Renu Kumari Pandey v. State Of Bihar

R.M Doshit, C.J:— The above C.W.J.C No. 10113 of 2007 has been referred to us by the learned Single Judge under order dated 19th September, 2007 [2008 (1) PLJR 695]. The rest of the writ petitions are placed before us as they are ordered to be heard with the above C.W.J.C No. 10113 of 2007.

2. With the consent of the learned Advocates, the matters are heard and decided at the admission stage. The matter at dispute is the se lection and employment of Panchayat Shiksha Mitra under various Gram Panchayats in the State of Bihar. Before we consider the reference made to us, we would like to discuss the genesis of the matter.

3. The State of Bihar in discharge of its constitutional responsibility and under its policy of “Education for AH”, under its Resolution dated 21st June, 2002 framed the scheme for contractual employment of Panchayat Shiksha Mitra under the Gram Panchayats for primary education in the State of Bihar. The said scheme was later modified by the Government Resolutions dated 11th August, 2004 and 7th April, 2005.

4. Under its Resolution dated 21st June, 2002, the Government of Bihar framed a scheme for selection and employment of Panchayat Shiksha Mitra under the Gram Panchayats in the State of Bihar. The salient features of the said scheme as are relevant for the present set of writ petitions were:—

(i) The District Superintendent of Education was empowered to determine, with the approval of the District Magistrate, the strength of the Panchayat Shiksha Mitra in every district, the ex tent of reservation and the distribution of posts amongst the Gram Panchayats.

(ii) For employment as Panchayat Shiksha Mitra, a candidate shall be a resident of the Panchayat and shall possess a minimum qualification of passing of matriculation or equivalent examination from a recognized Board with minimum 45% marks.

(iii) The employment would be contractual on monthly honorarium of Rs. 1500.00 The contractual period would be 11 months excluding the summer vacation.

(iv) In case of satisfactory service the employment may be extended for a further period of 11 months.

(v) No Panchayat Shiksha Mitra would be employed for more than 11 × 3=33 months.

(vi) The selection would be made in order of merit on the basis of the marks obtained at matriculation examination. In case of equal marks, the trained candidate, the candidate having higher marks or a woman candidate would be given preference in that order.

5. The said Resolution of 2002 was modified by Resolution dated 11th August, 2004. The said Resolution modified the scheme to the extent it provided, inter alia,:—

(i) As far as possible a minimum 50% reservation for women. In case women candidates with prescribed qualification were not available the requirement may be relaxed.

(ii) The candidate must have passed Intermediate examination or an equivalent examination with at least 45% marks.

(iii) In the event in any Panchayat women candidates having Intermediate qualification are not available, women candidates having Matriculation or equivalent qualification may be employed on condition that such candidate will acquire the Intermediate or equivalent qualification within three years'. The District Magistrate was required to make proposal in respect of such candidates to the State Government and the State Government would obtain relaxation under Regulation 5 of National Council for Teacher Education (Determination of Minimum Qualification for Recruitment of Teachers in Schools) Regulation, 2001 from National Council for Teacher Education.

(iv) The selection for employment as Panchayat Shiksha Mitra would be made on the basis of the marks obtained at Intermediate or equivalent examination, higher educational qualification, training and physical training in accordance with the table under Schedule ‘Ka’.

6. Under the Government Resolution dated 7th April, 2005, paragraph 8 of the aforesaid Resolution of 2004 was modified. Paragraph 8 provided for:—

(i) Contractual employment for monthly honorarium of Rs. 1,500/-.

(ii) Termination of contract of employment.

(iii) Re-employment after expiry of the term of employment.

(iv) The Panchayat Shiksha Mitra may be employed for maximum three times each for 11 months period.

(v) The said Resolution also pro vided that the trained persons having Diploma in Education or. B.Ed shall be given preference.

(vi) The comparative merit would be decided in accordance with the schedules ‘Ka’ and ‘Kha’ thereunder.

(vii) In absence of the trained candidates the vacancies be filled-in by operating the merit list “Kha” (untrained candidates).

Schedule ‘Ka’

The weightage to be given for preparation of merit list of trained persons

Sr. No. Qualification 30% to 60% 60% to 75% Above 75% 1. Intermediate 10 15 20 2. Graduate 4 7 9 3. Post Graduate 5 8 10 *4. Trained 5 8 10 **5 Trained in Physical Education 5 8 10

Schedule ‘Kha’

The weightage to be given for preparation of merit list of untrained persons

Sr. No. Qualification 30% to 60% 60% to 75% Above 75% 1. Intermediate 10 15 20 2. Graduate 4 7 9 3. Post Graduate 5 8 10 **4. Trained in Physical Education 5 8 10

7. The note below the aforesaid para graph 7 provided that the weightage being equal; persons with higher qualification be placed higher in the merit list.

8. Certain issues relating to the employment of Panchayat Shiksha Mitra arising under the aforesaid Resolution dated 11th August, 2004 were clarified under Government Resolution dated 21st April, 2005. Clause 7 of the said Resolution provided that the tenure of the Matriculate Panchayat Shiksha Mitra shall not be extended.

9. The Government of Bihar, in exercise of power conferred by Article 243Q 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.

10. 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 Vllth and VIIIth standard. “Elementary School” is defined to mean Government and nationalized primary and middle schools. Rule 8 thereof 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 Panchayat Teachers. Rule 18 thereof provides for appeals arising out of the selection made under the Rules.

11. Rule 20 of the Rules provides for repeal and saving. Clause (i) thereof pro vides, inter alia, for repeal of all Rules, Resolutions, Orders and Instructions is sued 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 Mitra appointed or employed under the then prevalent Rules, Resolutions, Circulars, Orders and Instructions as Panchayat Shikshak under the Rules. In other words, the Panchayat Shiksha Mitra appointed 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.

12. While dealing with the above C.W.J.C No. 10113 of 2007 the learned Single Judge felt that it was unfair to absorb the Panchayat Shiksha Mitra employed as on 1st July, 2006 as Panchayat Shikshak under the Rules as there may be some persons who may not have found the terms and conditions of the Panchayat Shiksha Mitra attractive and may not have applied for employment as Panchayat Shiksha Mitra. Had they been told that ultimately they would be absorbed in permanent service as Panchayat Shikshak they might have opted for employment as Panchayat Shiksha Mitra. In the opinion of the learned Single Judge, Clause (iii) of Rule 20 of the Rules is arbitrary, discriminatory and ultra vires Articles 14 and 16 of the Constitution. The learned Single Judge was also concerned about the pending claims of the aggrieved persons who were not selected as Panchayat Shiksha Mitra or were not continued as Panchayat Shiksha Mitra. Whether such persons, if their grievance were found to be genuine, can be granted relief of deemed employment as Panchayat Shiksha Mitra and consequent absorption in the cadre of Panchayat Shikshak under the Rules.

13. Learned Additional Advocate Gen eral-1-Mr. Lalit Kishore has appeared for the State Government. He has submitted that it is the settled law that the State Government is empowered to alter the service conditions of its employees unilaterally even to the detriment of such employees. No Rule can be held to be ultra vires on the basis of non-existent hypothetical set of facts. He has submitted that the absorption of the Panchayat Shiksha Mitra employed as on 1st July, 2006 as Panchayat Shikshak under the Rules is matter of Government policy. The said Rule cannot be held to be invalid or ultra vires, keeping in view the persons who never applied for employment as Panchayat Shiksha Mitra.

14. In our opinion, the issue referred to us is imaginary and does not arise in any of the matters. Neither the aforesaid Clause (iii) is under challenge before us in any of the above matters nor there is one case before us where the writ petitioner has claimed that he/she did not apply for employment as Panchayat Shiksha Mitra as the terms and conditions of the said employment were not attractive and that had he/she known about ultimate absorption in permanent service as Panchayat Shikshak he/she would have opted for employment as Panchayat Shiksha Mitra.

15. Clause (iii) of 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. 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.

16. Coming to the second issue, we are of the opinion that the Rules are statutory in nature and have to be implemented 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.

17. We may also note here that though the State Government framed a complete scheme for employment of Panchayat Shiksha Mitra at Gram Panchayat level in furtherance of its goal of “Education for All”, in none of the afore said Resolutions the Government had pro vided for an adjudicatory machinery. In other words, the State Government did not make any provision for redressal of grievance in respect of selection and employment of Panchayat Shiksha Mitra or their re-employment after the expiry of the contractual period. On perusal of the records of the above writ petitions, we find that in absence of such machinery, the aggrieved persons approached the authority whom such persons considered to be the competent/the convenient authority. In our opinion, in absence of powers expressly conferred upon any such authority the reports or the orders made by such authority are of no consequence. No relief can be granted on the basis of the finding recorded by such authority. We may also point out that Elementary Teachers Appellate Authority constituted under Rule 18 of the Rules, as amended by. Bihar Panchayat Elementary Teacher (Employment and Service Conditions) (Amendment) Rules, 2008 is empowered to entertain, hear and decide the appeals arising out of the employment of elementary teachers under the Rules. The said appellate authority has no jurisdiction to entertain, hear or decide the disputes relating to/the employment of Panchayat Shiksha Mitra under the then prevalent Resolutions, Circulars, Orders, Instructions.

18. 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 11th 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 Kishori Prasad v. The State of Bihar [2008 (2) PLJR 458] is contrary to Rule 20(iii) of the Rules.

19. 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.

20. 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.

21. The petitions are, therefore, dismissed. The parties will bear their own cost.

Birendra Prasad Verma, J.:— I entirely agree.