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Ram Ekwal Paswan vs The State Of Bihar And Ors on 20 June, 2019

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,
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
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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.”

Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
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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
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
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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
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
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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
[email protected]@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
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
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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
[email protected]@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”[email protected],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”[email protected],M0
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izf”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 jgsaxhA

Circular 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
Patna High Court L.P.A No.87 of 2014 dt.20-06-2019
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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
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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.

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
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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)…….

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(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
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respectively.

(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
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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
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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 Education

Committee 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
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Education 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
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employed 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
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commencement 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
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Initially 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
30/59

ors.- 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
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22.9.2005. 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
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"fcgkj ljdkj] ekuo lalk/ku fodkl
foHkkx] izs'kd] izdk"k pUnz flag] la;qDr lfpo] ekuo lalk/ku
fodkl foHkkxA ladYi] [email protected] 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;kA

2. 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
33/59

fu;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,**A

3. 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;kA

4. 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 [email protected] 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
34/59

1.6.2007) 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 [email protected]"[email protected]"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
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panchayat 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
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Supreme 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
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power 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
38/59

are 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
39/59

Learned 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
40/59

11.02.2005. 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
41/59

exception.

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
42/59

Shiksha 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
43/59

No.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
44/59

precedence 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
45/59

learned 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
46/59

qualification 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
47/59

expressed 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
48/59

and 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
49/59

Panchayat 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
50/59

We, 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
51/59

Panchayat 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
52/59

the 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
53/59

of 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
54/59

Circular 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
55/59

The 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
56/59

beyond 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
57/59

lawfully 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
58/59

1990 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
59/59

has 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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