Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.20263 of 2012 ====================================================== Birendra Kumar S/O Jageshwar Yadav Resident of Village- Navtol, P.S- Khutouna, Distt- Madhubani. .... .... Petitioner/s Versus 1. The State of Bihar 2. District Magistrate, Madhubani. 3. District Programme Officer, Madhubani. 4. Panchayat Secretary, Gram Panchayat Raj, Parsahi, East, P.S- Khutouna, District- Madhubani. .... .... Respondent/s ====================================================== Appearance :
Legal Reasoning
For the Petitioner/s : Mr. Jagdish Prasad Singh For the Respondent/s : Mr. Amar Nath Deo Sc26 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 27-09-2013 Heard learned counsel for the parties. The prayer of the petitioner in this writ application is to quash an order dated 20.08.2007 passed by the Panchayat Secretary, Gram Panchayat Raj Parsahi East whereby and whereunder the services of the petitioner on the post of Panchayat Teacher has been terminated. As a matter of fact since the impugned order has been passed some six years back, this Court would not be inclined to look into the matter but having regard to the fact that the petitioner Patna High Court CWJC No.20263 of 2012 (2) dt.27-09-2013 2/6 had earlier filed a writ application being CWJC No. 9212 of 2008 which was stood dismissed for default on 30.08.2011 and, thereafter, restoration application filed by him vide M.J.C. No. 5539 of 2011, has also been dismissed on 10.10.2012 with a liberty to the petitioner to file fresh writ application, this Court will be required to examine the grievance of the petitioner in this writ application which has been filed on 17.10.2012. This Court would therefore not like to non-suit the petitioner on the ground of delay because the petitioner has suffered for a period of six years for reasons for which he cannot be blamed inasmuch as his earlier writ petition and restoration application was dismissed on account of laches on the part of the counsel. Having held so, when this Court has gone into the merit of the case, it has been found that the petitioner was initially engaged as a Panchayat Siksha Mitra on 30.05.2005. His term of appointment was come to an end after eleven months on 30.04.2006. After completion of 11 months, the petitioner was allegedly appointed again on 13.06.2006 as Panchayat Shiksha Mitra. The wording of the order dated 13.06.2006, however, does not inspire much confidence because no employer can insist an employee to join duty on the same day without being aware as to whether the order of such extension of time is being served on the Patna High Court CWJC No.20263 of 2012 (2) dt.27-09-2013 3/6 persons by post. Be that it may, whether the petitioner got the second extensions on the post of Panchayat Shiksha Mitra it remains a fact that the post of Panchayat Shiksha Mitra was abolished as Panchayat Teacher with effect from 01.07.2006 in terms of Rule 20(iii) of the Bihar Panchayat Elementary Teachers (Employment and Service Conditions) Rules, 2006. It is here that the finding of the District Superintendent of Education, Madhubani as approved by the District Magistrate, Madhubani will also come in the play wherein it was found that one person namely Kameshwar Prasad having higher marks to the petitioner was wrongly deprived the appointment on the post of Panchayat Shiksha Mitra by showing him to be overage which led to the engagement of the petitioner as Panchayat Shiksha Mitra. Counsel for the petitioner however submits that the aforesaid Kameshwar Prasad who had higher marks than the petitioner has already got an employment at some other place and he did not opt for such post and at least on that basis the District Magistrate, Madhubani could not have passed an adverse order against the petitioner specially when another complainant namely Punam Kumari had stated that she had no grievance against the engagement of the petitioner as Panchayat Shiksha Mitra./ Panchayat Teacher. Patna High Court CWJC No.20263 of 2012 (2) dt.27-09-2013 4/6 Considering the fact that the Bihar Panchayat Elementary Teachers (Employment and Service Conditions) Rules, 2006 has come into force and there is a specific statutory forum created for redressal of the grievance relating to the service condition of Panchayat Teacher and the fact that the petitioner was removed on 20.08.2007 by describing him as Shiksha Mitra, this Court would find it expedient to ends of justice to give an opportunity to the petitioner to file a complaint before the District Teachers Employment Appellate Tribunal, Madhubani for assailing his order of termination dated 20.08.2007 by impleading all other candidates having higher marks than him including Kameshwar Prasad and Poonam Kumari. This opportunity however has been given to the petitioner under the special facts and circumstances of this case because this Court is not inclined to accept the submission of learned counsel for the petitioner that the Panchayat Secretary who had passed the impugned order had no jurisdiction to pass such order of termination. In this regard, it has to be noted that a Panchayat Teacher has to be appointed under the orders of the Panchayat and as such his removal can also be made by the Panchayat and the Panchayat Secretary has been vested with power to pass an order on behalf of the Panchayat and thus he can Patna High Court CWJC No.20263 of 2012 (2) dt.27-09-2013 5/6 definitely issue the order of termination. The impression of learned counsel for the petitioner that actually it was Block Development Officer who was authorized to terminate the services of the Panchayat Teachers is wholly misconceived because under Rule 18 he had been vested only with the appellate jurisdiction. Thus this Court cannot hold that the order passed by the Panchayat Secretary was without jurisdiction so as to make the writ application maintainable.
Decision
In view of the above this Court is inclined to dispose of the writ application with liberty to the petitioner to file his complaint before the Tribunal and, if the Tribunal finds that removal of the petitioner from the post of Panchayat Shiksha Mitra/Panchayat Teacher was bad, and the petitioner had been validly appointed as Panchayat Shiksha Mitra, and stood absorbed as Panchayat Teacher with effect from 01.07.2006 on account of his being working as Panchayat Shiksha Mitra on 01.07.2006 and that he was the second best candidate and no other candidates having higher marks had any grievance against the appointment of the petitioner, the Tribunal would pass necessary orders. In case the termination of the petitioner is held to be bad by the Tribunal he will be entitled only for payment of salary only from the date, the Tribunal would direct his reinstatement. In other words, if the Patna High Court CWJC No.20263 of 2012 (2) dt.27-09-2013 6/6 petitioner succeeds, he will not be entitled for payment of arrears of salary for the period he had remained out of employment. With the above observation, this writ petition is disposed of. Ashwini/- (Mihir Kumar Jha, J)