category, one for General (unreserved female) category, one for Extremely Backward Class and one for Backward Category (Female).

30. The respondent nos. 14 and 15, who had only

65.44% and 65.11 % marks respectively, were appointed against the post of General category whereas the respondent no. 16, having 62.80% marks, was appointed against the post of General (Female) Category. The question, in fact, started from this stage because the two writ petitioners Sohan Mahto and Kumari Anju, Patna High Court MJC No.1044 of 2014 (4) dt.23-07-2014 who had higher marks of 69.22% and 67.88%, were appointed against the post of Extremely Backward Category and Backward (Female) Category.

31. As a matter of fact, this issue was raised primarily by Surendra Mahto before the Tribunal by filing a case being No. 1242 of 2009 and ultimately when Surendra Mahto was not appointed, he had approached this Court and it had remitted the matter back to the Tribunal to decide the matter. The impugned order, which has been assailed in this writ application dated

18.08.2002, in fact, was passed at the instance of Surendra Mahto.

32. Let it be noted that Surendra Mahto belongs to the Extremely Backward Category and his case was that despite he, having higher marks to all the candidates including Sohan Mahto, was ignored and not appointed. The Panchayat Secretary took a plea that the appointment of Sohan Mahto and Kumari Anju was made against the two posts earmarked for the respective reserved category to which they belonged and as such there was no flaw in not appointing Surendra Mahto. The Tribunal, in fact, has only found that once it was admitted that the petitioner Sohan Mahto had lesser marks than the respondent no. 13, Surendra Mahto, his appointment was to be made on the post being vacated by Sohan Mahto. Patna High Court MJC No.1044 of 2014 (4) dt.23-07-2014

33. It is not in doubt that Surendra Mahto, respondent no. 13 had 80.22 % marks and was the best candidate in all the categories and, therefore, as per the Government rules of reservation and roster, the first post of General Category had to go to him. That could have left the Panchayat to appoint one more person from the General (Male) Category and another person in the General (Female) Category. Now, there is no doubt that the second best candidate from all the categories was the petitioner Sohan Mahto who had 69.22 % marks and, therefore, the second post of General(Male) Category was to go to the writ petitioner Sohan Mahto. The third vacancy being of General (Female) Category obviously on account of the petitioner Kumari Anju having 67.88 % marks had to be filled up by her appointment.

34. The moment these three posts, which were actually being claimed and still held by the respondent nos. 14, 15 and 16 would get filled up by way of appointment of Surendra Mahto, Sohan Mahto and Kumari Anju, two vacancies, which were left out, being only of reserved category, namely, of Extremely Backward Category and Backward (Female) Category, none of the three respondent nos. 14, 15 and 16 belonging to that category can be appointed or retained. Therefore, their service also cannot be retained if the merit list has to be strictly followed by giving effect Patna High Court MJC No.1044 of 2014 (4) dt.23-07-2014 to the Government policy of reservation and roster.

35. The reliance placed by learned counsel for the respondent nos. 14 to 16 on the judgment of Md. Sami Uddin (supra) is misplaced as it is per incuriam as this Court in that judgment has not taken into consideration the scheme of preparation of merit list under Rule 9 of the 2006 Rules which reads as follows: 9- fu;kstu dh izf(cid:216);k& (i) jkT; ljdkj iz[k.M f’k{kdksa ds fu;kstu gsrq le;≤ ij iapk;r lfefr dks rFkk iapk;r f’k{kdksa ds fu;kstu gsrq xzke iapk;rksa dks inksa dh la[;k miyC/k djk;sxhA (ii) iapk;r lfefr@uxj iapk;r }kjk dksfVokj iz[k.M f’k{kd rFkk iapk;r f’k{kd ds fjDr inksa dh lwpuk dk izdk’ku iwjs iz[k.M@iapk;r esa de&ls&de 15 fnuksa rd ds fy, fd;k tk;sxkA (iii) fofgr izi= …vuqlwph&1‰ esa vkosnu i= iz[kaM f’k{kd ds fy, iz[kaM f’k{kk izlkj inkf/kdkjh ds ;gk¡ rFkk iapk;r f’k{kd ds fy, xzke iapk;r ds lfpo ds ;gk¡ izkIr fd;k tk;sxkA izkfIr ds ckn rqjUr ,d izkfIr jlhn nh tk;sxh@Hksth tk;sxhA (iv) iz[k.M f’k{kd ds fu;kstu gsrq iSuy& …d‰ iz[k.M f’k{kd ds fu;kstu gsrq iSuy iz[k.M&Lrj ij iapk;r lfefr ds izeq[k dh v/;{krk esa xfBr iapk;r lfefr ds }kjk es/kk vadksa ds vk/kkj ij rS;kj fd;k tk;sxkA es/kk vadksa dh x.kuk fuEu izdkj dh tk;sxh& …1‰ eSfV“d@mPprj ek/;fed@b.VjehfM;V&izkIrkad dk izfr’kr …2‰ nks o"khZ; izf’k{k.k@ch0,y0,M0&izkIrkad dk izfr’kr ijUrq ;fn dksbZ vH;FkhZ o"khZ; izf’k{k.k rFkk ch0,y0,M0@ch0,M0@lh0ih0,M0 dh fMxzh izkIr fd;k gks rks muds }kjk nkok fd;s x;s fdlh ,d izf’k{k.k ds izkIrkad ds izfr’kr dks es/kk vad esa tksM+k tk;sxkA 1[…[k‰ [k.M …d‰ ds 1 vkSj 2 tksM+dj rFkk tksM+ dks nks ls Hkkx nsus ij tks izfr’kr gksxk] ogh vH;FkhZ dk es/kk vad gksxk ; ijUrq fu;e 4 ds mi&fu;e …2‰ esa mfYyf[kr vH;fFkZ;ksa ds ekeys esa 1 o"kZ ;k vf/kd f’k{k.k vuqHko ds fy, 20 vad muds es/kk vad esa tksM+s tk;saxsA] Patna High Court MJC No.1044 of 2014 (4) dt.23-07-2014 …x‰ ijUrq ’kkjhfjd f’k{kk f’k{kd ds fu;kstu gsrq iSuy vyx ls rS;kj fd;k tk;sxkA (v) iapk;r f’k{kd ds fu;kstu gsrq iSuy& …d‰ iapk;r f’k{kd ds fu;kstu gsrq iSuy xzke iapk;r ds eqf[k;k dh v/;{krk esa xfBr lfefr ds }kjk es/kk vadksa ds vk/kkj ij rS;kj fd;k tk;sxkA es/kk vadksa dh x.kuk fuEu izdkj dh tk;sxh& ijUrq ;fn dksbZ vH;FkhZ us nks o"khZ; izf’k{k.k rFkk ch0,y0,M0 nksuksa dh fMxzh izkIr fd;k gks rks muds }kjk nkok fd;s x;s fdlh ,d izf’k{k.k ds izkIrkad ds izfr’kr dks es/kk vad esa tksM+k tk;sxkA 1[…[k‰ [k.M …d‰ ds 1 vkSj 2 tksM+dj rFkk tksM+ dks nks ls Hkkx nsus ij tks izfr’kr gksxk] ogh vH;FkhZ dk es/kk vad gksxk ; ijUrq fu;e 4 ds mi&fu;e …2‰ esa mfYyf[kr vH;fFkZ;ksa ds ekeys esa 1 o"kZ ;k vf/kd f’k{k.k vuqHko ds fy, 20 vad muds es/kk vad esa tksM+s tk;saxsA] (vi) nksuksa Lrjksa ds f’k{kdksa ds fu;kstu gsrq iSuy fuekZ.k ds (cid:216)e esa leku vad izkir gksus ij] ftudh tUefrfFk igys gksxh] mUgsa iSuy esa ¯ij LFkku fu/kkZfjr gksxkA (vii) iSuy fuekz.k gsrq lfefr dk xBu rFkk vuqeksnu& izkIr vkosnu&i= ds vk/kkj ij iSuy dk fuekZ.k fuEufyf[kr lfefr ds }kjk fd;k tk;sxk& (d) iz[k.M f’k{kd ,oa ’kkjhfjd f’k{kk f’k{kd gsrq& (i) iapk;r lfefr ds izeq[k & v/;{k (ii) iapk;r f’k{kd ds fu;kstu gsrq iSuy & lnL; (iii) iapk;r lfefr ds f’k{kk lfefr }kjk p;fur ,d lnL; & lnL; …izeq[k iq:"k gksus ij p;fur lnL; efgyk gksxh‰ (iv) i[kaM f’k{kk izlkj inkf/kdkjh & lnL; ([k) iapk;r f’k{kd gsrq& (i) xzke iapk;r dk eqf[k;k & v/;{k (ii) xzke iapk;r ds f’k{kk lfefr }kjk p;fur ,d lnL; & lnL; …izeq[k iq:"k gksus ij p;fur lnL; efgyk gksxh‰ (iii) iapk;r lfefr dk og lnL; ftuds {ks= dk vf/kdka’k Hkkx ml iapk;r esa iM+rk gks & lnL; (iv) iapk;r vFkok iapk;r ds fudVLFk ek/;fed fo|ky; dk ftyk f’k{kk inkf/kdkjh }kjk euksuhr ,d f’k{kd & lnL; (v) xzke iaapk;r lsod & lnL; lfpo 2[ijUrq mijksDr nksuksa lfefr;ksa esa p;fur lnL; dk dk;Zdky ,d o"kZ Patna High Court MJC No.1044 of 2014 (4) dt.23-07-2014 dk gksxkA] fVIi.kh& iapk;r lfefr dh f’k{kk lfefr rFkk xzke iapk;r dh f’k{kk lfefr xfBr ugha gksus dh fLFkfr esa iz[k.M f’k{kk izlkj inkf/kdkjh ds }kjk iapk;r lfefr@ xzke iapk;r ds ,d lnL; lfefr ds lnL; euksfur dj ldsaxsA (viii) iSuy rS;kj gks tkus ij mls lkoZtfud fd;k tk;sxkA fdlh izdkj dh vkif(cid:217)k nsus gsrq ,d lIrkg dk le; fn;k tk;sxkA izkIr vkif(cid:217)k dk fujkdj.k dj iSuy dks vfUre :i fn;k tk;sxkA (iX) iz[k.M f’k{kdksa rFkk iapk;r f’k{kdksa ds fu;kstu gsrq rS;kj iSuy dk vuqeksnu (cid:216)e’k% iapk;r lfefr ,oa xzke iapk;r ds }kjk fd;k tk;sxkA (x) p;fur vH;fFkZ;ksa dks bfPNr fo|ky;ksa esa fu;kstu es/kk ds vk/kkj ij rS;kj iSuy ds vuqlwph AA esa vafdr izkFkfedrk ds vojksgh&(cid:216)e esa mijksDr lfefr }kjk dkmfUlfyax ds vk/kkj ij fd;k tk;sxkA 1[ijUrq iz[k.M f’k{kd ds inLFkkiu esa bl ckr dk /;ku j[kk tk;sxk fd Lukrd ;ksX;rk/kkjh f’k{kdka dk inLFkkiu e/; fo|ky; esa gks ftlesa ls U;wure nks f’k{kd foKku ds gksaA Lukrd ;ksX;rk/kkjh foKku f’k{kd ugha feyus ij bUVj ;ksX;rk/kkjh foKku f’k{kd dk inLFkkiu ds vk/kkj ij fd;k tk;sxkA] (xi) p;fur vH;FkhZ dks fu;kstu i= …vuwlwphAAA‰ Hkstk tk;sxkA lgefr&i= ds vk/kkj ij ;ksxnku Lohd‘r fd;k tk;sxkA

36. A bare reading of Rule 9(v), (vi) and (x) of Panchayat Teacher Appointment Rules 2006 will leave nothing for speculation that preparation of panel is strictly on merit based on marks obtained in academic and teaching teachers examination and appointment has also to be made on the basis of merit position in the panel.

37. Thus a merit list based on marks in academic examination cannot be held to be not based on merit. Thus, whatever was said in the case of Md. Sami Uddin (supra) without Patna High Court MJC No.1044 of 2014 (4) dt.23-07-2014 specific reference of Rule-9 of Panchayat Teachers Appointment Rules 2006 has to be essentially held per incuriam.

38. That apart the case of Sami Uddin (supra) was related to post of Panchayat Shiksha Mitra and was not governed by the statutory rules unlike 2006 Rules for appointment of Panchayat Teachers. From reading of the facts of the aforesaid case also it becomes clear that the selection in question involved the post of Panchayat Shiksha Mitra which was governed by executive instructions and the two executive instructions do not provide the same scheme of reservation as has been made in the statutory rule framed in the year 2006 for the post of Panchayat Teachers. Thus, whatever may have been said in relation to preparation of panel of Panchayat Shiksha Mitra in the judgment of Sami Uddin (supra) cannot be made applicable also for the post of Panchayat Teacher.

39. In the preparation of panel for Panchayat Teacher, there is consideration on merit on each of the aspect and in fact, the marks obtained by the candidates in various academic examinations plus experience have to be computed. Such preparation of merit list cannot be said to be not qualifying for the purpose of reservation and roster. It would be infact very difficult for this Court to envisage a situation that where the marks Patna High Court MJC No.1044 of 2014 (4) dt.23-07-2014 obtained in academic examination do become the consideration of merit, alike admission in all the educational institutions, the rules of reservation cannot be made applicable only because the merit list is drawn on the basis of marks obtained in academic course.

40. In fact, the entire admission in the academic institutions is being made only on the basis of marks secured by the candidate and, therefore, the strict interpretation of the rules of reservation and roster will always mean that if a merit list is drawn on a prescribed mode even on the basis of marks secured in academic examination, the Government policy of reservation and roster will be applicable. In other words, if a candidate of reserved category gets higher merit point by way of computation of his academic marks and qualifies for a seat or post of General Category, he will definitely be entitled for such seat or post in the General Category (unreserved category). That is how the rules of reservation have been always followed.

41. Considering all these aspects, therefore, this Court does not find the three respondent nos. 14, 15 and 16 have any claim on their merit as against the two writ petitions and Respondent no. 13.

42. The plea of delay in this case will not be relevant because the respondent no. 13 has been before the authorities since Patna High Court MJC No.1044 of 2014 (4) dt.23-07-2014 2009 when he had filed his first case before the Tribunal being Case No. 1242 of 2009 in which the Tribunal had also issued a direction for his counselling and consequential appointment. Respondent no. 13 had belonged to an extremely backward category and had challenged the appointment of one of the petitioners Sohan Mahto but that will not mean that Sohan Mahto would be displaced despite of his having higher marks than the respondent nos. 14, 15 and 16.

43. Let it be noted that these two petitioners had not challenged the appointment of the respondent nos. 14, 15 and 16, and they infact had to ultimately come out to save their appointment because they had admittedly higher marks than respondent nos. 14, 15 and 16.

44. This Court, however, will have no difficulty in accepting the submission of Mr. Singh that if the respondent nos. 14, 15 and 16 primarily on account of non-observance of the Government policy of reservation and roster got appointment and had worked either under the earlier orders of this Court or the present order, they will be entitled for payment of salary for the period they were appointed and worked.

45. In the result, these two writ applications are allowed and the order of the Tribunal without being interfered is Patna High Court MJC No.1044 of 2014 (4) dt.23-07-2014 modified to the extent that the appointment of the petitioners Sohan Mahto and Kumari Anju will not be disturbed and, in fact, it is the respondent nos. 14, 15 and 16 who on account of having lower marks, will have to make place for appointment of respondent no. 13 as also for the continuance of the two writ petitioners.

46. The two vacancies now created on the post of Panchayat Teacher being for reserved category, one for most backward and the other for backward (female) on which none of the three respondent nos. 14, 15 and 16 belonging to general category can have any claim. They infact belong to General Category and therefore the two vacancies will be filled up by new provision made under the 2012 Rules inasmuch as vacancies can have surfaced only now on account of this judgment.

47. The Panchayat Secretary is hereby directed to not only ensure the compliance of the order of the Tribunal by way of appointment of respondent no. 13 on the post of Panchayat Teacher forthwith but also make payment of salary of the respondent nos. 14, 15 and 16 only till today for the earlier work done by them but they shall not continue in service any longer in the light of observations made above in this judgment.

48. It is also clarified that two writ petitioners namely Patna High Court MJC No.1044 of 2014 (4) dt.23-07-2014 Sohan Mahto and Kumari Anju will continue to work on their post of Panchayat Teacher and would get salary both arrear and current for the work done by them.

49. With the aforesaid observation and directions these two writ petitions are disposed of. (Mihir Kumar Jha, J) Sujit/- U