IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.87 of 2014
In
Civil Writ Jurisdiction Case No.4386 of 2012
Ram Ekwal Paswan Son of Late Janaki Paswan Resident of Village –
Nagwan, P.S. Naubatpur Distt. Patna
… … Appellant/s
Versus
1. The State of Bihar and Ors
2. The Director, Primary Education, Govt. of Bihar, Patna
3. The District Magistrate, Patna
4. The District Superintendent of Education, Patna
5. The Block Education Officer, Naubatpur, P.S. – Naubatpur, District – Patna
6. The Mukhiya Gram Panchayat Raj Ibrahimpur, P.S. – Naubatpur, District –
Patna
7. The Panchayat Secretary Gram Panchayat Raj Ibrahimpur In The Naubatpur
Block, P.S. Naubatpur, Dist
… … Respondent/s
Appearance :
For the Appellant/s : Mr.Dhananjay Kumar
Mr. Srikant Pandey
For the Respondent/s : Mr.Pushkar Narain Shahi, AAG 6
Mrs. Shilpa Singh, GA 12
Mr. Ranjan Kumar, AC to G A 12
CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
and
HONOURABLE MR. JUSTICE PRABHAT KUMAR JHA
and
HONOURABLE JUSTICE SMT. NILU AGRAWAL
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH)
Date : 20-06-2019
Heard learned counsel for the parties.
The genesis of the constitution of the instant
Full Bench lies in the order dated 22.4.2016 passed by a
Division Bench of this Court in the present appeal, which arises
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
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out of C.W.J.C. No. 4386 of 2012, noticing two conflicting
views in Division Bench judgments on the point of prospective
or retrospective application of the circular, dated 4.7.2008,
issued by the Human Resources Department, Government of
Bihar, prescribing the acquisition of intermediate qualification
for being engaged as Shiksha Mitra within 33 months of the
date of engagement. The order of reference dated 22.4.2016
reads as follows:
“Learned counsel for the appellant
relies upon Division Bench Judgment in L.P.A.
No. 1247 of 2009 (The State of Bihar Ors. Vs.
Indu Devi) and in L.P.A. No. 1470 of 2010 (Shashi
Kant Vs. The State of Bihar Ors.).
In the aforesaid judgments, a view
has been taken that qualification of Intermediate is
necessary within 33 months from the date of
issuance of the Circular dated 04.07.2008 and not
from the date of initial appointment.
On the other hand, learned counsel
for the respondents refers to two Division Bench
judgments in C.W.J.C. No. 7719 of 2010
(Bhagwan Mahato Vs. The State of Bihar Ors.)
and in C.W.J.C. No. 11620 of 2010 (Sakita
Kumari Vs. The State of Bihar Ors.), wherein, it
has been held that the qualifications must be
obtained within 33 months of joining.
In C.W.J.C. No. 7719 of 2010,
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view taken by the learned Single Bench in Indu
Devi’s case was not found to be a correct view.
Such Division Bench judgment, passed on 19 th of
January, 2011, was not brought to the notice of the
L.P.A. Bench hearing appeal against the order in
Indu Devi’s case, referred to by the counsel for the
appellant.
Another Division Bench in CWJC
No. 11620 of 2010 has taken the same view as in
Letter Patent Appeal in Indu Devi’s case. But the
judgment of the Division Bench dated 19 th of
January, 2011 was also not brought to the notice
of the Division Bench.
We find that two contradictory sets
of judgments have been brought to our notice, one
taking a view that 33 months is the period of
acquiring Intermediate qualification from the date
of the circular; whereas, other judgment says that
33 months are required from the date of
appointment, therefore, to resolve the conflict
between the two sets of judgment, we deem it
appropriate to refer the matter to the larger Bench.
We request the Acting Chief Justice
to constitute a larger Bench to decide the
controversy involved in this case.
Learned counsel for the appellant is
directed to file an extra copy of the paper-book to
facilitate the hearing of the matter by the larger
Bench.”
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Consequently, under the administrative minutes
of Hon’ble the Chief Justice dated 7.2.2019, the present Full
Bench has been constituted to deliberate on the reference.
In order to appreciate the issue involved, it is
relevant to catalogue the factual matrix in chronological order.
The State of Bihar, in order to fulfill its constitutional
obligation of ‘Education to All’, particularly, to the students of
Primary schools in the Panchayats, envisaged the engagement
of teachers known as ‘Shiksha Mitra’ on contract basis for 11
months. The said concept was initially introduced vide
Resolution No.336 dated 21.6.2002 issued by the Primary and
Adult Education Department, Government of Bihar.
Subsequently, the said Resolution was modified
by Circular No. 1458 dated 11.8.2004 issued by the Primary
and Adult Education Department, Government of Bihar.
Further, vide Clause (8) of Resolution No.8/3-
122/03-845 dated 7.4.2005, certain modifications were made
with regard to the criteria of selection, wherein it was
prescribed that preference for selection as Panchayat Shiksha
Mitra would firstly be given to such candidates with minimum
educational qualification of Intermediate or equivalent and
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
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Diploma in Education/B.Ed Trained and that the merit list
would be prepared on the basis of candidates with maximum
marks, as per Schedule- ‘ka’. Thereafter, in case of non-
availability of candidates with Diploma in Education/B.Ed
Trained, or in case of vacancies remaining unfilled, then merit
list would be prepared on the basis of candidates with
minimum qualification of Intermediate, in accordance with
Schedule ‘kha’. Subsequently, vide Letter No. 8/93-122/03-
672, dated 21.4.2005, some clarification were made on the
issue of selection of Panchayat Shiksha Mitra.
Ultimately, the Human Resources Development
Department, in exercise of the provisions of SectionArticle 243-G of
the Constitution of India read with Section 146 of the Bihar
Panchayat Raj Act, 2006, framed Bihar Panchayat Elementary
Teachers (Employment and Service Conditions) Rules 2006
(hereinafter referred to as ‘Rules, 2006’), which envisages,
inter alia, permanent employment of elementary teachers in the
Panchayats known as Panchayat Teachers instead of
engagement of Shiksha Mitra on contractual basis for 11
months.
The said Rules, 2006 was amended by the Bihar
Panchayat Primary Teacher (Employment and Service
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Condition)(Amendment) Rules, 2008 (hereinafter referred to as
Rules, 2008) vide Notification dated 25.8.2008. Before the
amendments were introduced in 2008, the Resolution in
question dated 4.7.2008 was issued by the Human Resources
Development Department, Government of Bihar, in pursuance
to the judgment dated 12.2.2008 passed in LPA No. 940 of
2007 (Kishori Prasad Vs. State of Bihar and Ors.) reported in
2008(2) PLJR 458, whereby the Government decided that the
persons who were engaged on the basis of matric qualification
and who had, within 33 months of their engagement, acquired
the qualification of intermediate or those who were having
intermediate qualification from before, even though they had
not secured 45% marks, would be deemed to be engaged as
Shiksha Mitra as on 1.7.2006 and they would acquire the status
of Block/ Panchayat Teacher under 2006, Rules. The
prospective or retrospective operation of the said Circular dated
04.07.2008 is the point of reference before this Full Bench.
It is to be noted that as per Clause 4 (Ka) of
Circular dated 21.06.2002, the basic requisite for being
engaged as Shiksha Mitra was that applicant should be a
resident of the Panchayat. Clause 4(Kha) prescribed
qualification for being engaged as Shiksha Mitra as
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
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matriculation or passing of the equivalent examination with
minimum 45% marks and for the Urdu subject, passing of
Fokania from any institution recognized by the Madarsa
Education Board or the Government of Bihar. On first January
of the year of engagement, the maximum age of applicant
should have been 30 years, with relaxation of two years for
backward and extremely backward candidates, three years for
women candidates and five years relaxation for SC/ST
candidates. Clause 8 (Ka) prescribed the engagement to be on
contractual basis, while Clause 8(Kha) mandated that
engagement would be for eleven months excluding the period
of summer vacation. Clause 8 (Ga) prescribed that Shiksha
Mitra would be entitled to honourarium of Rs. 1,500/- per
month, Clause 8 (Cha) prescribed that engagement of 11
months could be made for maximum of three terms, i.e.,
11×333 months.
The Resolution dated 21.06.2002 was modified
vide Resolution no. 1458, dated 11.08.2004 Clause 5(Kha)
altering the minimum educational qualification for engagement
as Shiksha Mitra from matric to intermediate or equivalent with
minimum 45% marks and for Urdu subject, intermediate with
Urdu or passing of Maulvi examination from institution
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recognized by Madarsa Education Board and State
Government, was made compulsory. Clause 3 of the Resolution
dated 11.08.2004 prescribed that a Panchayat would, as far as
possible, try to fill up 50% of the vacancies of Shiksha Mitra by
female candidates. Clause 5(Ga) allowed relaxation for the
female candidates and provided that if female candidates
having minimum intermediate qualification were not available,
then the female candidates having matriculation and equivalent
qualification would be engaged with a condition that they
would acquire qualification of intermediate within three years.
While allowing relaxation to such candidates, the District
Magistrate was to send a proposal to the State Government and
the State Government to the NCTE, for necessary relaxation.
Clause (Kha) and (Ga) of Clause 5 of resolution dated
11.08.2004 read as follows:-
“(5) iapk;r f”k{kk fe ds vuqca/k ij
fu;kstu gsrq fuEu vgrkZ fu/kkZfjr dh tkrh gS
(d)…………………
([k) U;wure bUVjehfM,V vFkok blds
led{k ijh{kk esa mrh.kZrk rFkk mDr ijh{kk esa U;wure 45
izfr”kr vad j[kh tk,xhA mnwZ fo’k;d inksa ds fy,
bUVjfefM;V mnwZ lfgr ;k enjlk f”k{kk cksMZ ,oa jkT; ljdkj
)kjk ekU;rk izkIr laLFkkvksa ls **ekSyoh** ijh{kksrh.kZ dh ;ksX;rk
vfuok;Z gksxhA
(x) iapk;r ds vUrxZr bUVjehfM;V
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;ksX;rk/kkjh efgykvksa ds miyC/k ughsa gksus dh fLFkfr essa ममटटट क
vFkok led{k ;ksX;rk/kkjh efgykvksa dk fu;kstu ftyk
inkf/kdkjh dh vuqefr ysdj bl “kRkZ ds lkFk dh tk ldsxh
fd vH;FkhZ rhu o’kZ ds vanj bUVjehfM;V vFkok led{k
“kSf{kd ;ksX;rk izkIRk dj yssaxsA ,sls lHkh mEehnokjksa dh vuqefr
nsus ds lkFk ftyk inkf/kdkjh jkT; ljdkj dks izLrko Hkstsaxas
vkSj jkT; ljdkj ररषटषय v/;kid f”k{kk ifj’kn fofu;eu] 2001
ds fu;e 5 ds vUrxZr ररषटषय v/;kid f”k{kk ifj’kn ls
f”kfFkyrk izkIr djsxhA”
The implementation of aforesaid resolution
dated 11.08.2004 resulted in some confusion with regard to
eligibility criteria and other ancillary issues. The Department
was being confronted with various queries on the point of the
meaning of ‘recognized institution’, ‘requirement of submission
of fresh application under the new resolution’, ‘requirement of
candidate being the resident of the Panchayat for which he is
being sought to be engaged’, meaning of ‘trained teachers’ and
the ‘impermissibility of extension/renewal of those Panchayat
Shiksha Mitras who were having only matriculation
qualification’.
The Human Resources Department vide letter
no. 8/93-122/03-672, dated 21.04.2005 issued guidelines to the
jurisdictional officers which is being extracted for ready
reference. Question Nos. 7 and 8 and the clarification thereto
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
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by the department is relevant for the present reference to be
answered which are being reproduced hereinbelow:-
” fcgkj ljdkj ekuo lalk/ku fodkl
foHkkx] izs’kd fot; izdk”k] lfpo] izkFkfed ,oa O;Ld f”k{kk]
fcgkj] iVukA lsok esa] lHkh ftyk inkf/kdkjh] lHkh ftyk f”k{kk
v/kh{kd ,oa lHkh ftyk dk;ZØe leUo;d] ikad
8@93122@03672] fnukad % 21-04-2005
fo’k; % iapk;r f”k{kk fe ¼vuqca/k ij
fu;kstu½ ekxZnf”kZdk ds vuqlkj iapk;r f”k{kk feksa ds
fu;kstu ls lacaf/kr dqN foUnqvksa dk Li’Vhdj.kA
funs”kkuqlkj mi;ZqDr fo’k;d fnukad 16-04-
2005 dks ftyk f”k{kk v/kh{kdksa dh jkT; Lrjh; ekfld cSBd
esa mBk, x;s foUnqvksa dk lE;d fopkjksijkUr fuEu izdkj
Li’Vhdj.k fd;k tkrk gS%
1—-
2—-
3—-
4—-
5—-
6—-
7- iwoZ ls fu;ksftr iwoZ ls fu;ksftr iapk;r f”k{kk feksa esa
iapk;r f”k{kk feksa esa lsa ftudh “kSf{kd ;ksX;rk ममटटट क ;k
ls eSfVªd mÙkh.kZ led{k gS muds vuqca/k dk foLrkj
iapk;r f”k{kk feksa ugha fd;k tk,] D;ksafd vc iapk;r
ds vuqca/k dk foLrkj
fd;k tk;sxk ;k f”k{kk feksa dh fu;qfDr dss fy, U;wure
ugha? “kSf{kd vko”;drk baVjehfM,V gSA
larks’kizn lsok gksus ij dsoy
baaVjehfM,V (;k led{k) vFkok blls
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
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vf/kd ;ksX;rk/kkjh iapk;r f”k{kk feksa
ds vuqca/k dk gh foLrkj fd;k tk,A
8- U;wure 50 Lkjdkj ds ladYi la[;k 1458 fnukad
izfr”kr efgykvksa dk 11-8-2004 dh dafMdk 3 ,oa 5 ¼x½ ds
fu;kstu fd;k tkuk vuqlkj iapk;r f”k{kk feksa ds vuqca/k
gSA bldh x.kuk ij fu;kstu esa ;Fkk laHko u;wure 50
fdl izdkj dh izfr”kr LFkkuksa ij efgykvksa dk
tk,xh? fu;kstu fd;k tkuk gSA iapk;r
vUrxZr bUVjehfM,V ;ksX;rk/kkjh
efgyk mEehnokj ugha feyus dh fLFkfr
esa eSfVªd vFkok led{k ;ksX;rk/kkjh
efgykvksa dk fu;kstu] ftyk
inkf/kdkjh dh vuqefr ys dj bl “krZ
ds lkFk fd;k tk ldsxk fd vH;FkhZ
rhu o’kZ ds vUnj bUVjehfM,V vFkok
led{k ;ksX;rk izkIr dj ysaxsA
efgykvksa ds fu;kstu gsrq fjfDr;ksa dh
x.kuk ds fy, fuEufyf[kr izfØ;k
viuk;h tk,%
¼i½ loZ izFke lacaf/kr xzke
iapk;rksa }kjk xzke iapk;r esa
fu;qfDr fd;s tkusokyh iapk;r f”k{kk
feksa dh fjfDr;ksa esa 50%
fjfDr;k¡ iapk;r f”k{kk fe ¼efgyk½ ,oa
“ks’k 50% fjfDr;k¡ iapk;r f”k{kk fe
¼iq#’k½ ds uke ls forfjr dh tk,xhA
fo’ke la[;k jgus ij vfrfjDr in
iapk;r f”k{kk fe ¼efgyk½ ds fy,
fpfUg~r fd;k tk,xkA mnkgj.k ds fy,
;fn fdlh iapk;r esa 6 iapk;r f”k{kk
fe ds fjfDr;k¡ gSa rks 3 iapk;r f”k{kk
fe ¼efgyk½ ,oa 3 iapk;r f”k{kk fe
¼iq#’k½ ds fy, j[kk tk,xkA ij ;fn
fdlh iapk;r esa 7 fjfDr;k¡ gksrh gSa rks
4 iapk;r f”k{kk fe ¼efgyk½ rFkk 3
iapk;r f”k{kk fe ¼iq#’k½ ds fy,
fjfDr;k¡ fu/kkZfjr dh tk,¡A
¼ii½ efgyk iapk;r
f”k{kkfe ,oa iq#’k iapk;r f”k{kkfeksa
ds fy, vyxvyx vkj{k.k jksLVj
fu/kkZfjr fd;k tk,xk ftlds izi dk
uewuk fuEufyf[kr gS%
¼d½ iapk;r f”k{kk fe ¼efgyk½ dk jksLVj
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Øe iapk;r f”k{kkfe vkj{k.k dksfV fu;qDr O;fDr
la[;k ¼efgyk½ dk dk uke
yxkrkj
1- 1 vukjf{kr
2- 2 vR;ar fiNM+k oxZ
3- 3 vukjf{kr
4- 4 vuqlfpr tkfr
5- 5 vukjf{kr
6- 6 fiNM+k oxZ
7- 7 vukjf{kr
¼d½ iapk;r f”k{kk fe ¼iq#’k½ dk jksLVj
Øe iapk;r f”k{kkfe vkj{k.k dksfV fu;qDr O;fDr
la[;k ¼iq#’k½ dk dk uke
yxkrkj
1- 1 vukjf{kr
2- 2 vR;ar fiNM+k oxZ
3- 3 vukjf{kr
4- 4 vuqlfpr tkfr
5- 5 vukjf{kr
6- 6 fiNM+k oxZ
7- 7 vukjf{kr
The above question nos. 7 and 8 reflect that one
of the categorical questions was as to whether the contract of
those Panchayat Shiksha Mitras who were engaged from before
and were having only Matriculation qualification could be
given the extension/renewal for the next term or not. To this,
the Department categorically answered in negative and it was
directed that under no circumstance, the contract should be
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
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extended or renewed in connection with those Panchayat
Shiksha Mitras who were having the qualification of
matriculation only, in as much as the requisite qualification for
engagement as Panchayat Shiksha Mitras had been raised from
matric to that of Intermediate. It was further clarified that the
contract of those Panchayat Shiksha Mitras who were having
Intermediate qualification and were working from before could
be extended only upon being satisfied with regard to
satisfactory discharge of their duties.
The question no.8 as quoted above, dealt with
the manner in which the representation of 50% of women
candidates as Panchayat Shiksha Mitras in any Panchayat could
be ensured. Taking note of the Resolution No. 1458 dated
11.08.2004 with special Reference to Clause 3 and 5(ga), it was
clarified that as far as possible there should be at least 50%
representation of the women candidates and in the event of
non-availability of qualified women candidates (i.e.
intermediate pass), it was open for the authorities to engage
those women candidates who had matriculation qualification
or equivalent, as noted above. The said relaxation was,
however, subject to the approval of the District Magistrate and
this engagement was further subject to a condition that the
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Candidate would be acquiring the requisite qualification of
Intermediate within 3 years of her engagement.
It is this relaxation in favour of women
candidates, which has been misconstrued to have been made
applicable to all applicants, male or female due to wrong
submission of learned counsel for the parties and concession to
that effect made by learned counsels for the State led to passing
of the conflicting judgements referred in the reference.
It is evident on conjoint reading of question nos.
7 and 8 and clarification/guidelines issued by the department in
response thereto, with regard to engagement of Panchayat
Shiksha Mitra, that the eligibility criteria for engagement as
Panchayat Shiksha Mitra was raised from Matric to
Intermediate, though the nature of engagement remained
contractual. Neither extension nor renewal was accorded to
those Panchayat Shiksha Mitras who were engaged and were
working in terms of Resolution dated 21.06.2002, but were
having only Matriculation qualification.The re-
engagement/extension of those candidates who were already
working and were having Intermediate qualification were also
subject to the satisfactory discharge of duty by them during
their earlier tenure.
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An exception in favour of women candidates
was, however, carved out in the endeavour to ensure the
representation of 50% Women Shiksha Mitra. It was provided
by way of an exception that in the event of non-availability of
adequate number of women candidates having Intermediate
qualification, the candidates who were having Matric
qualification could be engaged as Panchayat Shiksha Mitras but
subject to approval by the District Magistrate and upon a
condition that the candidates so engaged would be acquiring
the qualification of Intermediate within three years, as
Intermediate was the requisite qualification. Meaning thereby,
that for male candidates there was no relaxation, hence no
opportunity to acquire the requisite qualification in the course
of engagement and only those candidates could have been
directly engaged/allowed to be re-engaged on the basis of their
earlier engagements, who had the qualification of Intermediate.
Apparently the exception and relaxation was provided in favour
of women candidates only and that too conditionally.
Therefore, it can be safely concluded that for the
absorption/renewal of contract of already working Panchayat
Shiksha Mitra and for fresh engagement of Panchayat Shiksha
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Mitras in the male candidates category, the qualification of
having Intermediate qualification was made indispensable. The
relaxation was only in favour of the women candidates.
Clause 8 of the Resolution dated 11.04.2004
was further modified vide Resolution dated 07.04.2005 which
suggested that for engagement of Shiksha Mitra, first of all
minimum Intermediate or equivalent qualification with
Diploma in Education/ B. Ed. trained would be given
preference and a comparative merit list would be prepared in
accordance with the Schedule (Ka). In case of the vacancies
being not filled up by trained candidates, a separate merit list
was to be prepared on the basis of weightage prescribed under
Schedule (Kha). Clause 8 of the resolution reads as follows:-
“fcgkj ljdkj] ekuo lalk/ku fodkl
foHkkx] lfpo] izkFkfed ,oa o;Ld f”k{kk foHkkxA ladYi
Kkikad@8o3122@03845] fnukad% 7-4-2005
iapk;r f”k{kk fe ¼vuqca/k ij fu;kstu½
ekxZnkf”kZdk ¼la”ksf/kr½ dh df.Mdk ¼8½ esa la”kks/kuA
¼8½ p;u dk vk/kkj
¼i½ iapk;r f”k{kk fe ds fu;kstu gsrq
loZizFke u;wure bUVjehfM;V ¼ ;k led{k½ ,oa fMIyksek
bu ,Mqds”ku@ch0,M0 izf”kf{kr dks izkFkfedrk nh tk,xhA
fofHkUu “kS{kf.kd ;ksX;rkvksa ds vH;fFkZ;ksa ds fy, vuqlwph **d**
ds vuqlkj es/kk lwph rS;kj dj vf/kdre vad ds vH;FkhZ dk
p;u fd;k tk,xkA
¼ii½ fMIyksek bu ,Mqds”ku@ch0,M0
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
17/59izf”kf{kr vH;FkhZ ugha gksus ;k fjfDr;k¡ vo”ks’k jgus ij U;wure
bUVjehfM;V f”kf{kr vH;fFkZ;ksa dh vuqlwph **[k** ds vuqlkj
es/kk lwph rS;kj dj vf/kdre vad ds vH;FkhZ dk p;u fd;k
tk,xkA
ladYi la[;k 1458 fnukad 11-8-2004 dh
vU; lHkh dafMdk,¡ ¼dafMdk8½ dks NksM+dj½ iwoZor jgsaxhACircular dated 11.08.2004 was further modified
and another clause 14 was added vide Resolution no.8(व) 3-
122/03 1748, dated 02.09.2005 which stipulated that in case of
non-availability of candidates having requisite qualification
under reserved category or women category in the Panchayat,
an advertisement would be made at the Block level and
thereafter selection would be made from any of the Panchayats
of the concerned block. Clause 14 was added to the resolution
dated 11.08.2004 giving jurisdiction to the District Magistrate
to make enquiry with regard to engagements of the Shiksha
Mitras and in case of any irregularity being confirmed, the
District Magistrate was authorized to pass appropriate order in
writing to the Gram Panchayat for cancellation of the
engagement and in case the engagement was not cancelled by
the Gram Panchayat, such Shiksha Mitra would be identified
and their honorarium would not be paid.
The engagement of Shiksha Mitra on
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contractual basis in pursuance to Resolution no. 1458 dated
11.08.2004 continued till 2006. In the year 2006, the State of
Bihar in discharge of its obligation under Articles 47 and 48 of
the Constitution of India deriving powers conferred by SectionArticle
243-G of the Constitution of India, read with Section 146 of the
Bihar Panchayat Raj Act, 2006, framed the Rules for
employment of teachers in the elementary schools of rural areas
of the State. These Rules were notified vide Notification No. 3-
02/06-974, dated 01.07.2006 by the Human Resources
Development Department known as Bihar Panchayat
Elementary Teachers (Employment and Service Conditions)
Rules, 2006. As the statement, object, reasons and the
nomenclature suggest, the Rules lay down the procedure for
employment and provide for service conditions of panchayat
teachers. The Rules of 2006, as would be apparent, for the first
time, introduced the word ’employment’ as against the word
‘engagement’ which was in vogue by virtue of the earlier
resolutions holding the field, noted above.
There can be no dispute that the Rules of 2006
having been framed in exercise of power under Section 146 of
the Bihar Panchayat Raj Act, 2006, are statutory in nature.
Rule 2 of the Rules, 2006 defines ‘Primary
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19/59
School’ to mean Government and Nationalized Schools
imparting education up to Vth standard, ‘Middle School’ is
defined to mean Government and Nationalized schools
imparting education for VIIth and VIIIth standard. ‘Elementary
school’ is defined to mean Government and Nationalized
primary and middle schools. Rule 3 of the Rules, 2006
envisages two grades of Panchayat Elementary Teachers-
(i) Block Teacher employed at Block level
(ii) Panchayat Teachers employed at panchayat
level.
Rule 8(A) prescribes the minimum qualification
of Intermediate or equivalent examination passed from
educational institution recognized by the Government for block
teachers. Similar is the qualification for the Panchayat teachers.
Rule 8 of the Rules, 2006 reads as follows:-
“8. For employment-
(A) Eligibility- For Block
Teacher:
1. Should be citizen of India and
habitant of Bihar.
2. Should be higher secondary or
Intermediate or equivalent examination passed
from educational institution recognised by
Government.
3. Should be two years training
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
20/59diploma or certificate from training institution
recognised by NCTE or B.EL-Ed in Elementary
education or B.Ed with Bachelor degree or
equivalent qualification.
Minimum two years certificate
(CPEd) or equivalent qualification for physical
teacher.
But in the first transaction under
this rule those candidtes who acquired matric or
equivalent certificate from school recognised by
the government and acquired two years of teacher
training certificate from training schools/colleges
recognised before commencement of NCTE Act.
For Panchayat Teachers:-
1. Should be citizen of India and
habitant of Bihar.
2. Should be higher secondary or
Intermediate or equivalent examination passed
from educational institution recognised by
Government.
3. Should be two years training
diploma or certificate from training institution
recognised by NCTE or B. EL-Ed in Elementary
education or B. Ed with Bachelor degree or
equivalent qualification.
But in the first transaction under
this rule those candidates who acquired matric or
equivalent certificate from school, recognised by
the government and acquired two years of teacher
training certificate from training schools/colleges
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
21/59
recognised before commencement of NCTE Act.
(B) Age –
The minimum age of the
candidates must be 18 years and the maximum age
be 37 years on the 1st January of the year in which
the candidate is being employed. For SC/ST and
disabled candidates, there will be relaxation of 5
years in the maximum age limit. For BC and OBC
three years and for women candidate in each
category relaxation of 3 years in the maximum
age limit.
But in the first transaction of
employment trained category of Block teacher and
panchayat teachers the maximum age limit will be
relaxed completely.”
Rule 4 (3) gives relaxation in minimum
qualification of Intermediate with regard to ‘reserved category’
candidates. It provides that if Higher Secondary/Intermediate
passed candidates are not available then candidates having
Matriculation qualification may be employed, but they will
have to acquire minimum prescribed qualification within six
years. Rule 4(3) of the Rules, 2006 reads as follows:-
“4. Employment of Panchayat
Elementary Teachers-(1)……
(2)…….
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
22/59
(3) In reserved category if higher
secondary/Intermediate passed candidates
would not be available, secondary examination
(Matriculation) passed candidates may be
employed. But it will be necessary for them to
acquire prescribed qualification within
maximum six years.”
A conjoint reading of Rule 4 and Rule 8 of the
Rules 2006 suggests that minimum qualification for Block
Teachers or Panchayat Teachers is Intermediate and relaxation
has been given only to reserved category candidates for
acquiring prescribed qualification within maximum six years.
Hence, either under the Circular of 2002 or 2004 for
engagement of Shiksha Mitra, no such relaxation in academic
qualification was given to male candidates nor under the Rules
2006, to open category candidates. Rule 9 of Rules, 2006
prescribes the process of direct recruitment of Block and
Panchayat Teachers. Rule 9 is being reproduced here for better
appreciation.
“9 Process of Employment.- (I) The
State Government will provide number of posts from
time to time to panchayat samiti and Gram Panchayat for
employment of Block teachers and panchayat teachers
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
23/59respectively.
(ii) Information regarding categorywise
vacant posts will be advertised within the
block/Panchayat for minimum 15 days by the respective
panchayat samiti/gram panchayat.
(iii) Application form in prescribed
proforma (Annexure-I) will be received by Block
Education Extension Officer for Block teacher and by
the Secretary of Gram Panchayat for panchayat teachers.
Receiving certificate will be issued immediately.
(iv) Panel for employment of Block
teacher:
(A) Panel for employment of Block
teacher will be prepared by the committee constituted
under chairmanship of Pramukh of Panchayat samiti at
block level on the basis of merit points
Merit points will be calculated as follows:
(i) Matric/Higher secondary/Intermediate
percentage of marks obtained.
(ii) Two years training/BEL-Ed/B-
Ed/C.P.Ed certificate-percentage of marks obtained
But if a candidate has acquired two years
of training certificate as well as B.EL-Ed/B-Ed
certificate then the percentage of marks obtained in one
of the training examination, claimed by him will be
added to merit point calculation.
(B) The percentage obtained after adding
1 and 2 and the dividing by two, will be the merit point
of the candidate
(C) in the case of employment of physical
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
24/59
teacher, separate and different panel will be prepared.
(V) Panel for employment of panchayat
teacher:
(A) Panel for employment of panchayat
teacher will be prepared by the committee constituted
under Chairmanship of Mukhiya of Gram Panchayat
Merit points will be calculated as follows:
(i) Matric/Higher secondary/Intermediate
percentage of marks obtained.
(ii) Two years training/BEL-Ed
percentage of marks obtained
But if a candidate has acquired both two
years training certificate and B.EL-Ed certificate then
the percentage of marks obtained in one of the training
examination, claimed by him will be added to merit point
calculation.
(B) The percentage obtained after adding
1 and 2 and the dividing by two, will be the merit point
of the candidate
(VI) In the preparation of panel for
employment of teachers of both level (Block and
Panchayat) if equal merit points obtained by two
candidates, then the older in age will be placed upper in
the panel. In the case of same merit points and same date
of birth the place will be decided through draw.
(VII) Constitution and Approval of
Committee for preparation of panel:
Panel will be prepared on the basis of
application forms obtained by the following Committee:
(A) For Block teacher and physical
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
25/59
teachers:
(i) Pramukh of panchayat samiti-
Chairman
(ii) Executive Officer Panchayat Samit –
Member
(iii) One member elected by education
committee of Panchayat Samiti. (If Pramukh is male
member, the elected member shall be a female)
(iv) Block Education Extension Officer, –
Member Secretary.
(B) For Panchayat teacher:
(i) Mukhiya of Gram Panchayat-
Chairman
(ii) One member elected by EducationCommittee of Gram Panchayat (In case Mukhiya is a
male, the elected member will be female) - Member(iii) The member of Panchayat samiti
whose area covers most of the area of Panchayat -
Member(iv) One teacher from the secondary
school either from to the panchayat or nearer to the
panchayat nominated by the D.E.O. - Member(v) Secretary Gram Panchayat - Member
Secretary.But the term of the elected members of
both the above committees will be one year.Note.- In case of (non-existance) non-
constituent of the Education Committee of panchayat
samiti and Gram panchayat, one member of panchayat
samiti/ Gram Panchayat nominated by the Block
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
26/59Education Extension officer, will be a member of the
Committee.(viii) After preparation, the panel will be
published or make available to the public one week time
will be given for their objection/grievances. Resolving
the grievances obtained, panel will be finalised.(ix) Panel prepared for employment of
Block teachers and panchayat teachers will be approved
by the panchayat samiti and Gram panchayat
respectively.(x) Selected members will be employed
in their willing schools through counseling by the above
committees in decending order of the preference
mentioned in Anusuchi-II from the panel prepared on the
basis of merit.(xi) Employment letter will be given to
the selected candidate (Anusuchi-III).Their joining will be accepted on the
basis of their consent letter."The next mode of entry into block and
panchayat teachers is stipulated in Sectionsection 20(iii) of the
Rules, 2006 by way of absorption of the panchayat
Shiksha Mitras working on 1.7.2006, the day the Rules,
2006 came into force.Rule 20 (iii) of Rules, 2006 reads as
follows:"20. Repeal and savings-(i)......
(ii).....
(iii) But panchayat Shiksha Mitra
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
27/59employed under previous circular, orders,
instruction shall be deemed to have been
employed as panchayat Shikshak under
these rules."A conjoint reading of Rule 9 and Rule 20(iii), of
the Rules of 2006 suggests that there are two modes of entry of
Panchayat teachers - one by direct recruitment under Rule 9
with an exception of compassionate appointment under Rule 10
and another by operation of Rule 20 (iii) which envisages
unconditional absorption of Shiksha Mitras, who were working
on the date of coming into force of Rules, 2006 i.e.,
01.07.2006.
Rule 20 (i) of Rules 2006 stipulates repealing of
all the circulars, orders or instructions issued earlier regarding
employment of elementary teachers in rural areas/ physical
teachers/panchayat Shiksha Mitras from the date of
commencement of Rules, 2006, i.e., with effect from
01.07.2006. Rule 20(ii) is the saving clause and provides,
while repealing all earlier circulars, instructions, resolutions,
that it will not affect the payments and service conditions of the
teachers appointed under the provisions of previous circulars.
Rule 20(iii) stipulates that all Shiksha Mitra employed under
previous Circular, orders, instructions working as on the date of
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
28/59commencement of the Rules i.e., (1.7.2006) shall be deemed to
have been employed as Panchayat Teachers under the Rule,
2006.
The Rules, 2006 was modified by the Rules,
2008 vide Notification no. 7/ 3-02/06 dated 25.08.2008.
Through this amendment, provisions have been made for
preparation of certain panels of trained and untrained teachers
under Rule 4(2) and for weightage to be given to different
categories of teachers. However, after coming into force of the
Rules, 2006, there remained dispute with regard to direct
recruitment of Panchayat/Block teachers. However some of the
Shiksha Mitras who were working on 01.07.2006, the date the
Rules, 2006 came into force got absorbed by operation of Rule
20(iii), whereas employment of some of them was terminated
on the ground that the candidates had not acquired the
Intermediate qualification within 33 months of their
engagement or they had failed to acquire minimum 45% marks
at Intermediate level. Rule 20(iii) did not envisage these two
conditions for absorption of Shiksha Mitra as Panchayat
Teachers, which led to filing of writ applications and
conflicting opinions being formed by different Benches of this
Court, leading to conflicting decisions.
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
29/59Initially one such Shiksha Mitra, Kishori
Prasad, being engaged as Shiksha Mitra on 12.5.2003 in the
Primary School, Makarpur, on the basis of having higher
secondary qualification only, was disengaged by order dated
21.7.2005 since he could not acquire the higher qualification
of Intermediate which was mandated under Government
Circular dated 21.4.2005. The said Kishori Prasad challenged
the same in CWJC No. 15589 of 2006 but the same got
dismissed by the learned Single judge vide order dated
3.10.2007 which came to be challenged in intra-court appeal
being LPA no. 940/2007. A Division Bench of this court relying
upon the submission of the learned counsel for the appellant
that the Government Circular dated 21.4.2005 raised the
qualification of Shiksha Mitra from Matriculation to
Intermediate with a rider that if they acquired the Intermediate
qualification within 33 months of the engagement, they could
continue to work as Shiksha Mitra failing which the services
were liable to be terminated. Since Kishori Prasad's
disengagement was made only within 27 months of his
engagement, his disengagement was quashed and he was
directed to be reinstated with consequential benefits vide
judgment dated 12.2.2008 [SectionKishori Prasad v. State of Bihar and
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
30/59ors.- 2008 2 PLJR 458]. Paragraph nos. 5 and 6 of the judgment
read as follows:
"5. The petitioner has been
appointed on 12.5.2003 as a Panchayat Shiksha
Mitra in the Primary School, Makarpur. He was
holding a certificate of higher secondary which
was the eligibility qualification required then.
Thereafter, vide Government Circular dated
21.5.2005 the qualification for Shiksha Mitra was
raised to Intermediate. Thus while the future
appointment of candidates below Matric was
prohibited and the persons already appointed on
the basis of their qualification of Matriculation
were provided 33 months' time to acquire the
higher qualification prescribed for their further
continuance in service. It was envisaged that
existing Shiksha Mitras, who are not Intermediate
shall obtain such qualification within 33 months,
failing which services of such Shiksha Mitras were
liable to be terminated. Those who acquired such
qualifications were to continue in service.6. Undisputedly, on the date when
the petitioner's services were terminated vide
Annexure 8 dated 21.7.2005, 33 months' time had
not expired since his date of appointment but only
27 months had expired. Before expiry of 33
months from the date of his appointment, the
petitioner had already acquired the qualification of
Intermediate as per the certificate issued on
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
31/5922.9.2005. Apparently on this undisputed fact, the
petitioner's services could not be terminated by
Annexure 8 and said order cannot be sustained."The Rules 2006, whereby, the post of Shiksha
Mitra was abolished was not brought to the notice of the
Division Bench nor this fact was brought to notice, that the
relaxation of acquiring the higher qualification of Intermediate,
within 3 years of engagement, was made only in favour of
women candidates vide Resolution no.1458 dated 11.8.2004
vide clause 5(Ga).
However, consequently the Human Resources
Department, Government of Bihar, by Resolution dated
04.07.2008 came out with a resolution in the light of the
judgment dated 12.02.2008, passed in the case of Kishori
Prasad (supra). The Government decided that all such
candidates who have been engaged on the basis of Matric
qualification and have acquired Intermediate qualification
within 33 months of their engagement or who had acquired
Intermediate from before, even though they had not secured
45% marks, they would be deemed engaged as Shiksha Mitra
from 01.07.2006. The Circular dated 04.07.2008 reads as
follows:
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
32/59"fcgkj ljdkj] ekuo lalk/ku fodkl
foHkkx] izs'kd] izdk"k pUnz flag] la;qDr lfpo] ekuo lalk/ku
fodkl foHkkxA ladYi] Kkikad-7fo189@2000 ek0-2517]
fnuakd% 4.7.2008.fo'k;% ममटटट क ;ksX;rk ds vk/kkj ij iapk;r
f"k{kkfe ds in ij fu;ksftr vH;FkhZ] ftUgksaus fu;kstu dh
frfFk ls 33 ekg ds vUnj bUVjehfM,V dh ;ksX;rk izkIr dj
yh gks] mUgsa f"k{kk fe ,oa iapk;r @iz[k.M in ij fu;ksftr
ij j[ks tkus ds laca/k esaA
fcgkj jkT; esa ladYi la[;k 1079 fnukad
20.6.2012 ds )kjk izFke okj iapk;rksa )kjk jkT; ds
izkFkfed ,oa e/; fon~;ky;ksa dk ifjpkyu fd;k x;k FkkA
rnuqlkj xzke iapk;rksa )kjk jkT; ds izkFkfed ,oa e/;
fo?kky;ksa esa iapk;r f"k{kkfeksa dk fu;kstu fd;k x;kA iqu% o'kZ
2004 esa f"k{kk fe+ ds fu;kstu ls lacf/kr ekxZnf"kZdk esa
la"kks/ku fd;k x;k ,oa ladYi la[;k 1458 fnukad
11.8.2004 ds )kjk la"kksf/kr ekxZnf"kZdk fuxZr dh x;hA
la"kksf/kr ekxZnf"kZdk ds vuqlkj iapk;r f"k{kk fe ds in ij
fu;kstu gsrq vH;FkhZ dh U;qure ;ksX;rk bUVjehfM,V vFkok
blds led{k ijh{kk esa mrh.kZrk rFkk mDr ijh{kk esa U;wure
45 izfr"kr vad fu/kkZfjr fd;k x;kA la"kksf/kr ekxZnf"kZdk ds
vuqlkj iqu% xzke iapk;rska ds )kjk vkoafVr inksa ij iapk;r
f"k{kkfeksas dk fu;kstu fd;kA2. la"kksf/kr ekxZnf"kZdk] 2004 eas bl ckr dk mYys[k ugha
fd;k x;k fd iwoZ dh ekxZnf"kZdk ds )kjk fu;ksftr vH;FkhZ]
ftudk fu;kstu ममटटट क ds vk/kkj ij fd;k x;k Fkk] mudh
vof/k foLrkj ds dze es u;h ekxZnf"kZdk ds izko/kku ykxw gksaxs
vFkok ughaA ftyksa ds )kjk bl fcUnq ij i`PNk fd;s tkus ds
mijkUr foHkkxh; ikad 672 fnukad 21.4.2005 ds )kjk
Li'V fd;k x;k fd **iwoZ ls fu;ksftr iapk;r f"k{kkfeksas esa ls
ftudh "kSf{kd ;ksX;rk ममटटट क ;k led{k gS] muds vuqca/k dk
foLrkj ugha fd;k tk,A D;ksafd vc iapk;r f"k{kk feksa dk
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
33/59fu;qfDr ds fy, "kS{kf.kd vko";drk bUVjehfM,V gSA
larks'kizn lsok gksus ij dsoy bUVjehfM,V (;k led{k) vFkok
blls vf/kd ;ksX;rk/kkjh iapk;r f"k{kk feksa ds vuqca/k dk gh
fcLrkj fd;k tk,**A3. mi;qZDr foHkkxh; i la[;k 672 fnukad 21.4.2005
esa ;g vafdr ugh fd;k x;k fd bUVjehfM,V ;ksX;rk/kkjh
ftUgsa 45 izfr"kr vad izkIr gq, mUgha dk vof/k foLrkj fd;k
tk,A lkFk gh dbZ ftyksa ds ftyk f"k{kk v/kh{kdksa us xzke
iapk;rksa dks ;g funsZ"k fn;k fd ftu f"k{kkfeksa us
bUVjehfM,V dh fMxzh izkIr dj yh gS] mUgsa vOkf/k foLrkj fn;k
tk,A ftyksa ds )kjk ;g Hkh vius i esa 45 izfr"kr U;wure
vad dk mYys[k ugha fd;k x;kA4. izkjafHkd f"k{kd fu;kstu fu;ekoyh 2006 ykxw gksus fd frfFk
fnuakd 1.7.2006 ls fof/kor~ :i ls fu;ksftr ,oa dk;Zjr
iapk;r f"k{kk feksa dks iapk;r f"k{kd feksa dksa iapk;r
@iz[k.M f"k{kd eku fy;k x;kA rRi"pkr iwoZ ds f"k+{kkfeksa
ds fu;kstu ,oa vof/k foLrkj ds laca/k esas vfu;ferrk dh ckr
lkeus vk;h rFkk funZ"k fn;k x;k fd ftu bUVjehfM,V
;ksX;rk vH;fFkZ;ksa us 45 izfr"kr vad izkIr ugha dh Fkh] mudk
vof/k foLrkj ugha fd;k tkuk FkkA vr,o ftyksa esa ftu f"k{kk
feksa dks bUVjehfM,V esa 45 izfr"kr vad izkIr ugha Fkk] mUgsa
lsok ls gVkus dh dkjZokbZ dh x;hA lsok ls gVkus ds vkns"k ds
fo:) ekuuh; mPp U;k;ky; esa dbZ eqdnek Hkh nk;j fd;s
x;sA ekuuh; mPp U;k;ky; ds ,y- ih- ,- cssap ds )kjk
12.2.2008 dks ,y- ih- ,- la[;k 940@2007 esa ikfjr
vksn"k rFkk bl ekeys ij LkE;d fopkjksijkUr ljdkj )kjk
fu.kZ; fy;k x;k fd ममटटट क ds vk/kkj ij fu;ksftr vH;FkhZ
ftUgkssaus fu;kstu dh frfFk ds 33 ekg ds vUnj bUVjehfM,V
dh ;ksX;rk izkIr dj fy;sa gksa vFkok tks iwoZ ls gh bUVjehfM,V
;ksX;rk/kkjh tks (Hkys gh bUVjehfM,V) esa 45 izfr"kr ls de
vad izkIr fd;k gS) os lHkh f"k+{kkfe ds :i essa fu;ksftr ekus
tk,xas rFkk fnukad 1.7.2006 (wrongly printed as
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
34/591.6.2007) ls iapk;r @iz[k.M f"k{kd gks tk,xsa A
vr,o ljdkj ds fu.kZ; ds vkyksd esa iwoZ
fof/kor :i ls fu;ksftr ftu f"k{kkfeksa dks mDr dkj.kksa ls
lsok ls gVk;k x;k gS] os lsok ls gVkus tkus dh frfFk ls
iqufuZ;ksftr ekus tk,xasA
iwoZ esa fuxZr ladYi@vkns"k@funs"k bl gn rd la"kks/ku ekuk
tk;sxkA"It is manifest that the Circular in question dated
4.7.2008 was issued in light of the Division Bench judgment of
this court in Kishori Prasad (supra). While issuing the Circular
dated 4.7.2008 apparently it could not be appreciated that by
operation of the provisions under Rule 20 (i) of the 2006 Rules,
the earlier circular which was being amended, already stood
repealed.
It appears that through the aforesaid Circular,
amendment has been sought not only in the repealed
Circular/Instruction and orders issued for engagement of
Shiksha Mitra which had been repealed by Rule 20(i) of
Rules, 2006 but through this circular a new mode of absorption
of Shiksha Mitra into the category of Panchayat Teachers has
been envisaged by assuming the engagement and continuation
of Shiksha Mitra till 1.7.2006 by way of deeming fiction, and
thereby allowing such deemed Shiksha Mitra to be absorbed as
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
35/59panchayat teacher by operation of Rule 20(iii) of the Rules
2006, which was neither permissible under any repealed
circular providing for engagement of Shiksha Mitra for 11
months, nor the provisions under the Rules, 2006 stipulate as
such.
Hence by an executive circular dated 4.7.2008
not only has an attempt been made to give life to a repealed
Circular having provisions for engagement of Shiksha Mitra
but an attempt has also been made to override the statutory
Rules 2006 by executive instruction and thereby another mode
of entry as panchayat teacher has been opened, contrary to the
provisions under the Rules, 2006 particularly Rule 20(iii).
It is well settled law that executive instruction
cannot override the Rules or the Statute. Executive instructions
can supplement/explain but cannot supplant the statutory rules,
which has been sought to be done through this Circular dated
4.7.2008. Once the statutory rules have been framed, the
appointment can be made only in accordance with the Rules.
Executive powers can be exercised in appropriate cases to fill
up the gap but such instructions cannot and should not supplant
the legal provisions. The decision in the case of J K Public
Service Commission Vs. Dr. Narindra Mohan, (1994) 2
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
36/59Supreme Court Cases 630 may be usefully referred to.
Paragraph 7 reads as follows:
"7. Existence of statutory rules is
not a condition precedent to appoint an eligible
and fit person to a post. The executive power is a
co-executive with legislative power of the State
and under SectionArticle 162, the State can create civil
posts and fill them according to executive
instructions consistent with SectionArticle 14 and Section16 of
the Constitution. It is settled law that once the
statutory rules have been made, the appointment
shall be only in accordance with the rules. The
executive power could be exercised only to fill in
the gaps but the instruction cannot and should not
supplant the law, but only supplement the law. The
Governor exercising the power under proviso to
Section 125 (SectionArticle 309 of the Constitution of
India) made the rules which do not expressly give
the power to the State Government to make ad hoc
appointments. No such rule has been brought to
out notice. No express power was conferred and in
fact cannot be conferred to relax the rules of
recruitment. Having made the rules the executive
cannot fall back upon its general power under
SectionArticle 162 to regularise the ad hoc appointments
under the Rules. Rule 9(3) empowers only to relax
the qualification of age in particular exigencies
which cannot be call in aid to relax the rules of
recruitment. To tide over unforeseen exigencies,
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
37/59power to make ad hoc appointments, may be
visualised as envisaged by Explanation (b) to Rule
4 but it expressly states that by virtue of such
appointment, the ad hoc apointee does not become
member of the service. The Rules precribe direct
recruitment/promotion by selection as the mode of
recruitment which would be done only by PSC or
promotion committee duly constituted and by no
other body. Therefore, ad hoc employee should be
replaced as expeditiously as possible by direct
recruits. A little leeway to make ad hoc
appointment due to emergent exigencies, does not
clothe the executive Government with power to
relax the recruitment or to regularise such
appointment nor to claim such appointments to be
regular or in accordance with rules. Back door ad
hoc appointment at the behest of the power source
or otherwise and recruitment according to rules are
mutually antagonistic and strange bed partners.They cannot co-exist in the same sheath. The
former is in negation of fair play. The later are the
product of order and regularity. Every eligible
person need not necessarily be fit to be appointed
to a post or office under the State, selection
according to rules by a properly constituted
commission and fitment for appointment assures
fairness in selection and inhibits arbitrariness in
appointments. In view of the Explanation (b) to
Rule 4, the ad hoc appointments to any post in any
of the three wings of the services under the Rules
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
38/59are therefore de hors the Rules. Appointments of
Respondents 1 to 6 cannot be held to be in
accordance with the Rules."In the present case, the petitioner-appellant
being aggrieved and dissatisfied with the non-
extension/renewal of his engagement as Panchayat Shiksha
Mitra on contractual basis, preferred a writ application being
CWJC No. 4386 of 2012. The petitioner-appellant was engaged
as Shiksha Mitra in 2003 for 11 months and thereafter he was
re-engaged in 2004, but in 2004 after the qualification of
engagement being enhanced from matric to intermediate with
45% marks vide resolution dated 11.8.2004, he was debarred
from working and marking attendance. However, in support of
such claim, the petitioner-appellant did not bring on record any
document. His second term of engagement expired on
11.2.2005. The petitioner-appellant acquired Intermediate
qualification in 2006, well within 33 months, four months after
his disengagement and hence he claimed his engagement as
Panchayat Shiksha Mitra from 2005 by a deeming fiction, by
virtue of Resolution dated 4.7.2008 and his consequent
absorption by virtue of the said Resolution as Panchayat
Teacher.
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
39/59Learned Single Judge of this Court, taking
judicial notice of the fact that the circular dated 4.7.2008 could
not come in aid of the petitioner to claim a deemed re-
engagement with effect from 2005, has been pleased to dismiss
the writ application vide order dated 12.3.2012.
Seeking exception to the aforesaid order by
which the writ application was dismissed, the petitioner-
appellant preferred intra-Court appeal being LPA No. 87 of
2014. The Division Bench, in course of hearing of the appeal,
was confronted with two different and contradictory lines of
judicial pronouncements by two different Division Benches -
one suggesting the acquiring of intermediate qualification
within 33 months of engagement as Shiksha Mitra and the
other suggesting the prospective application of circular dated
4.7.2008, i.e., within 33 months of the date of circular.
It is submitted by learned counsel for the
appellant that the appellant was initially engaged for 11 months
as Shiksha Mitra and thereafter his engagement was renewed.
In the meantime, by circular dated 11.08.2004, the qualification
for Shiksha Mitra was upgraded to Intermediate with minimum
45% marks, but before expiry of 33 months, the appellant was
disengaged prior to expiry of the term of the engagement on
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
40/5911.02.2005. The appellant acquired Intermediate qualification
in 2006, within 33 months, hence, on the basis of the said
resolution dated 04.07.2008, he should be treated as deemed
Shiksha Mitra. The petitioner-appellant has relied upon a
judgment passed in SectionP. Mahendran and ors. v. State of Karnataka
AIR 1990 SC 405 and SectionA.A. Calton v. The Director of
Education and another AIR 1983 SC 1143, in support of his
submissions.
Mr. Pushkar Narayan Shahi, learned AAG-6
appearing for the respondent submitted that the petitioner-
appellant was disengaged in 2005, whereas the petitioner-
appellant preferred a writ application after seven years in 2012
whereas the post of Shiksha Mitra was abolished in 2006 itself.
Hence, being a fence sitter, the appellant does not deserve any
consideration. Mr. Shahi has relied upon the judgment of State
of U.P. and Others Vs. Arbind Kumar Srivastava and Others,
(2015) 1 SCC 347, wherein it has been held that the normal
rule is that when a particular set of employees is given relief by
a Court, all other identically situated persons should be treated
alike by extending the same benefit, however, subject to the
well recognized exception in forms of laches and delay and
acquiescence and the case of the appellant comes within such
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
41/59exception.
It is further contended that admittedly the
appellant was not working as Shiksha Mitra on 1.7.2006 hence
he could not have been absorbed as panchayat teacher by
operation of Rule 20(iii) of the 2006 Rules.
It is also contended that the validity of the
circular dated 4.7.2008 particularly the retrospective
application with regard to higher qualification of Intermediate
within 33 months of engagement as Shiksha Mitra has been
upheld initially in Kishori Prasad (supra) and subsequently in
CWJC 7719/2010 (SectionBhagwan Mahato v. State of Bihar and
ors.) treating the relaxation of acquiring the higher qualification
within 33 months to be retroactive and not retrospective and
this view was again reaffirmed by a division bench in CWJC
no. 11620 of 2010 (SectionSakita Kumari v. State of Bihar and Ors.)
decided on 24.2.2012.
Subsequent to the case of Kishori Prasad, one
Indu Devi after being absorbed as panchayat teacher by
operation of Rule 20(iii) challenged termination of her
engagement/employment dated 11.2.2009 issued by BDO,
Jandaha on the ground of not acquiring the Intermediate
qualification within 33 months of her engagement as panchayat
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
42/59Shiksha Mitra in compliance of Circular no. 4517 dated
4.7.2008 and thereby challenged the retrospective application
of the said circular. The said writ application was allowed on
4.7.2009 quashing the termination on the ground that the
circular being an executive order cannot be made applicable
with retrospective effect and therefore even if the petitioner had
acquired higher qualification in 40 months instead of 33
months, her engagement could not have been terminated. The
petitioner was directed to be reinstated with all consequential
benefits. Though in spite of the fact that the judgment of
Division Bench was considered by the Learned Single Judge, a
contrary view was taken, as the Division Bench had upheld the
view of acquiring the higher qualification within 33 months.
The said decision was challeneged by the State of Bihar in LPA
no. 1247/2009 ( SectionState of Bihar and Ors. v. Indu Devi) which
was dismissed, affirming the order of the learned Single Judge
on the ground that Rule 20(iii) of the 2006, Rules, by virtue of
which the respondent Indu Devi was absorbed does not
stipulate acquiring of Intermediate qualification within 33
months.
Subsequent to the case of Indu Devi, one
Bhagwan Mahato preferred a writ application bearing CWJC
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
43/59No.7719/2010 for a declaration that he be treated as Shiksha
Mitra on and after 25.7.2005 and consequently be absorbed as a
panchayat teacher by operation of Rule 20(iii) of 2006, Circular
dated 4.7.2008 and the judgment of learned Single judge dated
14.7.2009, passed in CWJC No. 3700 of 2009 ( SectionIndu Devi v.
State of Bihar and Ors.). The learned Single Judge vide order
dated 24.9.2010 referred the writ application to division bench
noticing the conflicting view taken by the learned Single judge
in the case of Indu Devi to the effect that the Circular dated
4.7.2008 has prospective application, to that of the view taken
in LPA no. 940/2007 (Kishori Prasad Vs. State of Bihar and
Ors), wherein, the requirement of acquiring qualification of
Intermediate within 33 months was upheld.
Consequently, the Division Bench decided the
writ application by dismissing the same by holding that the
concession given by the circular dated 4.7.2008 is not
retrospective but retroactive in effect and it does not deprive
anyone of any vested right. Moreover, the retrospective
application of executive orders is permissible only when it
adversely affects the vested right. The Division Bench did not
approve of the view taken by the learned Single Judge in the
case of Indu Devi for the same being against the rule of
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
44/59precedence and contrary to the law laid down in Kishori Prasad
(supra). The Division Bench dismissed the writ application
since the petitioner had failed to acquire the higher
qualification within 33 months of initial engagement as
Shiksha Mitra. The judgment dated 19.1.2011 passed by
Division Bench in CWJC No. 7719 / 2010 ( SectionBhagwan Mahto vs
State of Bihar) however was not brought to the notice of the
Division Bench hearing the LPA no. 1247 / 2009 ( SectionState of
Bihar and Ors. vs Indu Devi), which was disposed of on
9.3.2011, which resulted into a conflicting view being taken by
the Division Bench and as such the order of the learned Single
Judge in the case of Indu Devi was affirmed.
Subsequently, one Sakita Kumari preferred a
writ application, bearing CWJC No. 11620 / 2010 whose
services as panchayat teacher was terminated as she had failed
to acquire the higher qualification within 33 months of
engagement as Shiksha Mitra. She challenged the termination
in view of the relaxation given by the State Government in the
circular dated 4.7.2008 issued pursuant to the Division Bench
judgment in Kishori Prasad, 2008 (2) PLJR 458. Since, the
petitioner relied upon the ratio of Indu Devi (supra), which is
contrary to the view in case of Kishori Prasad (supra), the
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
45/59learned Single Judge referred the matter to the Division Bench.
Thereafter, the Division Bench vide judgment 22.6.2010
disposed of the writ petition by dismissing the claim of the
petitioner since she did not have the minimum qualification of
intermediate within the extended period, in light of Circular
dated 4.7.2008 and followed the view expressed in case of
Bhagwan Mahto v. State of Bihar, CWJC 7719 of 2010,
whereby, the Division Bench had overruled the view taken by
the learned Single Judge in case of Indu Devi (Supra), though
in the reference order, there is an apparent error of record that
the Division Bench in CWJC no. 11620 / 2010 ( SectionSakita Kumari
v. State of Bihar) has taken the same view as in LPA No. 1247
of 2009, SectionState of Bihar and Ors. V. Indu Devi. It appears, on the
other hand, that the said LPA which was disposed of on
9.3.2011 was not brought to the notice of the Division Bench
which disposed of the CWJC No. 11620 / Section2010 Sakita Kumari
vs. State of Bihar on 24.2.2012.
On examination of the two different views
expressed by the two different Division Bench noted above,
coupled with the stipulation in the Circular dated 4.7.2008, it is
manifest that it was not brought to the notice of the Division
Benches that no relaxation of acquiring intermediate
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
46/59qualification was ever given to male candidates. Moreover, the
Circular dated 4.7.2008 was issued by the State Government on
the basis of the judgment passed in case of Kishori Prasad
(Supra) which has been held per incurium by Full Bench of this
Court in SectionKalpana Rani v. State of Bihar 2014(2) PLJR 665,
wherein it has been held that no writ of mandamus can be
issued by appointing a person on an abolished post of Shiksha
Mitra. Paragraph 28 of the judgment reads as follows:
"28. While allowing the said
benefit of improvement of qualification to
one Kishori Prasad (2008(2) PLJR 458] the
Bench failed to appreciate that the benefit of
relaxation in qualification was not extended
to the male candidates. The Bench also did
not notice the factum of abolition of cadre
of Panchayat Shiksha Mitra and the
replacement of the Scheme by the Statutory
Rules of 2006. The judgment in the matter
of Kishori Prasad Vs. The State of Bihar
Ors. (2008(2) PLJR 458] is, therefore, per
incurium and is expressly overruled. The
decision in the matter of Rima Kumari Vs.
The State of Bihar Ors. [2012(1) PLJR
107] is affirmed.The Full Bench has further held that any
judgment which has taken a view contrary to the view
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
47/59expressed by the Full Bench stands impliedly overruled.
Paragraph 29 reads as follows:-
"29. Any judgment which has taken
a view contrary to the above view expressed by us
is impliedly overruled."The Full Bench in the case of Kalpana Rani
(supra) while endorsing the view taken in the judgment dated
23.08.2011 in the case of Renu Kumari Pandey Vs. The State
of Bihar and Others, 2011(4) PLJR 297 held that under Clause
(i) of Rule 20 of Rules, 2006, all earlier resolutions / circulars
issued with regard to engagement of Shiksha Mitra were
repealed. Consequently, the post of Shiksha Mitra was
abolished. Thereafter no person can be employed as Shiksha
Mitra nor can there be a deemed employment of Shiksha Mitra
or the deemed absorption of their services. The above finding
has been recorded in paragraph 17 and 21 of the judgment in
the case of Renu Kumari Pandey (supra) which has been
quoted and adopted by the Full Bench in paragraph no. 22 and
23 of the judgment in Kalpana Rani (supra), which read as
follows:-
"22. The aforesaid Scheme came to
an end with enactment of the 2006 Rules which
came into operation on 1st July, 2006. The scope
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
48/59and ambit of the Rules of 2006, particularly Rule
20 thereof have been discussed in the above
referred matter of Smt. Renu Kumari Pandey. The
relevant paragraphs are reproduced for
convenience:-"10. The Government of Bihar, in
exercise of power conferred by SectionArticle 243-Q of
the Constitution and by Section 146 of the Bihar
Panchayat Raj Act, 2006 framed the Bihar
Panchayat Elementary Teacher (Employment and
Service Conditions) Rules, 2006 (hereinafter
referred to as "the Rules"). Under Rule 3 of the
Rules, the elementary teachers are grouped into
two categories; (a) the Block Teacher (Prakhand
Shikshak) at Block level and; (b) the Panchayat
Teacher (Panchayat Shikshak) at Gram Panchayat
level.11. Rule 2 of the Rules defines
"Primary School" to mean Government and
nationalized schools imparting education up to Vth
standard. "Middle School" is defined to mean
Government and nationalized schools imparting
education for VIIth and VIIIth standard."Elementary School" is defined to mean
Government and nationalized Primary and middle
schools. Rule 8 therefof provides for eligibility for
appointment as Block Teacher and Panchayat
Teacher. Rule 9 thereof provides for procedure for
constitution of selection committee and for
selection and appointment of Block Teachers and
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
49/59Panchayat Teachers. Rule 18 thereof provides for
appeals arising out of selection made under the
Rules.12. Rule 20 of the Rules provides
for repeal and saving. Clause (i) thereof provides,
inter alia, for repeal of all Rules, Resolutions,
Orders and Instructions issued in respect of
employment of Panchayat Shiksha Mitra. Clause(ii) thereof provides for saving of selection and
service conditions of the Panchayat Shiksha Mitra
employed under the Rules, Resolutions, Orders or
Instructions prevalent prior to the date of the
repeal. Clause (iii) thereof provides for absorption
of Panchayat Shiksha Mtra appointed or employed
under the then prevalent Rules, Resolutions,
Circulars, Orders, Instructions as Panchayat
Shikshak under the Rules. In other words, the
Panchayat Shiksha Mitra appinted under the then
prevalent Rules, Resolutions, Circulars, Orders,
Instructions and employed as Panchayat Shiksha
Mitra as on 1st July, 2006 are absorbed as
Panchayat Shikshak under the Rules. It is the
aforesaid Clause (iii) which is the subject matter of
reference before us.16. Clause (iii) of the Rule 20 of
the Rules reflects the policy decision of the State
Government. We are of the considered opinion
that no legal provision can be held to be arbitrary
or discriminatory or ultra vires Articles 14 and 16
of the Constitution on hypothetical set of facts.
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
50/59We, therefore, hold that Clause (iii) of Rule 20 of
the said Rules is neither arbitrary nor
discriminatory nor it is violative of Articles 14 and
16 of the Constitution.17. Coming to the second issue, we
are of the opinion that the Rules are statutory in
nature and have to be imlemented in letter and
spirit. Under Clause (i) of Rule 20 of the Rules all
earlier resolutions, orders, directions issued in
respect of employment of Panchayat Shiksha
Mitra are repealed. Consequently, the posts of
Panchayat Shiksha Mitra stood abolished.
Thereafter, no person can be employed as
Panchayat Shiksha Mitra; nor can there be a
deemed employment as Panchayat Shiksha Mitra;
nor can there be a deemed absorption in the
service as Panchayat Shikshak by operation of
Rule 20(iii) of the Rules. In our opinion, even in a
case where a person has a legitimate grievance in
respect of his or her non-selection as Panchayat
Shiksha Mitra at the relevant time or non-
continuance as Panchayat Shiksha Mitra, such
person cannot be deemed to have been appointed
as Panchayat Shiksha Mitra; nor can he/she be
deemed to have been employed as Panchayat
Shiksha Mitra as on 1st July, 2006; nor can such
person be deemed to have been absorbed in
service as Panchayat Shikshak under the Rules."23. Having considered the scope
and ambit of the Scheme for appointment of
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
51/59Panchayat Shiksha Mitra and the Rules of 2006,
the Bench Held:-"21. All these petitions arise from
the claim made by the respective writ petitioners
for employment as Panchayat Shiksha Mitra under
the then prevalent scheme for selection and
employment of Panchayat Shiksha Mitra under the
Gram Panchayats. None of them was employed as
Panchayat Shiksha Mitra as on 1st July, 2006. As
we have held that from the date of the Rules (1st
July, 2006) such persons have no right to claim
employment or deemed employment as Panchayat
Shiksha Mitra or a right to be absorbed as
Panchayat Shikshak by operation of Rule 20(iii) of
the Rules, the reliefs prayed for by the writ
petitioners cannot be granted."It is relevant to state here that the writ
application preferred by Renu Kumari Pandey (2011) 4 PLJR
297, was referred by the learned Single Judge to the Division
Bench vide order dated 19.09.2007, wherein the validity of the
Rule 20(iii) of Rules, 2006 was under challenge on the ground
that there were several persons who did not prefer to be
engaged as Shiksha Mitra since they were not aware that
ultimately Shiksha Mitra would be absorbed as Panchayat
Teachers, though, in the case of Renu Kumari Pandey (supra)
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
52/59the learned counsel representing the State had pointed out with
regard to the issuance of the Circular dated 04.07.2008, which
has wrongly been printed as 01.07.2008, whereupon the
Division Bench observed that though the said resolution was
passed in pursuance to the judgment of the Division Bench in
the case of Kishori Prasad (supra), but was contrary to Rule
20(iii) of Rules, 2006. However, since none claimed on the
basis of the circular dated 4.7.2008, the Court declined to
express any opinion on the said circular. Paragraph 19 and 20
of Renu Kumari Pandey (supra) read as follows:
"19. In course of hearing, learned advocate Mr.
S.D. Sanjay has produced copy of the Government
Resolution dated 1st July 2008. He has submitted
that under the said Resolution the State
Government has relaxed Rule 20(iii) of the Rules
to the extent that the Panchayat Shiksha Mitra
employed under the then prevalent Government
Resolution dated 20th June 2002 but discontinued
pursuant to the Government Resolution dated 11 th
August 2004 on the ground of eligibility are
deemed to be continued as Panchayat Shiksha
Mitra and are absorbed as Panchayat Shikshak
under the Rules. To us it, prima facie, appears that
the aforesaid Resolution though has been passed
pursuant to the Division Bench Judgment of this
Court in the matter of SectionKishori Prasad v. The State
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
53/59of Bihar Ors.[2008(2) PLJR 458] is contrary to
Rule 20(iii) of the Rules.20. Be that as it may, as none of the
claims before us is based on the said Resolution,
we do not express any opinion on the said
Resolution."However, this is not in dispute that Circular
dated 04.07.2008 was not under consideration before the Full
Bench, but the findings recorded in Renu Kumari Pandey
(supra) with regard to non-engagement of Shiksha Mitra by
deeming fiction has been approved by the Full Bench. The
Division Bench judgment in Renu Kumari Pandey (supra) was
challenged before the Supreme Court in S.L.P.(C) No. 33303 /
2014, which was dismissed by the Supreme Court vide order
dated 9.1.2012 with a liberty to the petitioner to file a review
application before the High Court. Consequently, Civil Review
No. 123 / 2012 was preferred by the petitioner which was also
dismissed by the Division Bench vide order dated 17.12.2012.
It is relevant to state here that an SLP No.34639/2014 was also
preferred against the judgment of the Full Bench in Kalpana
Rani (Supra) which was also dismissed by the Supreme Court
while expunging certain remarks against the learned Senior
counsel for the petitioner. In the above background, the
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
54/59Circular dated 04.07.2008 cannot be held to be valid being in
teeth of the law laid down by the Full Bench in case of Kalpana
Rani (supra) and the fact that through the said circular the
repealed circulars and resolutions have been sought to be
modified and overriding effect has been sought to be given to
Rules, 2006.
So far as L.P.A. No. 1470 of 2010 (Shashi Kant
Vs. the State of Bihar and Others) which was disposed of on
19.05.2015 is concerned, the Full Bench judgment in Kalpana
Rani (supra) was considered and the Division Bench
distinguished it on the ground that in Kalpana Rani case the
circular dated 4.7.2008 was not under challenge whereby the
State Government had taken into account the abolition of the
post of Shiksha Mitra with coming into force of the Rules,
2006, whereby and whereunder by a deeming fiction the
candidates who acquired the qualification of Intermediate were
treated as Shiksha Mitra and consequently absorbed as
panchayat teacher by the operation of Rule 20(iii) of 2006
Rules. Apart from the above distinction, the candidates before
the Full Bench came much after the abolition of the post of
Shiksha Mitra and the Full Bench also dealt with a situation
where persons were wrongly not engaged as Shiksha Mitra.
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
55/59The Division Bench in LPA no. 1470/2010
(SectionShashi Kant v. State of Bihar and Ors.) decided the issue on
the presumption that the relaxation was for both male and
female candidates, but missed to appreciate that no deemed
appointment of Shiksha Mitra could be made since the post had
already been abolished. Hence, in the said case, the petitioner
Shashi Kant was reinstated on the post of panchayat teacher by
virtue of stipulation in Circular dated 4.7.2008 which in my
opinion amounts to making an entry on the strength of an
executive instruction, overriding the statutory rule which
envisages only two modes of entry by Rule 9 and Rule 20(iii)
of Rules, 2006, as noted above.
In view of the Full Bench judgment in Kalpana
Rani's case which held the judgment of Kishori Prasad (supra)
and other similar judgments, as, per incurium on the basis of
which basis the said Circular dated 4.7.2008 was issued, in no
circumstance the said circular can be given effect to.
The distinction between the fiction and
presumption is that fiction assumes something, which is known
to be false, whereas presumption assumes something, which
may possibly be true. In the present case, the deeming fiction
has been created for the applicants on abolished posts which is
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
56/59beyond the circumference of deeming fiction. A useful
reference may be made to the case of Bhuwalka Steel
Industries Limited and Another Vs. Union of India and Others,
(2017) 5 SCC 598. Para 38 reads as follows:
"38. There is a clear distinction in
law between a legal fiction and presumption. "A
distinction commonly taken between the fiction
and the legal presumption runs something as
follows: a fiction assumes something which is
known to be false; a presumption (whether
conclusive or rebuttable) assumes something
which may possibly be true. This distinction is
regarded as being reinforced, as it were, in the
case of the rebuttable presumption because such a
presumption assumes a fact which probably is
true." "Presumptions are closely related to legal
fictions ... but they operate differently". "Fictions
always conflict with reality, whereas presumptions
may prove to be true". Legal fictions create an
artificial state of affairs by a mandate of the
legislature:
"... an assumption of fact deliberately,
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
57/59lawfully and irrebuttably made contrary to
the facts proven or probable ....... with the
object of bringing a particular legal rule into
operation ... the assumption being permitted
by law ..."They compel everybody concerned
including the courts to believe the existence of an
artificial state of facts contrary to the real state of
facts. When a fiction is created by law, it is not
open to anybody to plead or argue that the
artificial state of facts created by law is not true,
barring the only possible course if at all available
is to question the constitutionality of the fiction. It
is settled law that only sovereign legislative bodies
can create legal fictions but not a subordinate law
making body."
Coming to the facts of the present case,
admittedly the appellant was not working as Shiksha Mitra on
1.7.2006 and he challenged his disengagement made in 2005 by
filing writ application in 2012. Hence, he cannot claim parity
with Vimla Devi and Arvind Kumar who were re-engaged in
2005 itself. Moreover, the judgment cited by the learned
counsel for the appellant, as reported in AIR 1983 SC 1143 A.
A. Calton Vs. The Director of Education and Anr. and AIR
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
58/591990 SC 405, P. Mahendran and Ors. Vs. State of Karnataka,
have no application in the facts and circumstances of the
present case.
It is evident that the petitioner appellant had
preferred the writ application claiming relief by virtue of
Resolution dated 04.07.2008 for a direction to treat him as a
Shiksha Mitra since 2005 and as Panchayat Teacher from
01.07.2006.
However, during the course of hearing before
this Full Bench, an I.A. No. 01 of 2019 has been preferred
seeking amendment of prayer, for setting aside the Memo No.
2517, dated 04.07.2008. Such inconsistent stand of the
appellant is beyond the terms of reference and moreover, for
answering the terms of reference, there is no need to deliberate
upon the said I.A. It appears that the ratio of Full Bench in
Kalpana Rani (supra) was not brought to the notice of Division
Bench and in my opinion had the same been brought to the
notice of the Division Bench, the question of referring the
matter to the Full Bench would possibly not have arisen.
In view of the above discussion, it is quite
apparent that the resolution dated 4.7.2008 is based on
judgment of this Court in case of Kishori Prasad (supra) which
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
59/59has been held to be per incurium, the same cannot be given
effect to. Additionally, since the purport of the said resolution is
contrary to the provision of the Rules, 2006, prospective or
retrospective application of the said circular becomes
meaningless.
The reference is answered accordingly.
(Dinesh Kumar Singh, J)
Prabhat Kumar Jha, J. - I agree.
(Prabhat Kumar Jha, J)
Nilu Agrawal, J. - I agree.
(Nilu Agrawal, J)
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