IN THE HIGH COURT OF JUDICATURE AT PATNA

Letters Patent Appeal No.1569 of 2010

In

Civil Writ Jurisdiction Case No. 12054 of 2010

With

Interlocutory Application No. 8759 of 2010

In

Letters Patent Appeal No.1569 of 2010

======================================================

Kalpana Rani, wife of Sri Sanjeev Kumar Thakur, resident of village-

Mohiuddinpur, Post Office Hansa, P.S.Warishnagar, Distt-Samastipur.

.... .... Respondent No.9-Appellant

Versus

1. The State of Bihar, through the Principal Secretary, Human Resources

Development Department, Government of Bihar, Patna.

2. The Director, Primary Education, Human Resources Development

Department, Government of Bihar, Patna.

3. The District Magistrate Samastipur, Distt-Samastipur.

4. The District Superintendent of Education, Samastipur, District-

Samastipur.

5. The Block Development Officer, Warishnagar, District-Samastipur.

6. The Block Education Officer, Warishnagar, District-Samastipur.

7. The Mukhiya, Gram Panchayat Raj, Mohiuddinpur, Police Station

Warishangar, District-Samastipur.

8. The Secretary, Gram Panchayat Raj, Mohiuddinpur, Block- Warishangar,

District-Samastipur.

9. Shabana Praveen, daughter of Md.Yaseen, resident of Village

Mohiuddinpur, Post Office- Hansa, Police Station-Warishnagar, District-

Samastipur.

…. ….. Respondents-Respondents.

10. Prashant Kumar, S/O Sri Dinesh Prasad Thakur, resident of Village

Mohiuddinpur, Police Station-Warishnagar, Distt-Samastipur.

.... .... Petitioner-Respondent

======================================================

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

2/89

Appearance :

For the Appellant : Mr. Y. V. Giri, Senior Advocate

Mr. Sanjay Kumar Singh, Advocate

For the Respondent-State : Mr. Kumar Pankaj, A. C. to S. C.-21

For the Respondent No.7 : Mr. Nawal Kishore Singh, Advocate

For the Respondent No.8 : Mr. Maruth Nath Roy, Advocate

For the Respondent No.10 : Mr. Rajeev Kumar Verma, Sr. Advocate

Mr. Mritunjay Kumar, Advocate

======================================================

CORAM: HONOURABLE THE CHIEF JUSTICE

And

HONOURABLE MR. JUSTICE MIHIR KUMAR JHA

And

HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH

C.A. V. Judgment

(Per: HONOURABLE THE CHIEF JUSTICE)

Date 15

th

May 2014

This Appeal under Clause 10 of the Letters Patent

preferred by the respondent no.9 arises from the judgment and

order dated 16

th

September 2010 passed by the learned single

Judge in CWJC No.12054 of 2010.

The matter relates to appointment of Panchayat

Shiksha Mitra under the Gram Panchayat Mohiuddinpur, P.S.

Hansa, District-Samastipur under the then prevalent Scheme

(hereinafter referred to as „the Scheme‟) and absorption as

Panchayat Teacher under the Bihar Panchayat Elementary

Teacher (Employment and Service Conditions) Rules, 2006

(hereinafter referred to as “the Rules of 2006”).

The respondent no.10 Prashant Kumar approached

this Court under Article 226 of the Constitution in CWJC

No.12054 of 2010 to challenge the order dated 26

th

June 2010

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

3/89

made by the District Magistrate, Samastipur in Miscellaneous

Case No.1 of 2010 and the order of cancellation of his

appointment made by the Gram Panchayat on 1

st

January 2009.

It appears that as early as in April 2003, the writ

petitioner was appointed as Panchayat Shiksha Mitra under the

Scheme. His appointment as Panchayat Shiksha Mitra was

continued from time to time. Thus the petitioner continued till 1

st

July 2006. On 1

st

July 2006, the petitioner, by operation of Rule

20 (iii) of the Rules of 2006 came to be absorbed as Panchayat

Teacher.

Since his absorption as Panchayat Teacher on 1

st

July 2006, his appointment came to be questioned by the Block

Development Officer at the instance of the appellant. After

several rounds of litigations and representations by the appellant,

under the order made by the District Magistrate on 26

th

June

2010, the appointment of the petitioner as Panchayat Shiksha

Mitra came to be cancelled and a direction was issued to appoint

the appellant as Panchayat Teacher.

Feeling aggrieved the petitioner approached this

Court under Article 226 of the Constitution in above CWJC

No.12054 of 2010. The learned single Judge has, following the

judgment in the matter of Alok Kumar & Ors Vs. State of Bihar

and others [2009 (2) PLJR 929], allowed the writ petition and

has set aside the order of the District Magistrate. Therefore, this

Appeal by the respondent no.9.

Since the impugned judgment passed by the

learned single Judge, a Division Bench of this Court (to which

one of us, the Chief Justice was a party) has, in the matter of

Smt. Renu Kumari Pandey & Ors. Vs. The State of Bihar &

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

4/89

Ors. [2011 (4) PLJR 297], held that on and after 1

st

July 2006

the cadre of Panchayat Shiksha Mitra stands abolished; no

further appointment, therefore, can be made to the post of

Panchayat Shiksha Mitra; the Panchayat Shiksha Mitras

absorbed as Panchayat Teacher by operation of Rule 20(iii) of

the Rules of 2006 are governed by the Rules of 2006. Their

service cannot be terminated in any manner or for any reason

other than the ones prescribed under the Rules of 2006. It has

also been held that the District Magistrate was not an authority

competent to entertain and decide the grievances in respect of

the Panchayat Shiksha Mitra and is not an authority competent to

entertain and resolve the disputes in relation to appointment,

termination of service etc. of the Panchayat Teachers.

This Appeal came up for hearing before the Bench

of this Court (Coram: Mr. Justice Shiva Kirti Singh, as he then

was and Mr. Justice Shivaji Pandey) on 28

th

September 2011. On

the submissions made by the learned counsel for the appellant,

under order dated 28

th

September 2011 the Appeal was directed

to be heard by a Full Bench. The Bench observed, “Considering

that large number of cases are arising on the aforesaid issue,

it is desirable that this appeal be heard by a Full

Bench………….”.

At the outset we may note that the aforesaid

reference has been made keeping in view the large number of

cases filed in the subject matter and not because the Bench did

not agree with the view expressed in the matter of Smt.Renu

Kumari Pandey (supra). In my opinion, unless the latter Bench,

for cogent reasons, disagrees with the earlier view taken by the

collateral Bench, the question of referring the matter to a larger

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

5/89

Bench shall not arise. Reference can be had to the judgment of

the Full Bench of this Court in the matter of Akhauri Krishna

Kumar Sinha and Ors. Vs. Mundrika Prasad [1986 PLJR

1119]. Nevertheless, as the Appeal has come up for hearing

before this Bench, the Appeal is heard and is decided on merits.

We have heard the learned advocates appearing in

this Appeal and also the learned advocates appearing in other

cognate matters which are ordered to be heard with this Appeal.

In support of their submissions, the learned advocates have

relied upon the judgments of the Hon‟ble Supreme Court in the

matters of State of W.B. and others Vs. Shivananda Pathak and

others [ (1998) 5 SCC 513]; of Gammon India Ltd. Vs. Special

Chief Secretary and others [2006(3) SCC 354]; of

Balakrushna Behera & Anr Vs. Satya Prakash Dash [2007 (4)

PLJR (SC) 209]; of Y. Satyanarayan Reddy Vs. Mandal

Revenue Officer, Andhra Pradesh [(2009) 9 SCC 447]; of

Fuljit Kaur Versus State of Punjab and others [(2010) 11

SCC 455]; and of State of Punjab Vs. Salil Sabhlok and others

[(2013) 5 SCC 1]; and of this Court in the matter of Akhauri

Krishna Kumar Sinha and Ors. Vs. Mundrika Prasad [1986

PLJR 1119]; of Prathmik Adhyapak Sangh vs. The State of

Bihar & Ors. [2003(2) PLJR 305]; of Abdul Quadir & Ors.

Vs. The State of Bihar & Ors. [2008 (1) PLJR 31]; of Kishori

Prasad Vs. The State of Bihar & Ors. [2008(2) PLJR 458]; of

The State of Bihar & Ors. Vs. Indra Mohan Rai [2009 (2)

PLJR 869]; of Alok Kumar & Ors Vs. State of Bihar and

others [2009 (2) PLJR 929]; of Indu Devi Vs. The State of

Bihar & Ors. [2010(2) PLJR 241]; of Smt. Renu Kumari

Pandey & Ors. Vs. The State of Bihar & Ors. [2011 (4) PLJR

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

6/89

297]; of Rima Kumari Vs. The State of Bihar & Ors. [2012(1)

PLJR 107]; of Umesh Chandra Shiva Vs. The State of Bihar &

Ors. [ 2012(1) PLJR 585]; of Pintu Das Vs. The State of Bihar

& Ors. [2012(2) PLJR 317]; of Subodh Kumar Yadav & Anr.

Vs. The State of Bihar & Ors. [2012(3) PLJR 261]; and of

Awadh Bihari Rai Vs. The State of Bihar & Ors. [2013 (3)

PLJR 506].

Learned counsel Mr. Y. V. Giri has appeared for

the appellant. He has raised objection against the constitution of

the Bench. He has submitted that this Bench (the Chief Justice)

shall not hear this Appeal because the Chief Justice has already

expressed her opinion in the matter of Smt. Renu Kumari

Pandey (supra). The „principle of judicial obstinacy‟ requires

that this Bench should not hear this Appeal. In support of this

submission, Mr. Giri has relied upon the judgment of the

Hon‟ble Supreme Court in the matters of State of W. B. and

others Versus Shivananda Pathak and others [(1998) 5 SCC

513] and of Prathmik Adhyapak Sangh vs. The State of Bihar

& Ors. [2003(2) PLJR 305].

Mr. Giri has strenuously urged that once a Judge

has expressed his/her opinion, he or she gets biased and that

Judge shall not hear a similar matter raising identical issue. In

my opinion, the submission is totally absurd. Nothing in the

above referred judgments even remotely suggests that a Judge

should not hear a matter on an issue on which he/she has already

expressed some view; or in other words a Judge should hear not

more than one matter on a particular issue. If the submission

were accepted it would lead to total chaos. Every judge, every

day entertains, hears and decides similar or identical issues. The

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

7/89

Court, therefore, cannot be said to be biased.

Mr. Giri has next submitted that whether

authorized by law or not, the District Magistrate, Samastipur had

heard and decided the Miscellaneous Case No.1 of 2010

pursuant to the direction issued by this Court in CWJC No.1732

of 2009. The impugned order, therefore, cannot be held to be

made without the authority of law.

Mr. Giri has next submitted that while considering

the Rules of 2006, particularly Rule 20 (iii) thereof in the matter

of Smt. Renu Kumari Pandey (supra), the Bench has erred in

not considering the provisions contained in the General Clauses

Act. He has submitted that Section 6 of the General Clauses Act,

1897 and Section 8 of the Bihar and Orissa General Clauses Act,

1917 make similar provision in respect of consequences of a

repeal of an Act. Section 6 of the General Clauses Act, 1897 and

Section 8 of the Bihar and Orissa General Clauses Act, 1917

read as under:

The General Clauses Act, 1897

“6. Effect of repeal.- Where this Act, or any

[Central Act] or Regulation made after the

commencement of this Act, repeals any enactment

hitherto made or hereafter to be made, then, unless a

different intention appears, the repeal shall not-

(a) revive anything not in force or existing at

the time at which the repeal takes effects; or

(b) affect the previous operation of any

enactment so repealed or anything duly done or

suffered thereunder; or

(c) affect any right, privilege, obligation or

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

8/89

liability acquired, accrued or incurred under any

enactment so repealed; or

(d) affect any penalty, forfeiture or punishment

incurred in respect of any offence committed against

any enactment so repealed; or

(e) affect any investigation, legal proceeding or

remedy in respect of any such right, privilege,

obligation, liability, penalty, forfeiture or punishment

as aforesaid, and any such investigation, legal

proceeding or remedy may be instituted, continued or

enforced, and any such penalty, forfeiture or

punishment may be imposed as if the repealing Act or

Regulation had not been passed.”

The Bihar and Orissa General Clauses Act, 1917

“8. Effect of repeal.- Where any Bihar and Orissa

Act, or Bihar Act repeals any enactment hitherto

made, or hereafter to be made, then, unless a

different intention appears, the repeal shall not,--

(a) revive anything not in force or existing at

the time at which the repeal takes effects; or

(b) affect the previous operation of any

enactment so repealed or anything duly done or

suffered thereunder; or

(c) affect any right, privilege, obligation or

liability acquired, accrued or incurred under any

enactment so repealed; or

(d) affect any penalty, forfeiture or punishment

incurred in respect of any offence committed against

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

9/89

any enactment so repealed; or

(e) affect any investigation, legal proceeding or

remedy in respect of any such right, privilege,

obligation, liability, penalty, forfeiture or punishment

as aforesaid; and any such investigation, legal

proceeding or remedy may be instituted, continued or

enforced, and any such penalty, forfeiture or

punishment may be imposed as if the repealing Act

had not been passed.”

I have considered and relied upon the judgment of

the Hon‟ble Supreme Court in the matter of Gammon India

Ltd. Vs. Special Chief Secretary and others [2006(3) SCC

354].

In my opinion, nothing provided in the above

referred Section 6 of the General Clauses Act, 1897 or Section 8

of the Bihar and Orissa General Clauses Act, 1917 affects the

decision in the matter of Smt. Renu Kumari Pandey (supra).

The fallacy in the submission is apparent. Both the above

referred Sections 6 and 8 operate only in case the concerned

Repealing Act does not provide for consequences, for both the

above referred Sections 6 and 8 use the phrase “unless a

different intention appears”. Thus in case the Repealing Act

provides for the consequences of such repeal, the same shall

prevail.

In the present case, Rule 20 of the Rules of 2006

provides for the consequences of repeal in the following terms:

“20. fujlu ,oa O;ko`fRr %&

¼i½ bl fu;ekoyh ds izHkkoh gksus dh frfFk ls xzkeh.k {ks= esa

izkjafHkd f’k{kdksa@’kkfjfjd f’k{kdksa@iapk;r f’k{kk fe= ds fu;kstu ls

lacaf/kr iwoZ dh lHkh fu;ekoyh] ladYi] vkns’k] vuqns’k vkfn fujLr ekus

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

10/89

tk;saxsA

¼ii½ fdUrq bl fujlu ds gksrs gq, Hkh iwoZ ds fu;ekoyh]

ladYi] vkns’k] vuqns’k vkfn ds rgr fu;qDr f’k{kdksa ds osrukfn ,oa

lsok ’kÙkksZa ij bldk izHkko ugha iM+sxkA

¼iii½ fdUrq iwoZ ds ifji=] vkns’k] vuqns’k ds vkyksd esa

fu;ksftr ,oa dk;Zjr iapk;r f’k{kk fe= bl fu;ekoyh ds rgr iapk;r

f’k{kd ds :i esa fu;ksftr ekus tk;saxsA”

The aforesaid Rule 20 of the Rules of 2006 has

been considered by the Bench in the matter of Smt. Renu

Kumari Pandey (supra). In absence of any doubt raised in

respect of construction of the said Rule 20, there is no scope for

taking any other view in respect of the effect of the Rules of

2006, particularly Rule 20(iii) thereof, on Panchayat Shiksha

Mitra serving as such as on 1

st

July 2006.

We may also note here that the judgment in the

matter of Smt. Renu Kumari Pandey (supra) has been affirmed

by the Hon‟ble Supreme Court under its order dated 9

th

January

2012 made on Petition for Special Leave to Appeal (Civil)

No.33303 of 2011. Mr. Giri has rightly submitted that summary

dismissal of Petition for Special Leave to Appeal does not

amount to confirming the judgment under challenge. In that

case, the judgment under challenge would be final and binding

to the parties thereto, but does not lay down a binding precedent.

In support thereof, Mr. Giri has relied upon the judgments of the

Hon‟ble Supreme Court in the matters of Y. Satyanarayan

Reddy Versus Mandal Revenue Officer, Andhra Pradesh

[(2009) 9 SCC 447] and of Fuljit Kaur Versus State of Punjab

and others [(2010) 11 SCC 455].

On this issue, we do agree with Mr. Giri.

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

11/89

However, Mr. Giri has not been able to point out that the

interpretation of Rule 20 put forward by the Division Bench in

the matter of Smt. Renu Kumari Pandey (supra) is incorrect in

any manner or has a possible second view.

The Scheme framed under Government

Resolutions dated 21

st

June 2002 and modified on 11

th

August

2004 and 7

th

April 2005; and explained on 21

st

April 2005 has

been considered and discussed in the above referred judgment of

Smt. Renu Kumari Pandey in extenso. The relevant paragraphs

are reproduced hereunder for convenience:

“4. The State of Bihar in discharge of its

constitutional responsibility and under its policy of

“Education for All”, 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.

5. 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 extent of reservation and the

distribution of posts amongst the Gram Panchayats.

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

12/89

(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 11x3=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.

6. 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

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

13/89

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”.

7. 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.1500/-.

(ii) Termination of contract of employment.

(iii) Reemployment 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 provided that the

trained persons having Diploma in Education or B.Ed. shall

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

14/89

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

8. The note below the aforesaid paragraph 7

provided that the weightage being equal; persons with

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

15/89

higher qualification be placed higher in the merit list.

9. 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.

18. 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 aforesaid Resolutions the Government

had provided 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 reemployment 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

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

16/89

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.”

The aforesaid Scheme came to an end with

enactment of the 2006 Rules which came into operation on 1

st

July 2006. The scope 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 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.

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 thereof

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

17/89

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.

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 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.

16. 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,

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

18/89

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

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.”

Having considered the scope and ambit of the

Scheme for appointment of 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

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

19/89

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.”

Nothing said in the above referred matter of Smt.

Renu Kumari Pandey is questioned before us. Nothing has been

brought before us which persuades me to take a different view of

the Scheme and the Rules of 2006. The Hon‟ble Supreme Court

has, in the matter of Balakrushna Behera & Anr Vs. Satya

Prakash Dash [2007 (4) PLJR (SC) 209], held that by mere

selection a candidate does not acquire indefeasible right to

appointment to a post which can be enforced in a petition filed

under Article 226 of the Constitution. The Hon‟ble Court has

also held that the Court cannot direct the State Government by

writ of mandamus to appoint a person against a post which has

been abolished by the State Government.

Another Division Bench headed by Justice Smt. T.

Meena Kumari had the similar view in the matter of Umesh

Chandra Shiva Vs. The State of Bihar & Ors. [ 2012 (1) PLJR

585]. It reads, “…………… the Rules namely Bihar

Prarambhik Shikshak Nioyojan and Shikshak Niamawali

Adhiniyam-2006, does not permit selection earlier made for

the post of Panchayat Shiksha Mitra to be either saved or

retained for any purpose, inasmuch as, Rule-18 and 20 read

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

20/89

in tandem would make it absolutely clear that all circulars

and guidelines relating to selection and appointment on the

post of Panchayat Shikshak were repealed as a whole and

therefore, once the saving clause also was limited to

reserving the rights of already appointed Shiksha Mitra

either in respect of their salary or service condition, it has to

be necessarily held that the earlier selection and preparation

of panel in which Umesh Chandra Shiva had been found to

be best among the backward candidate was limited for the

post of Panchayat Shiksha Mitra and on that basis, he

cannot be appointed on the post of Panchayat Shikshak after

01.07.2006 in view of the aforementioned 2006 Rules.”

In the matter before us also the appellant Kalpana

Rani was never appointed as Panchayat Shiksha Mitra either in

2003 or at any time until 1

st

July 2006. After 1

st

July 2006, the

appellant could not set up right to employment as Panchayat

Shiksha Mitra or right to be absorbed as Panchayat Teacher. The

belated challenge to the appointment of the respondent nos.9 and

10 and the claim for absorption as Panchayat Teacher raised by

the appellant after 1

st

July 2006 was clearly an after thought.

Such a claim cannot be entertained. Irrespective of the validity

of the appointment of respondent nos.9 and 10 as Panchayat

Shiksha Mitra, the appellant has no right to be appointed as

Panchayat Shiksha Mitra or to be absorbed as Panchayat

Teacher.

We may note that the Scheme framed under

Government Resolution dated 21

st

June 2002 was modified

under Government Resolution dated 11

th

August 2004. Under

the modified Scheme the eligibility was enhanced from Matric

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

21/89

or equivalent qualification to that of Intermediate or equivalent

qualification with minimum of 45% marks. 50% of the posts

were reserved for female candidates. In case qualified female

candidates in adequate number were not available, the concerned

authorities were permitted to select female untrained candidates

or the female candidates with lesser qualification of

Matriculation or equivalent qualification on condition that they

acquired the requisite qualification within three years. For that

purpose the permission be obtained from the National Council

for Teachers Education to relax the standard of eligibility. This

concession was made for female candidates alone. A similar

concession was not extended to the male candidates {paragraph-

5(ga)}.

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 in curium and is expressly overruled. The

decision in the matter of Rima Kumari Vs. The State of Bihar

& Ors. [2012(1) PLJR 107] is affirmed.

Any judgment which has taken a view contrary to

the above view expressed by us is impliedly overruled.

For the aforesaid reasons, Appeal is dismissed

with cost. The cost is quantified at Rs.10,000/-. The amount of

cost will be deposited in the Government Treasury at Samstipur

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

22/89

within eight weeks from today. In the event, the appellant fails to

deposit the amount of cost as directed, the District Collector,

Samastipur will recover the same as arrears of land revenue.

Interim relief stands vacated.

Interlocutory Application stands disposed of.

(R.M. Doshit, CJ)

As per Mihir Kumar Jha, J.

I entirely agree with Hon‟ble the Chief Justice but,

having regard to the seminal importance of the issues involved

in this case, I am delivering my separate concurring judgment.

The facts giving rise to this appeal lie in a very narrow

compass. Upon formulation of a scheme by a resolution dated

21.06.2002 issued by the Department of Secondary, Primary and

Adult Education of the Government of Bihar for engagement on

contract on the post of Panchayat Shiksha Mitra when such post

of Panchayat Shiksha Mitra was sought to be filled up in

Mohiuddinpur Panchayat, both the appellant and the respondent

no.10 of this appeal and the writ petitioner (hereinafter referred

to as the writ petitioner) with others had filed their application

for being appointed as Panchayat Shiksha Mitra. The Sukh

Suvidha Samiti of the Panchayat, thereafter, had selected and

appointed the writ petitioner on 25.4.2003. As per the scheme of

Panchayat Shiksha Mitra, the writ petitioner was also granted

extension upon completion of tenure of eleven months of

contract on 17.4.2004, 22.4.2005 and 25.4.2006 and thus, as the

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

23/89

writ petitioner was continuing as a Panchayat Shiksha Mitra on

1.7.2006, he stood absorbed on the post of Panchayat Teacher in

terms of Rule 20(iii) of Bihar Panchayat Prarambhik Shikshak

(Niyojan & Seva Sart) Niyamawali, 2006 (hereinafter to be

referred to as „the 2006 Rules”).

The appellant, however, had assailed the selection

and appointment of the writ petitioner by an application dated

14.09.2006 filed by her in Janta Darbar of District Magistrate

which was sent for disposal to the Block Development Officer in

exercise of his power under Rule 18 of the 2006 Rules and he,

by his order dated 18.11.2006, had cancelled the appointment

not only of the writ petitioner but, all other appointments on

Panchayat Shiksha Mitra, who actually by then had already

stood absorbed on the post of Panchayat Teacher. It is, however,

on record that later on the Block Development Officer by his

order dated 25.1.2007 had recalled his order dated 18.11.2006

and, as such, the writ petitioner with others had continued to

work as Panchayat Teacher.

The appellant, thereafter, had assailed the

aforementioned order of the Block Development Officer dated

25.1.2007 in a writ petition before this Court in CWJC No. 675

of 2007 which was heard with 24 other similar writ petitioners

all involving with regard to selection/appointment/re-

appointment/absorption/payment of salary on the post of

Panchayat Shiksha Mitra/Panchyat Teacher. This Court, by an

order dated 18.5.2007 in the writ application of the appellant as

also the other 24 writ petitions without interfering with the

impugned order of the Block Development Officer dated

25.1.2007, had only given permission to the appellant and other

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

24/89

writ petitioners in the batch of those writ petitions to file their

representation before the concerned District Magistrate within a

period of four weeks with a direction to the District Magistrate

to look into the grievance as raised by the concerned writ

petitoiner and dispose of the same by a reasoned order within a

period of three months.

Pursuant to the aforementioned direction of this Court

in the order dated 18.05.2007 when the appellant had filed her

representation before the District Magistrate, the same was

disposed of by a reasoned order dated 12.7.2007 rejecting the

case of appellant for her appointment as a Panchayat Shiksha

Mitra in view of the government decision dated 10.11.2006 that

no appointment from the panel of Panchayat Shiksha Mitra

could be made after 1.7.2006, the date on which 2006 Rules

came into force. In this regard, it would be necessary to quote

the relevant portion of the order of the District Magistrate,

Samastipur dated 12.7.2007, which reads as follows:-

^^fnukad 29-06-07 dks Jherh dYiuk jkuh

;kfpdkdrkZ@vkosnd eqf[k;k@iapk;r lfpo] xzke iapk;r

eksfgmnnhuiqj ,oa ftyk f”k{kk v/kh{kd mifLFkr gq,A

Ekkeyk xzke iapk;r eksfgmn~nhuiqj esa f”k{kk fe= dh fu;qfDr

dk gSA vkosfndk dk dguk gS fd f”k{kk fe= dh fu;qfDr ds fy,

mUgkssaus vkosnu fn;k FkkA muls de izkIrkad okys “kokuk izoh.k ,oa

iz”kkar dqekj dh fu;qfDr f”k{kk fe= ds in ij dj yh xbZ A mUgksaus

fnukad 14-09-06 dks turk njckj esa vkosnu i= fn;k Fkk ftlds

vkyksd esa iz[akM f”k{kk izlkj inkf/kdkjh] ckfjluxj ls tkWp djk;h

xbZ ftlesa vkjksi dks lR; ik;k x;k rFkk iz[kaM fodkl inkf/kdkjh]

okfjluxj us vius i=kad 1347 fnukad 18-11-06 ds }kjk eqf[k;k

xzke iapk;r eksfgmn~nhuiqj dks iqu^ fu;kstu gsrq funs”k fn;k ijUrq

eqf[k;k }kjk ,slk ugha fd;k x;kA

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

25/89

bl laca/k esa mifLFkr ftyk f”k{kk v/kh{kd }kjk crk;k x;k

fd mDr ikapk;r esa f”k{kk fe= dk fu;kstu jn~n dj fn;k x;k gS

ijUrq vkosfndk us dgk fd fu;kstu jn~n ugha fd;k x;k gS os dk;Z

dj jgs gSA

eksfgmn~nhuiqj iapk;r dh mifLFkr eqf[k;k us crk;k fd iz[kaM

fodkl inkf/kdkjh] ckfjluxj ds i=kad 1347 fnukad 18-11-06 }kjk

f”k{kk fe= dh fu;qfDr dks jnn djrs gq, lq[k lqfo/kk lfefr dh

cSBd cqykus dk vkns”k fn;k ijUrq iqu% mUgksaus vius i=kad 199

fnukad 25-01-07 }kjk eqf[k;k xzke iapk;r jkt eksfgmn~nhuiqj dks

lwfpr fd;k fd;k fd f”k{kk fe= ds fu;kstu dh tkWp djk;h x;h

rFkk o’kZ 2003 esa lHkh dskfV ds fu;kstu dks fu;ekuqdwy ,oa oS|

ik;k x;kA vr% muds dk;kZy; ds i=kad 1347 fnukad 18-11-06 dks

fujLr fd;k tkrk gSA

mijksDr rF;ksa ls Li’V gS fd Jherh dYiuk jkuh dk fu;kstu

f”k{kk fe= esa ugha gks ldkA ekuo lalk/ku fodkl foHkkx] fcgkj]

iVuk ds i=kad 1899 fnukad 10-11-06 }kjk fnukad 1-7-06 ls f”k{kk

fe= ds fu;kstu ij jksd yxk fn;k x;k gS izklafxd i= esa Li’V

izko/ku gS fd vfu;fer fu;qfDr dh fLFkfr esa gVk;k tk ldrk gS

ijUraq ml txg ij fu;kstu ugha fd;k tk ldrk gSA orZeku

ifjfLFkfr esa budk f”k{kk fe= ij fu;kstu lEHko ugha gSA vr% buds

vkosnu i= dks vLohd`r fd;k tkrk gSA

vf/kd vad izkIr djus okys dk f”k{kk fe= ls fu;kstu ugha

dj de vad okys ds fu;kstu ds ekeys esa ftyk f”k{kk v/kh{kd]

leLrhiqj ls Li’V izfrosnu dh ekax dh tk,A lkFk gh bl lEca/k

esa ,d gh fo’k; ij vyx&vyx vkns”k ikfjr djus ds fy, iz[kaM

fodkl inkf/kdkjh okfjluxj ls Li’Vhdj.k dh ekax dh tk,A

iapk;r f”k{kd ds fu;kstu dk nwljk pj.k “kq: gksus okyk gSA

vkosnd vkosnu ns fu;ekuqdwy vxj vkosnd fu;kstu ds ;ksX; ik;s

x;s rks fopkj fd;k tk,xkA**

(underlining for emphasis)

It is significant to note here that this order of the

District Magistrate, Samastipur dated 12.7.2007 has been made

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

26/89

subject matter of the writ petition CWJC No. 11844 of 2007,

which, according to the appellant as per her own averment in

paragraph no.14 of the memo of the present appeal, is still

pending before this Court. It, however, appears that pursuant to

the aforementioned direction of the District Magistrate,

Samastipur as with regard to looking into the appointment of the

writ petitioner, who allegedly was appointed as a Panchayat

Shiksha Mitra even having lesser marks than the appellant, some

enquiry was conducted and by an order dated 24.12.2008, the

appointment of the petitioner was cancelled whereafter the writ

petitioner had filed a writ application, CWJC No. 1732 of 2009

impleading the appellant as Respondent no. 9 and this Court by

an order dated 3.2.2009 had held the order of termination of

service of the writ petitioner dated 24.12.2008 to be bad only on

the ground of violation of principle of natural justice, inasmuch

as, such order was passed by the District Magistrate, Samastipur

even without issuing any notice to the writ petitioner.

This Court again in the order dated 3.2.2009 in

CWJC No. 1732 of 2009 had infact remitted the matter back to

the District Magistrate, Samastipur with a direction that the writ

petitioner should be afforded an opportunity of hearing along

with the appellant and/or any other affected persons and decide

the matter afresh only with regard to termination of the services

of the writ petitioner because the appellant, in any event, could

not have been appointed in view of the government decision

abolishing the post of Panchayat Shiksha Mitra with effect from

1.7.2006. The appellant then had filed an appeal L.P.A. No. 374

of 2009 against the order dated 3.2.2009 and a Division Bench

of this Court, while disposing of the appeal of the appellant by

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

27/89

an order dated 8.10.2009, had only observed that the order of

this Court dated 3.2.2009 in C.W.J.C. No. 1732 of 2009 would

not stand in the way of the District Magistrate, Samastipur in

considering and deciding the right of the appellant in accordance

with law.

The District Magistrate, Samastipur had, thereafter,

passed his order on 26.6.2010 holding the appointment of the

writ petitioner to be bad and also directed in his same order

dated 26.6.2010 for appointment of the appellant on the post of

Panchayat Shiksha Mitra. It is this order dated 26.6.2010 of the

District Magistrate, Samastipur which was assailed by the writ

petitioner in CWJC No. 12054 of 2010 impleading appellant as

Respondent no. 10 and has been quashed by the impugned order

of this appeal dated 16.9.2010 wherein learned single Judge of

this Court, having referred to and relied on the ratio in the case

of Alok Kumar Vs. The State of Bihar & Ors. reported in 2009(2)PLJR

929, has held that the order the District Magistrate dated

26.6.2010 was unsustainable both on the ground of jurisdiction

as also because of abolition of the post of Panchayat Shiksha

Mitra. It is actually this order dated 26.6.2010 in CWJC No.

12054 of 2010, which is the subject matter of this appeal.

A Division Bench of this Court, while admitting this

appeal for final hearing by an order dated 28.09.2011, has

referred the appeal itself for its being heard by the Full Bench

and the relevant part of the order of the Division Bench dated

28.09.2011, reads as follows:-

“------ In view of the aforesaid submissions and stand taken by

Mr. Giri, we are inclined to admit this application for hearing

by a Full Bench.------- Considering that large number of cases

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

28/89

are arising on the aforesaid issue, it is desirable that this appeal

be heard by a Full Bench at an early date which may be got

fixed by the Office under orders of Hon‟ble the Chief Justice.”

Mr. Y.V. Giri, learned senior counsel for the appellant,

at the outset, had raised an objection to the hearing of the appeal

by the Full Bench consisting Hon‟ble the Chief Justice on the

ground that the reference, having been made by the Division

Bench in the order dated 28.9.2011 as with regard to the

correctness of an earlier Division Bench judgment delivered by

Hon‟ble the Chief Justice in the case of Smt. Renu Kumari Pandey

Vs. The State of Bihar & Ors. reported in 2011(4)PLJR 297, she

should recuse herself from the Full Bench. In support of his

aforementioned submissions, Mr. Giri had invoked the doctrine

of judicial obstinacy and the resultant apprehension of likelihood

of bias by placing also his strong reliance on the judgment of the

Apex Court in the case of State of W.B. & Ors. Vs. Shivananda

Pathak & Ors. reported in 1998(5)SCC 513 as also a Division Bench

judgment of this Court in the case of Prathmik Adhyapak Sangh Vs.

The State of Bihar & Ors. reported 2003(2) PLJR 305.

Per contra, learned counsel for the respondents led by

Mr. Rajiv Kumar Verma, learned senior counsel for respondent

no.10, the writ petitioner, have vehemently opposed the views

of Mr. Giri as with regard to seeking recusal of Hon‟ble the

Chief Justice from the Full Bench. According to Mr. Verma,

first of all, the Division Bench in its order dated 28.9.2011,

while referring this appeal for its hearing by a Full Bench, has

nowhere even remotely doubted muchless differed with the ratio

of the judgment in the case of Smt. Renu Kumari Pandey

(supra). According to Mr. Verma such a reference to the Full

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

29/89

Bench by the Division Bench in the order dated 28.9.2011 is

only by way of its desire for hearing the entire appeal itself. In

this regard, Mr. Verma has also placed reliance not only on the

order of reference dated 28.9.2011 but, also on the provision of

the Patna High Court Rules with regard to reference of a case to

Full Bench.

In the light of the aforesaid stand of the parties, to my

mind, it would be necessary for one to first answer the following

three aspects as with regard to recusal of Hon'ble the Chief

Justice from the Full Bench namely:-

(i) Whether the reference by the Division Bench

by its order dated 28.09.2011 is only for hearing of the

whole appeal or for deciding the correctness of the ratio

of an earlier division bench judgment in the case of Smt.

Renu Kumari Pandey (supra)?

(ii) Whether any law including Patna High

Court Rules or its almost hundred years‟ precedence

requires a judge to recuse himself or herself from Full

Bench if his or her earlier judgment becomes the subject

matter of consideration by the Full Bench?

(iii) Whether such recusal of Hon'ble the Chief

Justice has been sought only because the ratio laid down

by the earlier division bench in the case of Smt. Renu

Kumari Pandey (supra) is totally against the case of the

appellant?

There is no doubt that under the Patna High Court

Rules a Division Bench can refer the case to the Full Bench

under two circumstances as can be found from a bare perusal of

Rule-1 of Chapter-V of the Patna High Court Rules, which reads

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

30/89

as follows:-

“1. Whenever a Division Bench desires and the Chief Justice

consents that any case shall be referred to a Full Bench, or

whenever in any case a Division Bench differs from any

other Division Bench upon a point of law or usage having

the force of law, such case shall be referred for decision by

a Full Bench.”

As would be apparent, there are two distinct situations

for reference to be made by a Division Bench to the Full Bench.

Firstly, if the Division Bench, having regard to the importance

of the question, desires that any case should be heard by the Full

Bench and Hon‟ble the Chief Justice consents to such desire of

the Division Bench, the case shall be referred to the Full Bench.

The second situation will be such where the Division Bench

straightway differs with the earlier Division Bench on a point of

law in which case the case shall stand referred to a Full Bench

even without consent of Hon‟ble the Chief Justice.

Apart from the aforesaid Rule-1, the power of Hon‟ble

the Chief Justice to issue a direction that any application,

petition, suit, appeal or reference shall be heard by a Full Bench

is fully protected in Rule-11 of Chapter-II of the Patna High

Court Rules, which, if read together, which are Rule 10A

thereof, will leave nothing for speculation that the power of the

Hon‟ble the Chief Justice in making reference to a Full Bench is

absolute.

In the background of the aforesaid provisions in the

Patna High Court Rules, if the order of reference of the Division

Bench dated 28.9.2011 is closely examined, it can be easily

deciphered that it is actually the desire of the Division Bench

that this appeal itself should be heard by a Full Bench because a

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

31/89

large number of cases have arisen on the issues raised in this

appeal.

From reading of the order of reference of the Division

Bench dated 28.09.2011, in fact, it also becomes absolutely clear

that though Mr. Giri had made his submission on a number of

issues before the Division Bench, the order of reference did not

say a word much less had given any reason to differ with the

earlier judgment of the Division Bench in the case of Smt. Renu

Kumari Pandey (supra). For me, therefore, I will read this order

of reference to mean that the whole appeal itself has been

referred for its being heard by the Full Bench. This is precisely,

according to me, the import of the order of reference dated

28.9.2011.

By now it is also well settled that reference to a larger

Bench by the smaller Bench can be made either of a whole case

or on a specific point. To that extent, the judgment of the Apex

Court in the case of Kerala State Science & Technology Museum Vs.

Rambal Co. & Ors. reported in (2006)6 SCC 258 by itself would be

an authority to show that reference made by the learned Single

Judge to Division Bench in absence of any specific question was

held to have been referred to Division Bench for hearing the

whole case. The same view has been also recently reiterated in

the case of State of Punjab Vs. Salil Sabhlok & Ors. reported in

2013(5)SCC 1 wherein it was held as follows:-

“There is no bar shown whereby a Bench is precluded from

referring the entire case for decision by a larger Bench. - it

depends entirely on the reference made.------”

Thus, both in view of the facts noted above and the law

laid down by the Apex Court, I will have no difficulty in holding

that it is the hearing of the appeal itself which has been actually

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

32/89

referred to the Full Bench. Once I reach to this conclusion, I will

have no hesitation in also holding that this appeal can be heard

by this Full Bench consisting of Hon'ble the Chief Justice

inasmuch as there is nothing in Patna High Court Rules or its

Letters Patent as with regard to constitution of Full Bench for

hearing of a Letters Patent appeal by any judge save and except

that his or her judgment is not the subject matter of appeal. Thus

as this appeal itself is to be heard by the Full Bench and as per

Rule 12 of Chapter-II of Patna High Court such Full Bench has

to be of any number not less than three Judges, it has to be

essentially held that there is no bar in Patna High Court Rules in

Hon'ble Chief Justice, being also a judge of this Court, to be a

member of the Full Bench.

My aforesaid view is further fortified from reading of

Rule 6 of Chapter II of Patna High Court Rules which is the

only other provision to exclude a particular Judge from being a

member of Full Bench and the same reads as follows:-

“6. Appeals to the High Court under Clause 10 of the

Letters Patent from the judgement of a Bench

confirming the judgement of a Lower Court under

Section 98 of the Code of Civil Procedure shall be

heard by a Bench consisting of at least three Judges,

including both or neither of the Judges of the Bench

from whose judgment the appeal is preferred, and if

from the judgment of one Judge of a Bench of two

Judges, it shall be heard by a Bench consisting of at

least two Judges other than the Judge from whose

judgment the appeal is preferred.”

Having held so that since the appeal is to be heard by

this Full Bench and Hon'ble the Chief Justice can be a member

of this Full Bench, it is also not difficult for me to reject that part

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

33/89

of submission of Mr. Giri that Hon'ble the Chief Justice should

recuse herself because the referring division bench in its order

dated 28.09.2011 had doubted the correctness of the law laid

down in the case of Smt. Renu Kumari Pandey (supra). In my

view the order of reference dated 28.09.2011 of the Division

bench is as clear as day light and there is nothing in it even by

way of opinion of the Division Bench to show it had differed or

even doubted the correctness of the law laid down in the earlier

Division Bench judgment in the case of Smt. Renu Kumari

Pandey (supra) while referring the hearing of this appeal itself to

Full Bench only because a large number of cases were arising on

the issue.

As a matter of fact after coming to this conclusion that

the whole appeal itself has been referred by the Division Bench

to the Full Bench, there was actually no need for me to go into

the remaining submissions of Mr. Giri, learned senior counsel

for the appellant, as with regard to the recusal of Hon‟ble the

Chief Justice from the Full Bench because if the ratio of

judgment of the Division Bench in the case of Smt. Renu

Kumari Pandey (supra) has not been doubted by the referring

Division Bench, his very basis of the filibusterous submissions

would automatically disappear. It is not the case of Mr. Giri that

even if there is a judgment of earlier Division Bench, whose

ratio has not been doubted much less differed by the other

division bench its applicability while deciding the appeal cannot

be examined by the Full Bench even by the members of the Full

Bench, who were party to the Division Bench Judgment. As a

matter of fact, Mr. Giri has firstly created a ghost in his mind

and then has given a stick in the hands of ghost for running

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

34/89

away from its shadow by assuming that ratio of earlier Division

Bench judgment in the case of Smt. Renu Kumari Pandey

(supra) has been called in question by the referring Division

Bench.

The crucial question however would be where is the

ghost? In my view, the submissions of Mr. Giri for recusal of

Hon‟ble the Chief Justice is in fact a bench hunting tactics,

which has to be deprecated in the strongest terms, in view of the

law laid down in the case of Sukh Dev Raj Vs. Emperor reported in

AIR 1932 Lahore 485 (Full Bench) wherein it was held that a

statement made by a counsel before the Judges of Full Bench to

the effect that his instructions are that his client does not wish

the matter to be argued before the Bench as constituted, is a

deliberate and intentional insult to the Court and that it is highly

improper on the part of the counsel to make such a statement

which actually amounts to a Contempt of Court.

To me it also appears that Mr. Giri is apprehensive

that as he has no answer to the law laid down by the earlier

Division Bench in the case of Smt. Renu Kumari Pandey (supra)

whose judgment was delivered by a Division Bench presided by

the Hon'ble Chief Justice, he wants her recusal for taking a

chance before another Bench. Such approach of a senior counsel

has been only recently been seriously frowned and depracated

by the Apex Court in the case of Subrata Roy Sahara Vs. Union

of India & Ors. in a well considered judgment dated 6.5.2014 in

a Writ Petition (Criminal) No.57 of 2014 in the following

words:-

“10. We have recorded the above narration, lest we are accused

of not correctly depicting the submissions, as they were canvassed

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

35/89

before us. In our understanding, the oath of our office, required us

to go ahead with the hearing. And not to be overawed by such

submissions, in our view, not hearing the matter, would constitute

an act in breach of our oath of office, which mandates us to perform

the duties of our office, to the best of our ability, without fear or

favour, affection or ill will. This is certainly not the first time, when

solicitation for recusal has been sought by learned counsel. Such a

recorded peremptory prayer, was made by Mr. R.K. Anand, an

eminent Senior Advocate, before the High Court of Delhi, seeking

the recusal of Mr. Justice Manmohan Sarin from hearing his

personal case. Mr. Justice Manmohan Sarin while declining the

request made by Mr. R.K. Anand, observed as under.

“The path of recusal is very often a convenient and a soft

option. This is specially so since a Judge really has no

vested interest in doing a particular matter. However, the

oath of office taken under Article 219 of the Constitution of

India enjoins the Judge to duly and faithfully and to the best

of his knowledge and judgment, perform the duties of office

without fear or favour, affection or ill will while upholding

the constitution and the laws. In a case, where unfounded

and motivated allegations of bias are sought to be made

with a view of forum hunting/Bench preference or brow-

beating the Court, then, succumbing to such a pressure

would tantamount to not fulfilling the oath of office.”

The above determination of the High Court of Delhi was assailed

before this Court in R.K. Anand v. Delhi High Court, (2009) 8 SCC

106. The determination of the High Court whereby Mr. Justice

Manmohan Sarin declined to withdraw from the hearing of the case

came to be upheld, with the following observations:

“The above pasage, in our view, correctly sums up what

should be the Court‟s response in the face of a request for

recusal made with the intent to intimidate the court or to get

better of an „inconvenient‟ judge or to obfuscate the issues

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

36/89

or to cause obstruction and delay the proceedings or in any

other way frustrate or obstruct the course of justice.”

(emphasis is ours)

11. In fact, the observations of the High Court of Delhi and

those of this Court reflected, exactly how it felt, when learned

counsel addressed the Court, at the commencement of the hearing.

If it was learned counsel‟s posturing antics, aimed at bench-hunting

or bench-hopping (or should we say, bench-avoiding), we would

not allow that. Affronts, Jibs and carefully and consciously planned

snubs could not deter us, from discharging our onerous

responsibility. We could at any time, during the course of hearing,

walk out and make way, for another Bench to decide the matter, if

ever we felt that, that would be the righteous course to follow.

Whether or not, it would be better for another Bench to hear this

case, will emerge from the conclusions, we will draw. In the course

of the present determination.”

Recusal of a judge on the ground of apprehension of

bias is only a part of the well enshrined principle of natural

justice. The first requirement of natural justice is that the judge

should be impartial and neutral and must be free from bias. He is

supposed to be indifferent to the parties to the controversy. He

cannot act as judge of a cause in which he himself has some

interest either pecuniary or otherwise as it affords the strongest

proof against neutrality. He must be in a position to act

judicially and to decide the matter objectively. Reference in this

connection may usefully be made to the judgment of the Apex

Court in the case of J. Mohapatra & Co. V. State of Orissa reported

in (1984) 4 SCC 103.

Bias is of three types; (i) Pecuniary bias, (ii) Personal

bias, and (iii) Official bias or bias as to subject-matter. As with

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

37/89

regard to pecuniary bias, it is well settled that „the least

pecuniary interest in the subject-matter of the litigation will

disqualify any person from acting as a judge‟. Reference in this

connection may be made to the observations made by Justice

Stephen in the case of R. v. Farrant reported in (1987) QB 58 (60).

Griffith and Street in their treaties Principles of Administrative

Law, 4

th

Edn., at page 156 have taken a view that a pecuniary

interest, however slight, will disqualify, even though it is not

proved that the decision is in any way affected‟. In Halsbury‟s

Laws of England, 4

th

Edn., Vol. 1, para-68, it has been stated

that there is a presumption that any financial interest, however

small, in the matter in dispute disqualifies a person from

adjudicating. The same principle has been followed in English

decision reported in 77 ER 646 and in the case of Dimes v. Grand

Junction Canal reported in (1852) 3 HLC 759.

The principle as with regard to pecuniary bias is also

accepted in India as may be found from the judgment of the

Apex Court in the case of Manak Lal v. Dr. Premchand reported in

AIR 1957 SC 425 wherein Hon‟ble Justice Gajendragadkar (as his

Lordship then was) had observed:-

“It is obvious that pecuniary interest, however small it may

be in a subject-matter of the proceedings, would wholly

disqualify a member from acting as a judge.”

Later on, Hon‟ble Justice Gajendragadkar in the case

of Jeejeebhoy v. Asstt. Collector of Thana reported in AIR 1965 SC

1096 had reconstituted the Bench on an objection being taken on

behalf of the interveners in Court on the ground that the Chief

Justice, who was a member of the Bench was also a member of

the cooperative society for which the disputed land had been

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

38/89

acquired. The same view in fact has also been taken

subsequently by the Apex Court in the case of J. Mohapatra & Co.

v. State of Orissa reported in (1984) 4 SCC 103.

The second type of bias is a personal bias. A number

of circumstances may give rise to personal bias. Here a judge

may be a relative, friend or business associate of a party. He

may have some personal grudge, enmity or grievance or

professional rivalry against him. In view of these factors, there is

every likelihood that the judge may be biased towards one party

or prejudiced towards the other, as has been also observed by

Griffith and Street in their book Principles of Administrative

Law, 4

th

Edn., p. 156' and De Smith in his treatise Judicial

Review of Administrative Action, 1980, p. 265'.

The above principle has also been accepted in India

also as may be found from the judgment of the Apex Court in

the case of State of U.P. V. Mohd. Nooh reported in AIR 1958 SC 86,

in the case of Mineral Development Ltd. Vs. State of Bihar reported in

AIR 1960 SC 468 and in the case of Meenglass Tea Estate Vs.

Workmen reported in AIR 1963 SC 1719. The classic case of A.K.

Kraipak Vs. Union of India reported in AIR 1970 SC 150 is still a

benchmark as with regard to personal bias and has been

followed by the Apex Court in a number of subsequent decisions

including in the case of S.P. Kapoor Vs. State of H.P. reported in

AIR 1981 SC 2181, in the case of Ashok Kumar Yadav Vs. State of

Haryana reported in AIR 1987 SC 454, in the case of Sheonandan

Paswan Vs. State of Bihar reported in AIR 1987 SC 877 as well as in

the case of Baidyanath Mahapatra Vs. State of Orissa reported in AIR

1989 SC 2218.

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

39/89

The third type of bias is official bias or bias as to the

subject-matter. According to Griffith and Street in their book

'Administrative Law, 4

th

Edn., p 156', only rarely will this bias

invalidate proceedings. According to them, a mere general

interest in the general object to be pursued would not disqualify

a judge from deciding the matter and there must be some direct

connection with the litigation. Professor Wade in the

'Administrative Law, 1988, pp. 489-93' remarks that ministerial

or departmental policy cannot be regarded as a disqualifying

bias. The landmark judgment on the official bias of the English

court is the case of Ridge v. Baldwin reported in (1963) 2 All ER 66.

The above principle has been accepted in India also

and mere „official‟ or „policy‟ bias may not necessarily be held

to disqualify an official from acting as an adjudicator unless

there is total non-application of mind on his part or he has acted

as per dictation of the superior authority instead of deciding the

matter independently or has pre-judged the issue or has taken

improper attitude to uphold the policy or the department, so as to

constitute a legal bias. Reference in this connection may be

usefully made to the judgment of the Apex Court in the case of

Gullapalli Nageshwara Rao v. A.P. State Road Transport Corpn.

(Gullapalli I) reported in AIR 1959 SC 308.

The touchstone of official bias, therefore, in the

words of De Smith in his treatise Judicial Review of

Administrative Action, 1980, p. 262' is that the „real likelihood‟

of bias' which means at least substantial possibility of bias. De

Smith in his aforementioned treatise is also of the view that it

should not be forgotten that the test of a real likelihood of bias

must be based on the reasonable apprehensions of a reasonable

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

40/89

man fully apprised of the facts. It is no doubt desirable that all

judges, like Caesar‟s wife must be above suspicion, but it would

be hopeless for the courts to insist that only „people who cannot

be suspected of improper motives‟ were qualified at common

law to discharge judicial functions, or to quash decisions on the

strength of the suspicions of fools or other capricious and

unreasonable people. The following observation of Justice Frank

in the case of Linahan Re reported in (1943) 138 F 2

nd

650 is locus

classicus and worth quoting:-

“If, however, „bias‟ and „partiality‟ be defined to mean the total

absence of preconceptions in the mind of the Judge, then no one

has ever had a fair trial, and no on ever will. The human mind,

even at infancy, is no blank piece of paper. We are born with

predispositions and the processes of education, formal and

informal, create attitudes which precede reasoning in particular

instances and which, therefore, by definition are prejudices.”

The aforementioned views of Justice Frank has been

approved in India also by the Apex Court in the case of

International Airport Authority v. K.D. Bali reported in AIR 1988 SC

1099 and again in the case of Secretary to Govt. Transport Deptt. v.

Munuswamy reported in AIR 1988 SC 2232. Thus, reasonable

apprehension in the mind of the reaonable man is necessary and

such reasonable apprehension must be based on cogent

materials. It is this aspect of the matter which has been expanded

and explained by the Apex Court in the case of International

Airport Authority (supra) that there must be reasonable evidence

to satisfy that there was a real likelihood of bias and vague

suspicions of whimsical, capricious and unreasonable people

should not be made the standard to regulate normal human

conduct. The following observations of Justice John Clarke in

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

41/89

this regard as quoted in the case of Linahan Re(supra) is worth

quoting:-

“I have never known any judges, no difference

how austere of manner, who discharged their judicial

duties in an atmosphere of pure, unadulterated reason.

Alas! We are „all the common growth of the Mother

Earth‟ – even those of us who wear the long robe.”

When Mr. Giri submits that Hon‟ble the Chief Justice

should not participate in the Full Bench proceedings, he is

definitely not referring any of aforesaid these three types of bias.

A Judge, in fact, having delivered a judgment on the subject

matter, cannot be even said to have got biased either personally

or officially. Every day a Judge takes a view sitting singly,

which is approved or overruled by the Division Bench or the

view of the Division Bench is either approved or overruled by

the Full Bench. Can it, therefore, be said that only because a

Judge had rendered a judgment regarding a particular view, he

becomes obsessed with his view? In my opinion, that would

amount to question the whole judicial system. In a multi judges

court, the view of a judge is not his particular view and in fact

whatever judgment is rendered by him sitting Singly or in

Division or in Full Bench is the view of the Court.

Nonetheless, since Mr. Giri has sought recusal of

Hon‟ble the Chief Justice from the Full Bench by expanding the

doctrine of judicial obstinacy and the apprehended bias on

account of participation of Hon‟ble the Chief Justice in the Full

Bench, I would like to go into the matter even deeper by

examining the law on the subject. The issue, relating to conflict

of interest and recusal of Judges, was also directly gone into at

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

42/89

length by the Court of Appeal in the case of Locabail UK Limited

Vs. Bayfield Properties Limited reported in (2000) QB 451 wherein the

following situations for recusal of a Judge were enumerated:-

“(1) that disqualification for direct personal interest (the

Pinochet situation) was automatic irrespective of the

strength of such interest, (subject to the de minimis rule) or

the judge‟s state of knowledge of it; and waiver could only

be made by parties to the litigation in clear and unequivocal

terms and with full knowledge of the relevant facts.

(2) that in any case of personal embarrassment or of automatic

disqualification, the judge should (if he had knowledge of

his interest before objection was made) recuse himself at the

earliest possible stage;

(3) in any other case, when circumstances could be thought to

give rise to real danger of bias, the Judge should make

disclosure, as soon as possible, once he became aware of

the matter, to give the opportunity for representations. What

constituted appropriate disclosure depended on the stage

reached in the proceedings: more was required by way of

inquiry and disclosure before than towards the end of

proceedings. If after disclosure was made, no objection was

taken to his hearing the case, no subsequent complaint of

bias could successfully be made;

(4) Different standards applied to members of the two branches

of the legal profession when they sat as a part-time judges.

Barristers were independent; and hence were deemed

ignorant of and uninvolved in the affairs of the other

members of chambers – the analysis is, in my view, more

theoretical than real! By contrast, solicitors, being in

partnership, should investigate with their own firm whether

any association with one of the parties might disqualify

them from sitting.”

Having held so in the Lockbail case (supra) the Court of

appeal had also classified the factors for recusal of judges under

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

43/89

the three heads, namely,

“(A) factors which would always be irrelevant i.e. a judge‟s:

(1)religion, or (2)ethnic (Seer Technologies v Saad Abbas

(2000) Ch D Pumfrey J, TLR 16/3/2000) or national (3)

origin, (4) gender, class, means or sexual orientation

(B) factors which would not ordinarily be relevant:

(1) a judge‟s social or educational or service or

employment background or history;

(2) social or educational or service or

employment background or history of any

member of the judge‟s family;

(3) a judge‟s previous political association;

(4) membership of social or sporting or

charitable bodies;

(5) Masonic associations;

(6) previous judicial decisions;

(7) extra-curricular utterances (whether in

textbooks, lecturers, speeches, articles,

interviews, reports or responses to

consultation papers);

(8) previous receipt of instructions to act for or

against any party or solicitor or advocate

engaged in a case before him;

(9) membership of the same circuit, local Law

Societies or Chambers.

(C) factors which would usually be relevant:

(1) Personal friendship or animosity between the judges

and any member of the public involved in the case;

(2) Close acquaintance of the judge with any member of

the public involved in a case, particulalry if the credibility

of the individual could be significant in the decision of a

case (unsuccessfully relied on in Man „O‟ War Station Ltd v

Auckland CC, (CPC Appeal No 2, 2001) where the

acquaintance was insufficient;

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

44/89

(3) where in a case equally the credibility of any

individual was an issue to be decided by the judge, he had in

a previous case rejected the evidence of that person in such

outspoken terms as to throw doubt on his ability to

approach such person‟s evidence with an open mind on any

later occasions;

(4) where on any question in issue in proceedings before

him, the judge had expressed views, particularly in the

course of the hearing, in such extreme and unbalanced

terms as to throw doubt on his ability to try the issue with

an objective judicial mind. But the fact that a judge earlier,

in the same case or in a previous case, had commented

adversely on a party or witness, or found the evidence of a

party or witness unreliable, was by itself no ground for

recusal or removal. There is no reason for a Lord Justice to

recuse himself from hearing an appeal by reason of his

earlier involvement, whilst a puisne judge in the Chancery

Division, in interlocutory proceedings: Woolwich Building

Society v Paisy Star 16/3/2000 (CA). Where permission to

appeal had been granted following a renewed oral

application, the Lord Justice who had initially been minded

to refuse leave nonetheless sits on the appeal: Mohamed v

Morris TLR 1/3/2000. This was elaborately confirmed in

Sengupta v GMC (2002) EWCA (iv 1104).

(5) if for any other reason there were real grounds for

doubting the ability of the judge to ignore extraneous

consideration, prejudices and predilections and to bring an

objective judgment on an issue before him.”

(underlining for emhpasis)

Thus, neither English Law nor Indian Law nor the

Patna High Court Rules nor even any precedent can come to

rescue Mr. Giri as with regard to Hon‟ble the Chief Justice

recusing herself from the Full Bench.

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

45/89

In my considered view, though the Judges are also

mortal and human being and thus, not infallible but, then, it

would be too naive to ask a judge to recuse himself or herself

only because he/she may have decided some similar cases

earlier. In this regard and on this aspect, I would not like to say

anything more but to quote Justice Frankfurter who in the case

of Public Utilities Commission of the District of Columbia Vs. Pillak

reported in (1951) 343 US 451, had said as follows:-

“The judicial process demands that a Judge may

move within the framework of relevant legal rules and the

court covenanted modes of thought for ascertaining them. He

must think dispassionately and submerge private feeling on

every aspect of a case. There is a good deal of shallow talk

that the judicial robe does not change the man within it. It

does. The fact is that on the whole Judges do lay aside private

views in discharging their judicial functions. This is achieved

through training, professional habits, self discipline and that

fortunate alchemy by which men are loyal to the obligation

with which they are interested. But it is also true that reason

cannot control the subconscious influence of feelings of which

it is unaware. When there is ground for believing that such

unconscious feelings may operate in the ultimate judgment or

may not unfairly lead others to believe they are operating,

Judges recuse themselves. They do not sit in judgment.....”

The two judgments relied by Mr. Giri in support of his

submission of judicial obstinacy to say the least is wholly

inapplicable in the present case. The reliance placed by Mr. Giri

on the judgment of the Division Bench of this Court in the case

of Prathmik Adhyapak Sangh Vs. The State of Bihar & Ors. reported in

2003(2)PLJR 305 is wholly misplaced. In that case the question,

which had arisen that the learned single Judge, who was in his

administrative capacity made a member of the Fitment

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

46/89

Committee of the pay-scale of the State Government, had

recorded certain view with regard to grant of pay-scale to the

untrained teachers. Subsequently, when a batch of writ

applications was filed, questioning the government decision

based on the aforesaid recommendation of the Fitment

Committee, it was held by the Division Bench that learned

Single Judge ought to have not heard the matter as would be

apparent from the following passage of the aforesaid judgment:-

“13. The fact remains that the Hon‟ble Judge who has decided

the present cases was the Chairman of the Fitment

Appellate Committee and in that capacity he has made

recommendation in favour of certain class of untrained

matric teachers who have higher qualifications and has not

allowed the claim of untrained intermediate teachers. One

of the grievances in the writ applications was made by the

intermediate untrained teachers for treating them similar to

the graduate untrained teachers whose claim was negatived

by the Fitment Appellate Committee. The matter was

considered and directions have been issued to implement the

recommendations made by him as Head of the Committee as

stated above and the claim of untrained intermediate

teachers has been rejected.

16. After having given thoughtful consideration to the entire

facts and circumstances of the case, we are of the view that

it is not necessary to dwell upon the question of bias.

However, the fact remains that the Hon‟ble Jude has dealt

with the materials in controversy earlier as Chairman and

in that situation relying upon the dictum of Lord Hewart,

C.J. as quoted above that justice should not only be done,

but should manifestly and undoubtedly be seen to be done

without meaning anything against the Hon‟ble Judge, we

are of the view that the order rendered by the learned Single

Judge is fit to be set aside.”

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

47/89

The judgment referred to by Mr. Giri, learned senior

counsel for the petitioner in the case of State of W.B. & Ors. Vs.

Shivananda Pathak & Ors. reported in 1998(5)SCC 513 also is

wholly misplaced. In that case Mr. Justice A. K. Sengupta,

Hon‟ble Judge of the Calcutta High Court sitting singly, had

disposed of the writ application on 21.8.1984 with certain

direction. Such order of Justice A. K. Sengupta was

subsequently modified by the Division Bench on 17.1.1985.

Subsequently, a fresh writ application was filed in pursuance of

that direction issued by Justice A. K. Sengupta but, the learned

single Judge did not grant the relief and instead observed that

since the direction issued by justice A. K. Sengupta was

modified, it was for the State Government to consider the claim

in accordance with the rules in terms of the earlier direction of

the Division Bench dated 17.1.1985. An appeal was filed against

this judgment of the learned single judge and the appeal was

disposed of by a Division Bench which included Justice A. K.

Sengupta. The question, therefore, arose as to whether Justice A.

K. Sengupta could sit in the Division Bench to decide the appeal

against that judgment and in that regard it was held by the Apex

Court that he ought to have not heard the matter in Division

Bench.

Thus, on reading of the judgment of the Apex Court in

the case of Shivananda Pathak (supra), it would be clear that

judicial obstinacy can be treated as a form of judicial bias. If a

judgment is over-ruled by the higher court, the judicial

discipline requires that the judge, whose judgment is over-ruled,

must submit to that judgment. He cannot, in the same

proceedings or in collateral proceedings between the same

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

48/89

parties, re-write the overruled judgment. Even if it was a

decision on a pure question of law, which came to be overruled,

it cannot be reiterated in the same proceedings at the subsequent

stage by reason of the fact that the judgment of the higher court,

which has overruled that judgment, not only binds the parties to

the proceedings but, also the judge who had earlier delivered

that decision. That judge may have his occasion to reiterate his

dogmatic views on a particular question of common law or

constitutional law in some other case but, not in the same case.

If it is done, it would be exhibitive of his bias in his own favour

to satisfy his egoistic judicial obstinacy.

In the present case, however, merely because a Division

Bench consisting of Hon‟ble the Chief Justice in the case of

Smt. Renu Kumari Pandey (supra), after considering the entire

provision of the Rules, had gone to hold that any person, being

an aspirant for the post of Panchayat Shiksha Mitra after

abolition of the post, cannot be appointed on the post of

Panchayat Teacher, does the element of judicial obstinacy get

attracted? It has to be in this regard kept in mind that such view

was taken not only by Hon‟ble the Chief Justice in the Division

Bench but, even much earlier the same view was recorded by

this Court in the case of Alok Kumar Vs. The State of Bihar & Ors.

reported in 2009(2)PLJR 929 wherein it was held as follows:-

“13. There is another reason for holding the impugned order of

termination bad. The Block Development Officer, by the

impugned order has not only terminated petitioners from

their post of Panchayat/Prakhand Teachers, but have also

directed to appoint the complainants (Respondents) on the

post of Shikcha Mitra with all consequential benefits. There

is specific direction of Director, Primary Education in this

regard that since after 1.7.2006, no post of Shikcha Mitras

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

49/89

are existing, as such no one can be appointed on these

posts.”

It has to be noted that it is actually this judgment in the

case of Alok Kumar (supra) which has been referred to and

relied by the Hon‟ble Single Judge in the impugned judgment

out of which the present appeal arises.

As a matter of fact, even the earlier a Division Bench in

the case of Umesh Chandra Shiva Vs. The State of Bihar & Ors.

reported in 2012(1)PLJR 585 on 14.3.2011 had taken a similar

view and the case of Umesh Chandra Shiva (supra) was decided

prior to the judgment in the case of Smt. Renu Kumari Pandey

(supra), which was delivered only on 23.8.2011. This Court in

the case of Umesh Chandra Shiva had held as follows:-

“5. A question, would now arise as to how the vacancies which

has been created on account of cancellation of the

appointment of Alok Kumar has to be filled up. Mr. Singh

would contend that as the complaint was pending on the

date Alok Kumar got absorbed on the post of Panchayat

Shikshak i.e. 01.07.2006, the benefit of such cancellation of

appointment should go to the appellant writ petitioner

Umesh Chandra Shiva as he was found to be best among the

backward category. Interesting though the aforesaid

submission may be but then the Rules namely Bihar

Prarambhik Shikshak Nioyojan and Shikshak Niamawali

Adhiniyam-2006, does not permit selection earlier made for

the post of Panchayat Shiksha Mitra to be either saved or

retained for any purpose, inasmuch as, Rule-18 and 20 read

in tandem would make it absolutely clear that all circulars

and guidelines relating to selection and appointment on the

post of Panchayat Shikshak were repealed as a whole and

therefore, once the saving clause also was limited to

reserving the rights of already appointed Shiksha Mitra

either in respect of their salary or service condition, it has

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

50/89

to be necessarily held that the earlier selection and

preparation of panel in which Umesh Chandra Shiva had

been found to be best among the backward candidate was

limited for the post of Panchayat Shiksha Mitra and on that

basis, he cannot be appointed on the post of Panchayat

Shikshak after 01.07.2006 in view of the aforementioned

2006 Rules.”

Thus, in my considered view, merely because Hon‟ble

the Chief Justice has been party to the earlier Division Bench in

the case of Smt. Renu Kumari Pandey (supra), will be no reason

for her to recuse herself, specially when the view taken by the

Division Bench in the case of Smt. Renu Kumari Pandey (supra)

even after its being assailed before the Apex Court was not

interfered, while dismissing the Special Leave Petition by an

order dated 09.01.2012, wherein it was held as follows:-

“Heard learned counsel for the petitioner.

We find that the High Court has discussed the facts

before coming to the conclusion and we are not inclined to

interfere with the order of the High Court.

The special leave petition is dismissed with liberty to the

petitioner to file a review application before the High Court. We

make it clear that we are not expressing any opinion one way or the

other on the merits of such review application. If such an

application is made, the High Court may deal with on its own

merits and in accordance with law.”

The submission of Mr. Giri that participation of

Hon‟ble the Chief Justice in the proceeding of the Full Bench, in

this case, may lead to judicial obstinacy in fact is an argument of

desperation. I am remembered of a case of Girija Shankar Vs.

S.D.O. Harda reported in AIR 1973 MP 104 decided by the Full

Bench of the Madhya Pradesh High Court to which Hon‟ble the

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

51/89

Chief Justice J.S. Verma (as his lordships then was) was a party

wherein the law was laid down that a holder of a current charge

of the post cannot exercise the statutory power of a regular

incumbent of the post. This view taken by the Full Bench in the

case of Girija Shankar was cited before Hon‟ble Justice Verma

himself when he was as a Judge of the Apex Court in the case of

Ramakant Shripad Sinai Advalpalkar Vs. Union of India & Ors.

reported in 1991 Supp (2) SCC 733 and the Division Bench of

Apex Court to which Hon'ble Justice J.S. Verma (As his

Lordship then was) was a party went to decide the case by

placing reliance on the judgment of the Full Bench of Madhya

Pradesh High Court in the case of Girija Shankar (supra) in the

following words.

“6. We may recall the observations of this Court in the context

of a rule requiring as a condition for eligibility that the

“person should have worked on the post for seven years”

where the difference between merely working on the post

and holding a post was indicated:

“Perhaps there would have been some merit in the

submission on behalf of the petitioner if in Rule 3(b)

the words used were „who held the post‟ but the

language in Rule 3(b) is so materially different and

it speaks that a person should have worked on the

post. The State was apparently wrong in introducing

the element of rank for the purpose of Rule 3(b).”

In Girja Shankar v. S.D.O., Harda, it was held that a

“person appointed to be incharge of the current duties of

the office” did not hold the rank to be incharge of the

current duties of the office” did not hold the rank and,

therefore, could not discharge the statutory functions

assigned to the post. In the present case appellant cannot,

on the strength of the office-order dated 30

th

August 1963,

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

52/89

claim to have been promoted to the post of “Treasurer”.

The first contention is, therefore, insubstantial.”

This is not the solitary instance but in fact there can be

any number of instances where a Judge in his long career having

taken his earlier view sitting Singly or in Division has an

occasion to answer the similar question in Full Bench or even

before the Apex Court and he can definitely be not asked to

recuse himself only because he had decided some case of the

similar nature earlier.

In this regard, I must confess that I have not been able to

get even a single authority of the Apex Court or any High Court,

in my massive search for last six weeks since the judgment was

reserved, which could even remotely suggest that only because a

judge has earlier expressed his views in any judgment sitting

Singly or in Division Bench, he/she is precluded from

participating in the Full Bench. On the contrary, I have been

able to lay my hand on a number of Full Bench decisions of this

Court where a Judge participating in the Full Bench had the

occasion to consider his own earlier judgment given by him

sitting Singly or in Division Bench. In this context, I would also

like to rely on a few of the cases of this Court only by way of

illustration.

In this regard I would firstly refer to a Full Bench

judgment of this Court in the case of Sk. Latfur Rahman and 2

Others Vs. The State reported in 1985 PLJR 640 wherein the

correctness of an earlier Division Bench judgment in the case of

Satyanarayan Yadav Vs. The State of Bihar reported in 1977 BBCJ 442

rendered by a Division Bench of Hon‟ble the Mr. Justice Uday

Sinha (as his Lordship then was) was called in question. Hon‟ble

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

53/89

Justice Sinha was not only party to the Full Bench in the case of

L.K. Latfur Rahman (supra) but, had also in his concurring

judgment while overruling his own earlier Division Bench

judgment in the case of Satyanarayan Yadav (supra) had

admitted the error in his earlier view.

In yet another Full Bench judgment in the case of

Mohammad Zainul Abedin & Anr. Vs. The State of Bihar & Ors.

reported in 1985 PLJR 58 which again involved correctness of

earlier view recorded by Hon‟ble Mr. Justice H.L. Agarwal (as

his Lordship then was) sitting singly in the case of Rajendra Singh

Vs. The State of Bihar & Ors. reported in 1982 PLJR 159. Not only

Justice Agarwal was a party to the Full Bench but had also again

accepted the view of the Full Bench that the law laid down in

the case of Rajendra Singh (supra) by him had not correctly laid

down the law and in fact in his concurring judgment, he too had

gone to explain his earlier view.

In the Full Bench judgment in the case of Mahanth

Siyaram Das & Anr. Vs. The State of Bihar & Ors. reported in 1985

PLJR 101, correctness of Division Bench judgment in the case of

Kesara Devi Vs. State of Bihar reported in 1984 PLJR 209 rendered

by Hon'ble Mr. Justice B.P.Jha (as his lordship then was) was

gone into by the Full Bench consisting also of Justice B.P. Jha

and in fact the Full Bench had overruled the Division Bench

judgment in the case of Kesara Devi (supra).

I would not like to multiply a number of similar

instances but, would like to conclude on this aspect by referring

to yet another Full Bench judgment in the case of Ram Chandra

Singh Vs. The State of Bihar & Ors. reported in 1987 PLJR 47 where

Hon‟ble Mr. Justice N.P. Singh (as his lordship then was), being

a member of the Full Bench, had the occasion to consider the

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

54/89

correctness of his own Division Bench in the case of Prabhunath

Singh Vs. The State of Bihar reported in 1980 BBCJ 344 and had

agreed that his earlier view recorded in the Division Bench in

the case pf Prabhunath Singh (supra) was not a correct law. In

fact there can be innumerable examples even by way of

illustration that never in the history of Patna High Court, such an

objection was raised by a senior counsel as with regard to

participation of a judge in the Full Bench proceedings only

because he or she had earlier delivered some judgment on the

same point.

I have also carefully examined the aspect as to whether

the view taken by the Division Bench headed by Hon‟ble the

Chief Justice in the case of Smt. Renu Kumari Pandey (supra)

has been ever doubted by any other Division Bench. Mr. Giri of

course has not been able to produce any such direct judgment of

the Division Bench. On the contrary, I find that even before the

judgment in the case of Smt. Renu Kumari Pandey (supra) was

delivered by the Division Bench of this Court presided by

Hon‟ble the Chief Justice on 23.8.2011, the first judgment

directly on this point was delivered by another Division Bench

headed by Justice Smt. T. Meena Kumari delivered on

14.3.2011 in the case of Umesh Chandra Shiva Vs. The State of Bihar

& Ors. reported in 2012(1) PLJR 585 wherein it was held that upon

enforcement of the 2006 Rules and repeal of the earlier

provision relating to Panchayat Shiksha Mitra, no one could be

appointed as a Panchayat Shiksha Mitra/Panchayat Teacher on

the basis of the old selection and panel on or after 1.7.2006.

Let it be also noted that the similar view has also

been taken in a number of decisions by the learned Single Judge

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

55/89

of this Court, some of whom have also been reported such as in

the case of Alok Kumar Vs. The State of Bihar & Ors. reported in

2009(2)PLJR 929, in the case of Rima Kumari Vs. The State of Bihar

& Ors. reported in 2012(1) PLJR 107, in the case of Subodh Kumar

Yadav Vs. The State of Bihar & Ors. reported in 2012(3)PLJR 261, in

the case of Saroj Kumar & Ors. Vs. The State of Bihar & Ors. reported

in 2013(2)PLJR 897 and in the case of Dayanand Yadav & Anr. Vs.

The State of Bihar & Ors. reported in 2013(4) PLJR 66 and if the

submission of Mr. Giri, therefore, has to be accepted, in that

event, every Judge of this Court who, once has expressed any

view on any subject, would stand disqualified to be a member of

the Full Bench. That in fact would really amount to creating an

absurd situation because for last eight years, the dispute relating

to Panchayat Shiksha Mitra/Panchayat Teacher has been in the

roster of a number of Judges sitting Singly or in Division Bench

and if all of them cannot hear the matter because at one point of

time they had expressed one view or the other with regard to

Panchayat Shiksha Mitra, the constitution of Full Bench itself

will be practically impossible.

Thus, whatever was said with regard to judicial

obstinacy by the Apex Court in the case of Shivananda Pathak

(supra), in my view, will not at all be applicable in the fact of the

present case. It has already been found by us that till date, the

judgment of the Division Bench in the case of Smt. Renu

Kumari Pandey (supra) has remained a good law and at least this

Full Bench is not hearing an appeal arising out of the case of

Smt. Renu Kumari Pandey (supra). It may be that since that

judgment of Smt. Renu Kumari Pandey (supra) is against the

appellant of the present appeal and Mr. Giri appearing for her

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

56/89

has to cross that hurdle to satisfy us as to the infirmity or

incorrectness, if any, in the view recorded in the case of Smt.

Renu Kumari Pandey (supra). I have, therefore, no hesitation in

my mind that such submission of Mr. Giri for recusal of Hon'ble

the Chief has no merit and is accordingly rejected.

Coming to the merit of this appeal, Mr. Giri has

assailed the order of the learned single Judge primarily on two

grounds. Firstly, he is of the view that in the facts of the present

case, the impugned order passed by the District Magistrate,

Samastipur dated 26.6.2010, which has been set aside by the

learned single Judge, was passed in view of the direction of this

Court and, therefore, the question of jurisdiction would never

arise. Secondly, he has submitted that learned single Judge has

failed to take into account the effect of repeal in terms of Section

6 of the General Clauses Act, which is para-materia Section 8 of

the Bihar and Orissa General Clauses Act. According to him,

even if the provisions of Panchayat Shiksha Mitra were repealed

by the 2006 Rules, the pending proceeding, as with regard to the

selection and appointment of the appellant, could not have been

affected. Reliance in this regard has been placed by him on the

judgment of the Apex Court in the case of Gammon India Ltd. Vs.

Special Chief Secretary & Ors. reported in 2006(3)SCC 354. To that

extent, he has also questioned the correctness of the ratio laid

down by this Court in the case of Alok Kumar (supra) relied by

the learned single Judge in the impugned judgment under

appeal. According to him, the law in this regard has been

correctly laid down in the earlier judgment in the case of Kishori

Prasad Vs. The State of Bihar & Ors. reported in 2008(2)PLJR 458,

which having been not noticed in the case of subsequent

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

57/89

Division Bench judgment of Smt. Renu Kumari Pandey (supra),

will still govern the field.

Mr. Verma, learned counsel for the respondent, writ

petitioner, on the other hand, has submitted that there would be

no question of vesting of jurisdiction in the District Magistrate

by this Court, inasmuch as, the District Magistrate was required

to act in accordance with law as settled by this Court. In this

regard, he has relied on a circular issued by the Principal

Secretary to the Human Resources Development Department

dated 14.5.2009, which was issued in terms of judgment of this

Court dated 17.2.2009 laying down that even pending appeal

with regard to any dispute of Panchayat Shiksha Mitra was to be

adjudicated by the District Teachers Employment Appellate

Authority (hereinafter to be referred to as „the Tribunal‟).

Proceeding further, Mr. Verma has submitted that in the present

case, there would be no question of applicability of Section 6 of

the General Clauses Act, inasmuch as, the scheme, relating to

engagement of Panchayat Shiksha Mitra, was only by way of an

executive instruction and thus, not „enactment‟. He has also

submitted that the earlier Division Bench judgment in the case

of Kishori Prasad (supra), having not even noticed the provision

of Rule 20 of the 2006 Rules, is per incurrium and according to

him, the law in this regard has been correctly laid down in the

elaborate subsequent Division Bench judgment in the case of

Smt. Renu Kumari Pandey (supra), which now also stands

approved by Apex Court by way of dismissal of the Special

Leave Petition against the aforesaid judgment.

Coming to the question of jurisdiction of the District

Magistrate in the matter relating to examination of complaint by

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

58/89

the District Magistrate, this Court would find that the scheme of

engagement of Panchayat Shiksha Mitra was purely governed by

executive instruction contained in the Resolution of the

Secondary, Primary and Adult Education Department dated

21.6.2002. The power of engagement on the post of Shiksha

Mitra on contract basis for the period of eleven months was

vested in the Panchayat and its Sukh Suvidha Samiti. In the

whole of the resolution dated 21.6.2002, there was no provision

for interference by any authority of the Government. As a matter

of fact, the Block Development Officer became the appellate

authority only in the 2006 Rules, which came into force with

effect from 1.7.2006. As would be apparent from reading of the

2006 Rules, the entire matter, relating to employment on the

post of Panchayat Teacher, the jurisdiction was vested in the

Block Development Officer. The term 'Niyojan' used in Rule 18

of the 2006 Rules was/is capable of wider import than the direct

recruitment on the post of Panchayat Teacher as envisaged in the

2006 Rules. According to me, any dispute even as with regard to

automatic absorption of the working Panchayat Shiksha Mitra as

on 1.7.2006 as envisaged in Rule 20(iii) of the 2006 Rules was

also capable of being agitated only before the Block

Development Officer. This becomes more clear from the

clarification issued by the State Government and its circular

dated 10.11.2006, which reads as follows:-

Þi=kad 7@fo01&50@2006 ek0 1899

ekuo lalk/ku fodkl foHkkx] fcgkj

izs’kd]

v”kksd dqekj flag]

funs”kd izk0

lsok esa

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

59/89

ftyk inkf/kdkjh] dSewj A

iVuk fnukad 10-11-06

fo’k; %& iapk;r f”k{kk fe= ds fu;kstu ds laca/k esaA

egk”k;]

mi;qZDr fo’k;d vkids i=kad 316 ¼m0½ fnukad 12-10-06 ds izlax

esa dguk gS fd fcgkj iapk;r izkjafHkd f”k{kd ¼fu;kstu ,oa lsok “kRrZ½

fu;ekoyh] 06 1yh tqykbZ 06 ls iz[;kfir ,oa ykxw gS] ftldh dafMdk 4

,oa 9 esa mfYyf[kr izko/kkuksa ds vUrxZr izkjafHkd f”k{kdksa ds fu;kstu dh

dkjZokbZ izfØ;k/khu gSA

2- mDr fu;ekoyh ds izHkkoh gksrs gh frfFk ls dafMdk 20 ds vuqlkj

xzkeh.k {ks= esa iapk;r f”k{kk fe= ds fu;kstu ls lacaf/kr iwoZ dh lHkh

fu;ekoyh @ ladYi @ vkns”k @ vuqns”k ,oa ifji= vkfn fujLr gks x;s

gSA vr% 1&7&06 ds ckn iapk;r f”k{kk fe= ds :i esa fu;kstu laHko ugha

gSA

3- vxj fdlh iapk;r f”k{kk fe= ds fu;kstu ds laca/k esa f”kdk;r izkIr

gksrh gS vkSj tkWpksijkUr voS/k ik;k tkrk gS rks mUgsa gVk;k tk ldrk gS

ijUrq muds LFkku ij fdlh u;s iapk;r f”k{kk fe= dk fu;kstu

fu;ekuqdwy ugha gksxkA

fo”oklHkktu

g0 vLi’V

¼v”kksd dqekj flag½

funs”kd ¼izk0 f”k0½] fcgkj]

iVukA

Kkikad 1899 iVuk fnukad 10-11-06

izfrfyfi lHkh ftyk inkf/kdkjh ¼fcgkj½ dks lwpukFkZ ,oa vko”;d dk;kZFkZ

izsf’kr A

g0 vLi’V

¼v”kksd dqekj flag½

funs”kd ¼izk0 f”k0½] fcgkj]

iVukAÞ

(Underlining for emphasis)

Thus, when the appellant herself had filed her first

complaint as with regard to alleged illegal appointment of the

writ petitioner on 14.9.2006 as is also clearly mentioned in the

order of the District Magistrate dated 26.6.2010, the only thing

which could have been looked into was as to whether the

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

60/89

engagement of the writ petitioner as a Panchayat Shiksha Mitra

and his absorption as a Panchayat Teacher was in accordance

with law. As a matter of fact, when this Court, by an order dated

18.5.2007 in the writ application filed by the appellant, CWJC

No. 675 of 2007, assailing the order of the Block Development

Officer dated 25.1.2007, holding the engagement of the writ

petitioner to be justified and in accordance with law, was

assailed before this Court and the matter was remitted. In the

consequential order dated 12.07.2007 passed by District

Magistrate, Samastipur he had rejected the case of the appellant

by placing reliance on aforesaid Circular dated 10.11.2006. The

aforesiad order dated 12.7.2007, even though challenged by the

appellant in CWJC No. 11844 of 2007, has not been interfered

and as per the appellant, that writ application is still pending.

A question thus would arise as to whether the District

Magistrate could review his own order dated 12.7.2007 because

he himself in the aforesaid earlier order dated 12.7.2007 had

gone to hold that the appellant on account of abolition of the

post of Panchayat Shiksha Mitra could not be appointed whereas

in his subsequent order dated 26.6.2010, he, having held initial

engagement of the writ petitioner as Panchayat Shiksha Mitra to

be bad, had passed an order for his removal from the post of

Panchayat Teacher on which he had already been absorbed with

effect from 1.7.2006 and had also gone to issue a direction in the

same order dated 26.6.2010 for appointing the appellant as

Panchayat Shiksha Mitra. By now, it is well settled that the

power of review is a creature of statute and cannot be exercised

by any authority in absence of such power being vested in him.

That, however, will not be the end of the matter

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

61/89

because Mr. Giri has relied on the subsequent order of this Court

dated 3.2.2009 in C.W.J.C. No. 1732 of 2009 filed by the writ

petitioner and the order of Division Bench dated 08.10.2009 in

L.P.A. No.374 of 2009 filed by this very appellant which,

according to him, had vested jurisdiction in the District

Magistrate, Samastipur to decide the dispute as with regard to

engagement of the writ petitioner on the post of Panchayat

Shiksha Mitra and also for considering the case of the appellant

for such appointment. First of all, it has to be kept in mind that

the order dated 3.2.2009 was passed in a writ application filed

by the appellant assailing the order of termination dated

24.12.2008 passed by the District Magistrate and since that

order was passed without even notice much less affording an

opportunity of hearing to the writ petitioner, the order was

quashed and the matter was remitted back only on the point as

with regard to the engagement of the writ petitioner on the post

of Panchayat Shiksha Mitra/absorption as a Panchayat Teacher.

This had been done because of an order passed by the State

Government on 15.1.2009 authorizing the District Magistrate to

decide the complaint as with regard to engagement on the post

of Panchayat Shiksha Mitra made in the year 2003 and 2005.

The said circular of the State Government dated 15.1.2009 reads

as follows:-

^^i=kad 15

fcgkj ljdkj

ekuo lalk/ku fodkl foHkkx

izs"kd]

vk'kqrks"k] Hkk0iz0ls0

funs'kd izkFkfed f'k{kk

fcgkj iVukA

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

62/89

lsok esa]

lHkh ftyk inkf/kdkjhA

iVuk] fnukad 15@1@2009

fo"k;& o"kZ 2003 ,oa 2005 eas dh xbZ f'k{kd fu;qfDr ds laca/k esa

izkIr f'kdk;r i=ksa ds fu"iknu ds laca/k esaA

egk'k;]

mi;qZDr fo"k; ds laca/k eas dbZ ftyk f'k{kk v/kh{kdksa }kjk

i`PNk dh xbZ gS fd muds ftyksa eas vihyh; izkf/kdj ds xBu ds

i'pkr D;k o"kZ 2003 ,oa 2005 esa dh xbZ f'k{kd fu;qfDr ls

lacaf/kr iwoZ esa =Lr f'kdk;r i=ksa ds Hkh fu"iknu vc u;s xfBr

vihyh; izkf/kdkj }kjk fd;k tkrk gS ;k ugh\ bl laca/k esa iqu%

Li"V djuk gS fd uo xfBr vihyh; izkf/kdkj }kjk dsoy 2006

,oa 2008 dh f'k{kd fu;qfDr ds ekeys ij gh lquokbZ dh tk,xhA

'ks"k iwoZ ds o"kZ 2003 ,oa 2005 esa dh xbZ f'k{kd fu;qDr ds

lEcU/k esa izkIr f'kdk;r i=ksa dk fu"iknu lacaf/kr ftyk ds ftyk

inkf/kdkjh ds }kjk gh fd;k tk;xkA

vr% vkils vuqjks/k gS fd vkids vf/kuLFk yafcr 2003 ,oa

2005 ds f'kdk;r i=ksa ij ;Fkk'kh?kz vius Lrj ls lquokbZ dj

fu.kZ; ysus dk d"V djsaxsA

fo'oklHkktu

g0@&

¼vk'kqrks"k½

funs'kd izkFkfed f'k{kk

fcgkj] iVukA**

As a matter of fact, after passing of the order dated

3.2.2009, while the appeal filed by the appellant against the

aforementioned order dated 3.2.2009 was still pending, this

Court in its another order dated 17.2.2009 had issued a direction

to the State Government that all the pending matter relating to

complaints arising out of Panchayat Shiksha Mitra were to be

decided by the Tribunal and in compliance of the said direction,

a circular was issued by the Principal Secretary to the Human

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

63/89

Resources Development Department on 14.5.2009 taking away

the jurisdiction of the District Magistrate and vesting the same in

the Tribunal. To that extent, it would be absolutely necessary for

me to reproduce the aforesaid circular of the State Government

dated 14.5.2009, which reads as follows:-

^^i=kad 7@fu0 1&07@09 ----------------------@

fcgkj ljdkj

ekuo lalk/ku fodkl foHkkx

izs"kd]

vatuh dqekj flag]

ljdkj ds iz/kku lfpoA

lsok esa]

lHkh lnL;

ftyk f'k{kd fu;kstu vihyh; izkf/kdkjA

iVuk] fnukad --------------------------------@

fo"k;& f'k{kk fe=ksa ds fu;kstu esa lacaf/kr yafcr vihy@f'kdk;r

ds fu"iknu ds laca/k esaA

egk'k;]

mi;qZDr fo"k; ds laca/k esa dguk gS fd ekuuh; mPp

U;k;ky;] iVuk }kjk f'k{kkfe=ksa ds fu;kstu ls lacaaf/kr

vihy@f'kdk;r ls lacaf/kr ^^ca/k ekeyksa** esa fnukad 17-02-09 dks

ikfjr vkns'k ,oa dqN vU; leku ekeyksa esa ikfjr vkns'k esa ;g

U;k; fu.kZ; fn;k x;k gS fd f'k{kk fe=ksa ds fu;kstu ls lacaf/kr

vihy ds ekeys dk fu"iknu ftyk f'k{kd fu;kstu vihyh;

izkf/kdkj ds }kjk fd;k tk;sxkA foHkkx }kjk bl lEcU/k esa fof/k

foHkkx ls Hkh ijke'kZ izkIr fd;k x;k gSA

ekuuh; mPp U;k;ky; }kjk fofHkUu oknksa esa ikfjr vkns'k

rFkk fof/k foHkkx ls bl laca/k esa izkIr ijke'kZ ds vkyksd esa dguk

gS fd f'k{kk fe=ksa ds fu;kstu ls lacaf/kr vihy@f'kdk;r dk

fu"iknu vc ftyk f'k{kd fu;kstu vihyh; izkf/kdkj ds }kjk

fd;k tk;sxkA bl lEcU/k esa iwoZ esa fuxZr ifji= ,oa foKfIr

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

64/89

ftlesa ftyk inkf/kdkjh dks ,sls ekeys dh lquokbZ dj fu"iknu

djus dk funs'k fn;k x;k Fkk dks bl gn rd la'kksf/kr fd;k

tkrk gSA

fo'oklHkktu

g0@&

¼vatuh dqekj flag½

ljdkj ds iz/kku lfpoA

Kkikad 7@fu0 1&07@09 681 @ iVuk] fnukad 14-05-09**

(underlining for emphasis)

The District Magistrate, Samastipur, in fact, who has

passed the impugned order dated 26.6.2010 giving rise to writ

application and now the appeal, was well aware of the

jurisdiction of the District Magistrate being taken away by the

Government by the aforementioned circular dated 14.5.2009 in

terms of the direction of this Court dated 17.2.2009, which

becomes manifest from the fact that when this Court by an order

dated 16.7.2009 in LPA No. 713 of 2009 filed by one, Arun

Kumar Arun, had remitted the matter to the District Magistrate,

Samastipur to decide with regard to his grievance in relation to

engagement on the post of Panchayat Shiksha Mitra, the

representation filed by Arun Kumar Arun was disposed of by the

same District Magistrate, Samastipur by an order dated

23.7.2009 sending the matter to the Tribunal for its disposal in

terms of the government aforementioned circular dated

14.5.2009.

In view of the aforementioned precedent of Arun

Kumar Arun, the District Magistrate, Samastipur was required to

act in the similar manner after the receipt of the similar direction

by this Court pursuant to the order of Division Bench dated

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

65/89

8.10.2009 in LPA No. 374 of 2009 filed by the appellant. Let it

be also noted that when the Division Bench of this Court had

passed an order dated 8.10.2009, it was clearly observed that the

right of the appellant of this case will be decided in accordance

with law, if such an occasion would arise. The law was

delegation of power made by the State Government in the

circular dated 14.5.2009 vesting power of deciding any dispute

relating to Panchayat Shiksha Mitra only in the Tribunal and,

therefore, this Court will have no difficulty in also approving

that part of the impugned order under this appeal passed by the

learned single Judge dated 16.9.2010 in the writ application filed

by the writ petitioner who is respondent no.10 herein, wherein it

was held as follows:-

“Learned counsel for respondent No 9 submits that the

matter having come to this Court has been remanded to the

Collector and, as such, Collector having decided, it cannot be said

that the decision is without jurisdiction. I am afraid I cannot

accept the submission because whenever the matter is sent back to

the Collector, it is always sent with the direction to be decided in

accordance with law. If, as has been shown in this case, Collector

had no jurisdiction in the matter for his authority having been

abolished, this Court neither could confer jurisdiction on the

Collector to decide the matter especially when an alternative

forum has already been provided statutorily nor this Court in fact

intended to create a jurisdiction in the Collector. It is well

established that even consent cannot confer jurisdiction and, as

such, the Collector lacked the jurisdiction to entertain the matter

at all. It is then submitted that respondent No 9 would suffer if the

order of the Collector was set aside. In my view, even if the order

of the Collector is to be sustained, it cannot be sustained in so far

as selection of respondent No 9 is concerned for the simple reason,

the selection of respondent No 9 or for that matter, the dispute

between the petitioner and respondent No 9, was with regard to

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

66/89

the post of Shiksha Mitra which stood abolished in the year, 2006

itself. No direction can be issued by any authority to absorb

respondent No 9 on the dead and abolished post of Shiksha Mitra.

No relief could be granted to respondent No 9 even

otherwise in view of the decision of this Court in the case of Alok

Kumar & Others (supra) and in view of the facts noted, the

impugned order of the Collector, as contained in Annexure-1,

cannot be sustained and it is set aside accordingly. The writ

application is, accordingly, allowed. ”

In the light of the aforementioned discussions, I have

no hesitation in holding that the order of District Magistrate,

Samastipur dated 26.06.2010 is wholly without jurisdiction both

in view of his own earlier order dated 12.7.2007 refusing to

issue a direction for appointment of the appellant on the post of

Panchayat Shiksha Mitra on account of its abolition on the post

as also in view of the aforementioned government circular dated

15.1.2009, which can be definitely read as an exercise of

statutory power by the State Government in terms of Rule 19 of

the 2006 Rules vesting power in the State Government to issue

instruction for removal of any difficulty in the enforcement of

2006 Rules.

The submission Mr. Giri that the provision of Section

6 of the General Clauses Act, which is pari materia Section 8 of

the Bihar and Orissa General Clauses Act, will be applicable and

would save the impugned order dated 26.6.2010 passed by the

District Magistrate, Samastipur, has also to be only noted for its

being rejected. In this regard, first of all, it would be necessary

for me to reproduce the provision of Section 8 of the Bihar and

Orissa General Clauses Act, which reads as follows:-

“8. Effect of repeal.- Where any Bihar and Orissa Act [or Bihar

Act] repeals any enactment hitherto made, or hereafter to be

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

67/89

made, then, unless a different intention appears, the repeal shall

not –

(a) revive anything not in force or existing at the time at which

the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed,

or anything duly done or suffered thereunder; or

(c) affect any right, privilege, obligation, or liability acquired,

accrued or incurred under any enactment so repealed, or

(d) affect any penalty, forfeiture or punishment incurred in

respect of any offence committed against any enactment so

repealed; or

(e) affect any investigatin, legal proceeding or remedy in

respect of any such right, privilege, obligation, liability,

penalty, forfeiture, or punishment as aforesaid, and

and any such investigation, legal proceding or remedy may

be instituted, continued or enforced, and any penalty,

forfeiture or punishment may be imposed as it the repealing

“Act” had not been passed.”

From bare reading of Section 6 of the General Clauses

Act or Section 8 of the Bihar and Orissa General Clauses Act, it

would become clear that the same would be applicable only in

case of “repeal of enactment”. Enactment in fact has also been

defined under Section 4(18) and reads as follows:-

“4(18) “Enactment” shall include a Regulation (as

hereinafter defined) and any Regulation of the

Bengal Code, and shall also include any provision

contained in any Act or in any such Regulation as

aforesaid;”

As the definition of “Enactment” also includes

regulation, it would also be necessary for me to reproduce

definition of Regulation under Section 4(45), which reads as

follows:-

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

68/89

“4(45) “Regulation” shall mean a Regulation made by the

Governor under sub-paragraph (2) of paragraph (5)

of the Fifth Schedule to the Constitution and shall

include a Regulation made by the Central

Government under the Government of India Act,

1870 or the Government of India Act, 1915, or the

Government of India Act, 1935 or by the Governor

under the Government of India Act, 1935, or by the

President under Article 243 of the Constitution.”

A conjoint reading of the definition of “Enactment”

and “Regulation” will leave nothing for speculation that any

executive instruction is not an enactment. It is well settled that

an executive instruction is not a rule. It does not create any legal

right on the person covered by it. No legal action can be founded

on it. Reference in this connection may be usefully made to the

judgment of the Apex Court in the case of M/s Raman and Raman

Ltd. Vs. The State of Madras & Ors. reported in AIR 1959 SC 694, in

the case of The State of Assam & Anr. Vs. Ajit Kumar Sarma & Ors.

reported in AIR 1965 SC 1196 and in the case of State of Assam &

Anr. Vs. Basanta Kumar Das, Etc. Etc reported in 1973(1) SCC 461.

In the background of this, if the provision relating to

engagement of Panchayat Shiksha Mitra brought into force by a

Resolution of the State Government dated 21.6.2002 is

examined, it becomes absolutely clear that same was by way of

pure executive instruction and was not in exercise of any

statutory provision. To that extent, it would be relevant to

extract the entire resolution dated 21.6.2002, which is in fact a

Margdarshak (Guideline) and reads as follows:-

^^lsdsUMzh] izkFkfed ,oa o;Ld f'k{kk foHkkx

ladYi

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

69/89

iapk;r f'k{kk fe= ¼vuqca/k ,oa fu;kstu½ ekxZnf'kZdk

21 twu] 2002

la0 336@fnukad 21 twu 2002& jkT; ds iapk;rksa }kjk iapk;r

f'k{kk fe= ds vuqca/k ij fu;kstu gssrq fuEufyf[kr ekxZn'kZd

fl|kar fu:fir fd;k tkrk gS&

1- iapk;r f'k{kk fe=ksa dks muds fy, ljdkj }kjk fu/kkZfjr

bZdkbZ;ksa ds fo:n~/k iapk;r }kjk vuqca/k ij fu;ksftr fd;k tk

ldsxkA

2- vuqca/k ij fu;kstu esa vkj{k.k laca/kh vf/kfu;eksa] fu;eksa ,oa

vuqns'kksa dk ikyu fd;k tk,xkA

3- iapk;r f'k{kk fe=ksa ds fu/kkZfjr bZdkbZ;ksa dk vkj{k.k ds

fu;eksa ds vuqlkj fofHku oxksaZ ds fy, vuqekU;rk rFkk

iapk;rokj buds caVokjs dh x.kuk dh tk;sxh] ftl ij

ftykf/kdkjh dk vuqeksnu ysdj ftyk f'k{kk v/kh{kd lHkh

iapk;rksa dks iapk;rokj ,oa vkjf{kr dksfVokj bdkbZ;ksa fjfDr;ksa

dk lalwpu djsaxsA lalwpu ds mijkaUr gh ia;kpr }kjk iapk;r

f'k{kk fe= dks vuqca/k ij fu;kstu dh izfdz;k izkjaHk dh tk;sxhA

4- iapk;r f'k{kk fe= ds vuqca/k ij fu;kstu gsrq fuEu vgZrk,a

fu/kkZfjr dh tkrh gSA

¼d½ iapk;r dk fuoklh gksA

¼[k½ U;wure eSfVzd ;k blds led{k mRrhZ.k gks rFkk mDr

ijh{kk esa U;wure 45 izfr'kr vad izkIr fd;k gksA mnwZ fo"k; ds

inksa ds fy, enjlk ijh{kk cksMZ@fcgkj ,oa jkT; ljdkj }kjk

ekU;rk izkIr laLFkkvksa ls QkaSdfu;ka ijh{kksRrhZ.k ekU; gksxkA

¼x½ ftl iapk;r o"kZ esa iapk;r f'k{kk fe= dk izFke ckj

fu;kstu fd;k tkuk gS ml o"kZ dh igyh tuojh dks mEehnokj

dh vf/kdre vk;q 30 o"kZ ds vukf/kd gksA fiNM+k oxZ ,oa

vR;Ur fiNM+k oxZ ds mEehnokjksa ds fy, nks o"kZ] efgyk

mEehnokjksa ds fy, rhu o"kZ rFkk vuqlwfpr tkfr@vuqlwfpr

tutkfr ds mEehnokjksa ds fy, ikap o"kZ vf/kdre vk;q lhek esa

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

70/89

NwV nh tk;sxhA

5- vkosnu izkIr dkus dh izfdz;k

¼d½ ftyk inkf/kdkjh }kjk vuqeksfnr iapk;rokj ,oa fofHkUu

vkjf{kr oxksZa ds fy, iapk;r f'k{kk fe= ds Lohd`r bZdkbZ;ksa ds

fo:n~/k fjfDr dh lwpuk izkIr gksus ij muds fo:n~/k vuqca/k ij

fu;kstu gsrq iapk;r dh vke lHkk cqyk;h tk;sxhA vke lHkk esa

vkosnu izkIr djus dh frfFk ,oa mlds izpkj izlkj gsrq fu.kZ;

fy;s tk;ssaxsA LFkkuh; cktkj esa izpkj djus rFkk iapk;r

fo|ky; vapy ,oa iz[kaM dk;kZy; ds lwpuk iV ij lwpuk

vo'; izdkf'kr dh tk;sxhA

¼[k½ lwpuk izdkf'kr gksus dh frfFk ls de ls de 15 fnuksa ds

ckn dh fu/kkZfjr frfFk rd bPNqd mEehnokjksa ls vuqlwph ^^d**

esa layXu izi= esa vkosnu ekaxs tk;saxsA iapk;r ds lfpo }kjk

vkosnu izkIr fd;s tk;sxs vkSj mEehnok dks izkfIr jlhn nh

tk;sxhA izkIr vkosnuksa dh iath rS;kj dh tk;sxh ftls eqf[k;k

}kjk lR;kfir fd;k tk;sxkA izkfIr jlhn esa iath dk dzekad

fd;k tk;sxkA

6- vkosnu i=ksa dh leh{kk

izkIr vkosnu i= xzke iapk;r dh lq[k lqfo/kk lfefr ds

le{k miLFkkfir fd;s tk;saxs ftlesa iapk;r {ks= dh lHkh

fo|ky; f'k{kk lfefr;ksa@xzke f'k{kk lfefr;ksa ds v/;{k rFkk

iapk;r esa miyD/k e/; fo|ky; ds ojh;re iz/kkuk/;kid

fo'ks"k fu/kkZfjr frfFk ds vanj izkIr vkosnu i=ksa ij gh fopkj

fd;k tk;sxkA ;fn vkosnu esa fdlh mEehnokj }kjk dksbZ xyr

lwpuk vafdr dh x;h gks rks og mEehnokj p;u ds fy;s

v;ksX; le>kk tk;sxkA

7- p;u dk vk/kkj

eSfVzd vFko mlds lerqY; ijh{kk esa izkIrkadksa ds

vk/kkj ij ;ksX; vH;FkhZ dk p;u fd;k tk;sxkA leku fLFkfr esa

f'k{kd izf'k{k.k izkIr] mPPre ;ksX;rk/kkjh ,oa efgyk mEehnokjksa

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

71/89

dks blh dze esa izkFkfedrk nh tk;sxhA

lfefr mEehnokjksa dks muds izek.k i=ksa dh tkap gsrq

cqyk ldsxhA

8- p;fur mEehnokjksa dks ftykf/kdkjh }kjk vuqeksfnr fu/kkZfjr

bdkbZ;ksa ds v/khu vkj{k.k fu;eksa ds ikyu djrs gq;s fuEu 'krksZa

ds vUrxZr vuqca/k ij 11 ekg ds fy;s ^^xzke iapk;r** }kjk

fu;ksftr fd;k tk ldsxk&

¼d½ fu;kstu vuqca/k ij gksxkA

¼[k½ vuqca/k vof/k] xzh"e vodk'k dks NksM+dj 11 ekg gkxhA

¼x½ mDr vof/k ds fy;s 1500@& ¼iUnzg lkS½ :i;k izfrekg

ekuns; ns; gksxkA

¼?k½ ekuns; dk Hkqxrku iz/kkuk/;kid@iz/kku f'k{kd }kjk

izfrgLrk{kfjr vuqifLFkfr fooj.kh ds vk/kkj ij iapk;r }kjk

fd;k tk;sxkA

¼M-½ fo|ky; f'k{kk lfefr@xkzke f'k{kk lfefr@fujh{kh

inkf/kdkjh dh vuq'kalk ds vkyksd esa iapk;r f'k{kk fe= dks ,d

i{k dh iwoZ fyf[kr lwpuk nsdj iapk;r }kjk fdlh Hkh le;

mudk vuqca/k lekIr fd;k tk ldsxkA fdUrq vuqca/k lekfIr

dk vkns'k fuxZr djus ds iwoZ xzke iapk;r dk vuqeksnu

vko';d gksxkA

¼p½ fo|ky; f'k{kk lfefr@xzke f'k{kk lfefr dh vuq'kalk ij

lsok larks"ktud ik;s tkus dh fLFkfr esa iapk;r }kjk iapk;r

f'k{kk fe= dks mlds }kjk vuqlwfp ^^x** esa layXu izi= esa

vkosnu nsus vkSj vkj{k.k fu;eksa ds vuqlkj fjfDr miyC/k gksus

ij vfrfjDr X;kjg ekg ds fy,A iqu% vuqca/k ij fu;ksftr

fd;k tk ldsxkA bl lanHkZ esa ;fn fujh{kh inkf/kdkjh dh dksbZ

izfrdwy vfHk;qDr izfrosfnr gks rks xzke iapk;r }kjk iquZfuZ;kstu

ds fu.kZ; ds iwoZ ml ij lE;d fopkj fd;k tk,xkA ,sls

fu;kstu dh vof/k esa xzh"edkyhu vodk'k lfEefyr ugha gksxhA

mi;qZDr 'krksZa ds v/khu fdlh ,d f'k{kk fe= dks xzh"edkyhu

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

72/89

vodk'ksa dks NksM+dj 11 ekg dh vof/k ds fy, vf/kdre 3 ckj

;kfu dqy vof/k 11 x 3 = 33 ekg ds fy, gh fu;ksftr

fd;k tk ldsxkA

¼N½ jfookjh; ,oa jktif=r vodk'k ds fy, ekuns; dh dVkSrh

ugha dh tk;sxhA vuqifLFkfr ds fy, ekfld ekuns; ds 1@30

ds cjkcj jkf'k izfrfnu ds fglkc ls ekuns; esa dVkSrh dh

tk;sxhA

¼t½ iapk;r f'k{kk fe= vkSj iapk;r dh chp vuqlwph ^^[k** esa

layXu izi= esa ,djkjukek fd;k tk;sxkA

9- iapk;r f'k{kk fe=ksa ds fu/kkZfjr bZdkbZ;ksa ds v/khu dk;Zjr

O;fD;kksa dh la[;k ds vk/kkj ij izR;sd o"kZ] X;kjd ekg ds

vof/k ds fy;s ekuns; dh lerqY; vuqekfur jkf'k jkT; ljdkj

iapk;rksa dks rc rd vuqnku Lo:i miyC/k djk;sxh tc rd

fd iapk;r vius lalk/kuksa ls ekuns; Hkqxrku djus dh fLFkfr esa

u gksA vuqnku dh jkf'k dks vyx [kkrk [kksy dj cSad@iksLV

vkWfQl esa j[kk tk;sxkA [kkrk dk lapkyu iapk;r jkt

vf/kfu;e ds izko/kkuksa ds vuqlkj fd;k tk;sxk vkSj mldk

fof/kor ys[kk la/kkj.k fd;k tk;sxkA iapk;r f'k{kk fe=ksa dks

ekuns; dk Hkqxrku psd }kjk gksxkA

10- iapk;r }kjk izpkj izlkj djus laca/kh dkxtkr izkir

vkosnu i= lq[k lqfo/kk lfefr }kjk rS;kj dh x;h es/kk lwph]

iapk;r dk fu.kZ; ,oa iapk;r f'k{kk fe= }kjk fd;s x;s

,djkjuke vkfn lHkh laca/kh vfHkys[k iapk;r ds lfpo }kjk

lqjf{kr j[ks tk;sxsA

11- iapk;r f'k{kk fe=ksa dks ,d ekg dk izf'k{k.k fnyk;k

tk;sxk mlds ckn izR;sd o"kZ ,d lIrkg dk Hkh izf'k{k.k fn;k

tk;sxkA izf'k{k.k dh vof/k esa ekuns; ns; gksxkA

12- bl ladYi esa of.kZr mica/kkas dks izR;sd iapk;r }kjk

vuqlwph ^^?k** esa layXu izi= esa ladYi ikfjr dj xzg.k dj

ldsxk vkSj xzg.k djus dh fLFkfr esa dafMdk 8 ds vuqlkj jkT;

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

73/89

ljdkj iapk;r f'k{kk fe=ksa ds ekuns; gsrq ekuns; vuqnku

iapk;rksa dks ns ldsxhA

13- bl ladYi esa of.kZr izko/kkuksa dk mYya?ku gksus dh fLFkfr

esa jkT; ljdkj iapk;r f'k{kk fe=ksa dks vuqnku ds fy, ck/;

ugha gksxhA

fcgkj jkT;iky ds vkns'k ls]

g0@&

¼Qwy flag½

ljdkj ds lfpo]

izkFkfed ,oa o;Ld f'k{kk foHkkx**

This Court has purposely quoted the aforesaid

guideline dated 21.6.2002 because from its bare perusal, it

becomes clear that same was by way of executive instruction.

Thus there will be no question of application of Section 6 of the

General Clauses Act which is pari materia Section 8 of the

Bihar and Orissa General Clauses Act. As a matter of fact, it

would be also necessary for me to mention here that though the

aforementioned guideline dated 21.6.2002 had undergone

certain changes by way of modification in the guideline by

government resolution no. 1458 dated 11.8.2004 and also in

view of the letter of the State Government contained in memo

no. 604 dated 12.4.2005 as well as letter no. 672 dated

21.4.2005, the same at any point of time did not acquire any

statutory status and remained out and out an executive

instruction.

Thus, when this executive instruction, relating to

Panchayat Shiksha Mitra, was repealed by the 2006 Rules

framed by the State Government in exercise of its power under

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

74/89

Article 243 (Chh) of the Constitution of India read with Section

47 and 48 and 146 of the Bihar Panchayat Raj Act, 2006,

nothing would be left for speculation that by the executive

instruction relating to Panchayat Shiksha Mitra were repealed as

a whole by the statutory rules. To that extent, it would be

necessary for me to also reproduce the relevant portion of the

Rules, which reads as follows:-

^^ekuo lalk/ku fodkl foHkkx

vf/klwpuk

1 tqykbZ 2006

la0 7@fu03&02@06&974& Hkkjr ds lafo/kku dh /kkjk 243N ¼11 oha vuqlwph en

la[;k 17½ rFkk fcgkj iapk;r jkt vf/kfu;e 2006 ds vuqPNsn 47 ,oa 48 lg ifBr

vuqPNsn 146 ds v/khu iznRr 'kfDr;ksa dk iz;ksn djrs gq, jkT; ljdkj jkT; ds

xzkeh.k {ks= ds izkjafHkd fo|ky;kas esa f'k{kdksa ds fu;kstu gsrq fuEukafdr fu;ekoyh

cukrh gSA&

fu;ekoyh

izLrkouk& lafo/kku dh /kkjk 21 ds vUrxZr 6&14 vk;q oxZ ds cPpksa dh f'k{kk mudk

EkkSfyd vf/kdj gks x;k gSA blds fy, jkT; ds izkjafHkd f'k{kk O;oLFkk esa O;kiid

izlkj ,aoa lq/kkj ds dk;Zdzeksa dks viuk;k tkuk vko';d gks x;k gSA gtkjksa u;s

izkjafHkd fo|ky;ksa dks [kksyus rFkk cM+h la[;k esa f'k{kdksa dks fu;kstu dh vko';drk

gSa lkFk gh 73osa ,oa 74osa lafo/kku la'kks/ku ds vkyksd esa izkjafHkd f'k{kk esa iapk;rh jkt

laLFkkvksa dh Hkwfedk dks egRoiw.kZ ekurs gq, izkjafHkd f'k{kk ds nkf;Roksa ds fuoZgu dk

Hkkj Hkh bu laLFkkvksa dks lkSiuk vko'd gks x;k gSA vr,o bl mns~n'; dh iwfrZ ds

fy, fo'ks"k ;kstuk ds v/khu izkjafHkd fo|ky;ksa ds f'k{kd in ij fu;kstu gsrq ;g

fu;ekoyh cuk;h tk jgh gSA

1- laf{kIr uke] izlkj ,oa izkjaHk&

¼A½ ;g fu;ekoyh ^^fcgkj iapk;r izkjafHkd f'k{kd ¼fu;kstu ,oa lsok 'krZ½

fu;ekoyh 2006* dgha tk;sxhA

¼AA½ bldk foLrkj lEiw.kZ fcgkj jkT; esa gksxkA

¼AAA½ ;g vf/klwpuk dh frfFk ls izHkkoh gksxhA

3- iapk;r izkjafHkd f'k{kdksa dh Js.kh& iapk;r izkjafHkd f'k{kd fuEukafdr nks Js.kh ds

gksaxs&

¼d½ iz[k.M f'k{kd

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

75/89

¼iz[k.M Lrj ij fu;ksftr f'k{kd ftleas 'kkjhfjd f'k{kk f'k{kd Hkh lfEefyr

gS½

¼[k½ iapk;r f'k{kd

¼xzke iapk;r Lrj ij fu;ksftr f'k{kd½

4- iapk;r izkjfEHkd f'k{kdksa dk fu;kstu%&

¼1½ iz[k.M f'k{kdksa dk fu;kstu e?; fo|ky; esa iapk;r lfefr ds }kjk rFkk

iapk;r f'k{kd dk fu;kstu izkFkfed fo|ky;ksa esa xzke iapk;r ds }kjk fd;k tk;sxkA

¼2½ f'k{kdksa dh vko';drk dks /;ku esa j[krs gq, mi;qZDr nksuksa Lrjksa ij dksfVokj

izf'kf{kr ,oa vizf'kf{kr vH;fFkZ;ksa dk iSuy vyx&vyx rS;kj fd;k tk;sxkA loZizFke

izf'kf{kr f'k{kdksa dk fu;kstu fd;k tk;sxkA rRi'pkr fjfDr miyC/k gksus ij

vizf'kf{kr f'k{kdksa dk fu;kstu Hkh fd;k tk ldsxk vkSj mUgsa nks o"khZ; izf'k{k.k nsus

dh O;oLFkk dh tk;xhA

¼3½ vkjf{kr dksfV esa mPprj ek/;fed@bUVjfeMh,V ijh{kk ikl mEehnokj

miyC/k ugha gksus dh fLFkfr esa ek/;fed ijh{kk ikl mEehnokjkaas dks Hkh fu;ksftr fd;k

tk ldsxk ijUrq mUgsa fu/kkZfjr ;ksX;rk vf/kdre 6 o"kksZa ds vUnj izkIr djuk vfuok;Z

gksxkA

5- vkj{k.k

¼d½ iapk;r izkjfEHkd f'k{kd dk fu;kstu vkj{k.k jksLVj ds vuqlkj fd;k

tk;sxkA

¼[k½ izR;sd dksfV esa U;wure 50% efgyk vH;FkhZ dk fu;kstu fd;k tk;sxkA

fo"ke la[;k jgus ij vafre in efgyk ds fy, fpUfgr fd;k tk;sxkA

¼x½ 50% iq:"k ,oa 50% efgyk ds fy, inksa ds fu/kkZfj.k ds ckn vkj{k.k fcUnw 1

ls izkjaHk gksxkA blds fy, vyx vyx jksLVj iath la?kkfjr dh tk;sxhA

¼?k½ iapk;r izkjfHkd f'k{kd dh izR;sd dksfV esa rhu izfr'kr fodykax ¼n`f"V ckf/kr

1% Jo.k ckf/kr 1% rFkk vLFktU; fodykax 1%½ mEehnokjksa dk fu;kstu

fd;k tk;sxkA

fVIi.kh& es/kk ds vk/kkju ij p;u gksus dh fLFkfr esa fdlh O;fDr

dk fodykax gksus ds dkj.k fu;kstu ls oafpr ugha fd;k tk;sxkA

6- mnwZ f'k{kdkas dk fu;kstu&

fo|ky; ds Nk= mnwZ bdkbZ;ksa ij mnwZ ;ksX;rk j[kus okys rFkk ekSyoh ;ksX;rk/kkjh

vH;fFkZ;ksa dk fu;kstu fd;k tk;sxkA

7- 'kkjhfjd f'k{kk f'k{kd dk fu;kstu

izR;sd e/; fo|ky; esa ,d 'kkjhfjd f'k{kk f'k{kd dk fu;kstu fd;k tk;sxkA

8- fu;qfDr gsrq %&

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

76/89

¼d½ vgZrk %

iz[k.M f”k{kd ds fy;s %&

1- Hkkjr dk ukxfjd gks rFkk fcgkj jkT; ds fuoklh gksaA

2- ljdkj }kjk ekU;rk izkIr f”k{k.k laLFkku ls mPprj ek/;fed vFkok

bUVjehfM,V vFkok led{k ijh{kk mÙkh.kZ gksaA

3- jk’Vªh; v/;kid f”k{kk ifj’kn(N.C.T.E.)}kjk ekU;rk izkIr

izf”k{k.k laLFkku ls nks o’khZ; f”k{kd izf”k{k.k fMIyksek ;k lfVZfQdsV

vFkok izkjafHkd f”k{kk esa Lukrd ¼ch0,y0,M0½ vFkok ¼ch0,M0½ ds lkFk

Lukrd vFkok led{k ;ksX;rkA

“kkjhfjd f”k{kk f”k{kd ds fy, U;wure nks o’kksZa dk lfVZfQdsV

¼lh0ih0,M0½ vFkok led{k ;ksX;rk izkIr gksA

ijUrq bl fu;ekoyh ds v/khu izFke fu;kstu esa osSls

mEehnokjksa dk Hkh fu;kstu fd;k tk ldsxk] tks ljdkj] }kjk ekU;rk

izkIr fo|ky; ls eSfVªd vFkok led{k ijh{kk mÙkh.kZ gks rFkk jk’Vªh;

v/;kid f”k{kk ifj’kn (N.C.T.E.)vf/kfu;e ykxw gksus ds iwoZ

ekU;rk izkIr izf”k{k.k fo|ky;@egkfo|ky; ls nks o’kksZa dk f”k{kd

izf”k{k.k ijh{kk@ch0,M0@2 o’kksZa dk “kkjhfjd izf”k{k.k dk lfVZfQdsV

¼lh0ih0,M0½ ikl gksA

iapk;r f”k{kd ds fy;s %&

1- Hkkjr dk ukxfjd gks rFkk fcgkj jkT; ds fuoklh gksA

2- ljdkj }kjk ekU;rk izkIr f”k{k.k laLFkku ls mPprj

ek/;fed@bUVjehfM,V vFkok led{k ijh{kk mÙkh.kZ gksA

3- jk’Vªh; v/;kid f”k{kk ifj’kn~ (N.C.T.E.)}kjk ekU;rk

izkIr izf”k{k.k laLFkku ls nks o’khZ; f”k{kd izf”k{k.k fMIyksek ;k

lfVZfQdsV vFkok izkjafHkd f”k{kk esa Lukrd ¼ch0,y0Mh0½A

ijUrq bl fu;ekoyh ds v/khu izFke fu;kstu esa oSls

mEehnokjksa dk Hkh fu;kstu fd;k tk ldsxs tks ljdkj }kjk

ekU;rk izkIr fo|ky; ls eSfVªd vFkok led{k ijh{kk mÙkh.kZ gks

rFkk jk’Vªh; v/;kid f”k{kk ifj’kn~ (N.C.T.E.) vf/kfu;e

ykxw gksus ds iwoZ ekU;rk izkIr izf”k{k.k fo|ky;@egkfo|ky; ls

nks o’kksZa dk f”k{kd izf”k{k.k ijh{kk ikl gksA

¼[k vk;q%&

ftl o"kZ fu;kstu fd;k tk jgk gks] ml o"kZ dh igyh

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

77/89

tuojh dks mEehnokj dh U;wure vk;q 18 o"kZ ,oa vf/kdre vk;q

37 o"kZ gksxhA vuqlwfpr tkfr@vuqlwfpr tutkfr ,oa fodykax

dks 5 o"kZ] fiNM+k oxZ vR;ar fiNM+k oxZ ds fy, 2 o"kZ rFkk

izR;sd dksfVh dh efgyk mEehnokj ds fy, vf/kdre mez lhek esa

3 o"kZ dh NwV nh tk;sxhA

ijUrq iz[k.M f'k{kd rFkk iapk;r f'k{kd dh izf'kf{kr

Js.kh ds fu;kstu ds izFke fu;kstu esa vf/kdre mez lhek {kkUr

jgsxhA

9- fu;kstu dh izfdz;k %&

(i) jkT; ljdkj iz[k.M f”k{kdksa ds fu;kstu gsrq le;≤ ij iapk;r

lfefr dks rFkk iapk;r f”k{kdksa ds fu;kstu gsrq xzke iapk;rksa dks inksa

dh la[;k miyC/k djk;sxhA

(ii)iapk;r lfefr@xzke iapk;r }kjk dksfVokj iz[k.M f”k{kd rFkk iapk;r

f”k{kd ds fjDr inksa dh lwpuk dk izdk”ku iwjs iz[kaM@iapk;r esa de

ls de 15 fnuksa rd ds fy, fd;k tk;sxkA

(iii) fofgr izi= ¼vuqlwph&1½ esa vkosnu&i= iz[k.M f”k{kd ds fy, iz[k.M

f”k{kk izlkj inkf/kdkjh ds ;gk¡ rFkk iapk;r f”k{kd ds fy, xzke

iapk;r ds lfpo ds ;gk¡ izkIr fd;k tk;sxkA izkfIr ds ckn rqjUr ,d

izkfIr jlhn nh tk;sxkh@Hksth tk;xhA

(iv) iz[k.M f”k{kd ds fu;kstu gsrq iSuy %&

¼d½ iz[k.M f”k{kd ds fu;kstu gsrq iSuy iz[k.M Lrj ij iapk;r

lfefr ds izeq[k dh v/;{krk esa xfBr iapk;r lfefr ds }kjk

es/kk vadksa ds vk/kkj ij rS;kj fd;k tk;sxkA es/kk vadksa dh x.kuk

fuEu izdkj dh tk;sxh %&

1- eSfVªd@mPprj ek/;fed@bUVjehfM,V & izkIrkad dk

izfr”kr

2- nks o’khZ; izf”k{k.k@ch0,y0,M0@ch0,M0@lh0ih0,M0 &

izkIrkad dk izfr”kr

ijUrq ;fn dksbZ vH;FkhZ nks o’khZ; izf”k{k.k rFkk

ch0,y0,M0@ch0,M0@lh0ih0,M0 dh fMxzh izkIr fd;k gks rks muds

}kjk nkok fd;s x;s fdlh ,d izf”k{k.k ds izkIrkad ds izfr”kr dks es/kk

vad esa tksM+k tk;sxkA

¼[k½ mijksDr 1 vkSj 2 dks tksM+dj rFkk tksM+ dks nks ls Hkkx nsus ij

tks izfr”kr gksxk] ogh vH;FkhZ dk es/kk vad gksxk A

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

78/89

¼x½ ijUrq “kkjhfjd f”k{kk f”k{kd ds fu;kstu gsrq iSuy vyx ls rS;kj

fd;k tk;sxkA

(v) iapk;r f”k{kd ds fu;kstu gsrq iSuy %&

¼d½ iapk;r f”k{kd ds fu;kstu gsrq iSuy xzke iapk;r ds eqf[k;k dh

v/;{krk esa xfBr lefr ds }kjk es/kk vadksa ds vk/kkj ij rS;kj fd;k

tk;sxkA es/kk vadksa dh x.kuk fuEu izdkj dh tk;sxh %&

1- eSfVªd@mPprj ek/;fed@bUVjehfM,V & izkIrkad dk izfr”kr

2- nks o’khZ; izfk{k.k@ch0,y0,M0 & izkIrkad dk izfr”kr

ijUrq ;fn dksbZ vH;FkhZ nks o’khZ; izf”k{k.k rFkk ch0,y0,M0@nksuksa dh

fMxzh izkIr fd;k gks rks muds }kjk nkok fd;s x;s fdlh ,d izf”k{k.k

ds izkIrkad ds izfr”kr dks es/kk vad esa tksM+k tk;sxkA

¼[k½ mijksDr 1 vkSj 2 dks tksM+dj rFkk tksM+ dks nks ls Hkkx nsus ij

tks izfr”kr gksxk] ogh vH;FkhZ dk es/kk vad gksxk

(vi) nksuksa Lrjksa ds f”k{kdksa ds fu;kstu gsrq iSuy fuekZ.k ds dze esa leku

vad izkIr gksus ij] ftudh tEe frfFk igys gksxh] mUgsa iSuy esa mij

j[kk tk;sxkA leku vad ,oa leku tUe frfFk gksus ij MªkW vkWQ ykWV~

ds }kjk iSuy esa mij LFkku fu/kkZfjr gksxkA

(vii) iSuy fuekZ.k gsrq lfefr dk xBu rFkk vuqeksnu %&

izkIr vkosnu i= ds vk/kkj ij iSuy dk fuekZ.k ffuEufyf[kr lfefr ds

}kjk fd;k tk,xk %&

¼d½ iz[k.M f”k{kd ,oa “kkjhfjd f”k{kk f”k{kd gsrq %&

(i) iapk;r lfefr dk izeq[k & v/;{k

(ii) dk;Zikyd inkf/kdkjh] iapk;r lfefr & lnL;

(iii) iapk;r lfefr ds f”k{kk lfefr }kjk

p;fur ,d lnL; ¼izeq[k; iq#’k gksus ij

p;fur lnL; efgyk gksxh½ & lnL;

(iv) iz[kaM f”k{kk izlkj inkf/kdkjh & lnL; lfpo

¼[k½ iapk;r f”k{kd gsrq %&

(i) xzke iapk;r dk eqf[k;k & v/;{k

(ii)xzke iapk;r ds f”k{kk lfefr }kjk p;fur

,d lnL; ¼eqf[k;k iq#’k gksus ij

p;fur lnL; efgyk gksxk½ & lnL;

(iii) iapk;r lfefr dk og lnL; ftuds {ks= dk

vf/kdka”k Hkkx ml iapk;r esa iM+rk gks & lnL;

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

79/89

(iv) iapk;r vFkok iapk;r ds fudVLFk

ek/;fed fo|ky; dk ftyk f”k{kk

inkf/kdkjh }kjk euksuhr ,d f”k{kd & lnL;

(v) xzke iapk;r lfpo & lnL; lfpo

ijUrq mijksDr nksuksa lfefr;ksa esa p;fur lnL; dk dk;Zdky

,d o’kZ dk gksxkA

fVIi.kh %& iapk;r lfefr dh f”k{kk lfefr rFkk xzke iapk;r dh f”k{kk

lfefr xfBr ugha gksus dh fLFkfr esa iz[k.M f”k{kk izlkj

inkf/kdkjh ds }kjk iapk;r lfefr@xzke iapk;r ds ,d lnL;

lfefr ds lnL; euksfur dj ldsxsaA

(viii) iSuy rS;kj gks tkus ij mls lkoZtfud fd;k tk;sxkA fdlh izdkj dh

vkifÙk nsus gsrq ,d lIrkg dk le; fn;k tk;sxkA izkIr vkifÙk dk

fujkdj.k dj iSuy dks vfUre :i fn;k tk;sxkA

(ix) iz[k.M f”k{kdksa rFkk iapk;r f”k{kdksa ds fu;kstu gsrq rS;kj iSuy dk

vuqeksnu dze”k% iapk;r lfefr ,oa xzke iapk;r ds }kjk fd;k tk;sxkA

(x) p;fur vH;fFkZ;ksa dks bfPNr fo|ky;ksa esa fu;kstu es/kk ds vk/kkj ij

rS;kj iSuy ls vuqlwph&II esa vafdr izkFkfedrk ds vojksgh dze esa

mijksDr lfefr }kjk dkmfUlfyax ds vk/kkj ij fd;k tk;sxkA

(xi) p;fur vH;FkhZ dks fu;kstu i= ¼vuqlwph&III½ Hkstk tk;sxkA lgefr

i= ds vk/kkj ij ;ksxnku Lohd`r fd;k tk;sxkA

18& f'kdk;r%&

bl fu;ekoyh ds v/khu iz[k.M f'k{kdksa ds fu;kstu] LFkkukUrj.k

vFkok lsok 'kRrksZa laca/kh ekeyksa esa fdlh Hkh izdkj dh f'kdk;r ij

fu.kZ; ysus dh 'kfDr ml fodkl vk;qDr dks gksxh rFkk iapk;r f'k{kd

ds ekeys esa iz[k.M fodkl inkf/kdkjh dh gksxhA lacaf/kr inkf/kdkjh

vf/kdre 30 fnuksa ds vUnj f'kdk;rksa ij fu.kZ; ns nsaxsA

19& izdh.kZ%&

jkT; ljdkj bl fu;ekoyh ds fdlh izko/kku dks vf/klwpuk@vuqns'k

ds }kjk Li"V dj ldsxh rFkk bls ykxw djus esa mRiUu dfBukbZ;ksa dks

nwj dj ldsxhA

20& fujlu ,oa O;ko`fRr%&

¼A½ bl fu;ekoyh ds izHkkoh gksus dh frfFk ls xzkeh.k {ks= esa izkjafHkd

f'k{kdksa@'kkjhfjd f'k{kdksa@iapk;r f'k{kkfe= ds fu;kstu ls lacaf/kr iwoZ

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

80/89

dh lHkh fu;ekoyh ladYi vkns'k vuqns'k vkfn fujLr ekus tk;saxsA

¼AA½ fdUrq bl fujlu ds gksrs gq, Hkh iwoZ ds fu;ekoyh ladYi vkns'k

vuqns'k vkfn ds rgr fu;qDr f'k{kdksa ds osrukfn ,oa lsok 'kRrksZa ij

bldk izHkko ugha iM+sxkA

¼AAA½ fdUrq iwoZ ds ifji=] vkns'k] vuqns'k ds vkyksd esa fu;ksftr ,oa

dk;Zjr iapk;r f'k{kk fe= bl fu;ekoyh ds rgr iapk;r f'k{kd ds

:i esa fu;ksftr ekus tk;sxsA**

The purpose of extracting the relevant portion of the

Rule by me is two fold. First of all, from bare comparison of the

2006 Rules which is statutory in nature, it would be clear that

the necessity for appointment of Panchayat Teacher was in view

of the amendment in the Constitution of India under Article 21A

for providing free and compulsory education to the children in

the age group of six to fourteen years by the State. Thus, a

completely different scheme with different qualification,

different mode of selection and different service condition as

well for the post of Panchayat Teacher was sought to be

implemented with effect from 1.7.2006. As a matter of fact,

from Rule 20(i), it would become clear that not only the circular

relating to Panchayat Shiksha Mitra, who were definitely

contractual employees for a limited tenure of eleven months

subject to their renewal of contract for similar eleven months,

even the statutory rules relating to recruitment of the regular

teachers working in the cadre of primary school teachers and

governed by the statutory rules were repealed with the only

saving that those teachers appointed in the regular cadre of

primary school teachers would not be adversely affected in the

matter of their salary and service condition. Rule 20(iii) in fact

was a saving clause in 2006 Rules only to protect the working

Panchayat Shiksha Mitra as on 1.7.2006 who were deemed to

have been automatically absorbed on the post of Panchayat

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

81/89

Teacher.

A question, therefore, would arise as to whether in

term of the repeal of the executive instruction of Panchayat

Shiksha Mitra in terms of Rule 20(i) of 2006 Rules, could any

dispute be adjudicated for appoitment on the post of Panchayat

Shiksha Mitra? The answer to this must be in negative,

inasmuch as, if the entire provision for Panchayat Shiksha Mitra

was itself repealed, there could not have been any appointment

on the abolished post of Panchayat Shiksha Mitra. It is this

aspect of the matter which has been dealt elaborately in the

earlier Division Bench judgment in the case of Smt. Renu

Kumari Pandey (supra) and I do not find any error in the same.

Once I come to this conclusion, it is also not very

difficult for me to hold that the effect of repeal as with regard to

executive instruction relating to engagement on the post of

Panchayat Shiksha Mitra will not be governed by the provision

made in Section 6 of the General Clauses Act or Section 8 of the

Bihar and Orissa General Clauses Act. Thus, the provision

relating to engagement on the post of Panchayat Shiksha Mitra

being purely governed by executive instruction, as noted above,

being not „enactment‟, there would be no question of

applicability of Section 6 of the General Clauses Act or Section

8 of the Bihar and Orissa General Clauses Act. This aspect of

the matter has also been decided by this Court in the case of

Anant Ram Agrawal Vs. The State of Bihar reported in 1988 PLJR 715,

wherein it has been held as follows:-

“14. The Order 1973 was issued by the Governor of

Bihar in exercise of the powers conferred on him by

Section 3 of the Act read with orders of the

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

82/89

Government of India, Ministry of Agriculture (Deptt.

of Food) No. G.S.R. 316(E) dated 20

th

of June 1972,

G.S.R. 152(E) dated 25

th

of October 1972 and G.S.R.

168(E) dated 13

th

of March 1973 and with prior

concurrence of the Central Government. The Order

was not issued by the Governor in exercise of his

legislative powers but was an executive act and

hence it cannot have the status of an Act or

Regulation. Hence the provisions of Order 1973

cannot be said to continue even after it was

rescinded.

15. I am fortified in my view by unreported Division

Bench decision of this Court in Cr. Miscellaneous

No. 1170 of 1968 (Mohanlal Chhapolia vs. The State

of Bihar) in which similar view has been taken with

regard to the Bihar Rice Procurement (Levy) Order

which was rescinded by a subsequent notification.”

In view of the aforesaid conclusion, it would not be

even necessary for me to refer to the judgment of the Apex

Court in the case Gammon India Ltd. (supra) relied by Mr. Giri

which in fact even otherwise does not support his submission . If

however for a moment, (for the sake of argument only) it is

accepted that the provision relating to engagement of Panchayat

Shiksha Mitra was an enactment even then after repeal of the

circular relating to engagement of Panchayat Shiksha Mitra as it

was followed by a fresh legislation by way of 2006 Rules from

which an entirely different intention with regard to engagement

on the post of Panchayat Teacher appeared and there would be

no question of preserving of any right of Panchayat Shiksha

Mitra.

Relevant portion of 2006 Rules have been already

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

83/89

quoted above, and its bare comparison with the earlier executive

instruction relating to Panchayat Shiksha Mitra, also quoted

above, will leave nothing for speculation that with a view to

implement the constitutional mandate of free and compulsory

education, a large number of schools at Panchayat level were to

be established and for its functioning, the Panchayat Teachers

and Prakhand Teachers were to be appointed. Such teachers

were not only general teachers but also Urdu teachers, Physical

Trained Teacher with a different qualification and different

mode of selection. Their salary and other service conditions as

incorporated in the 2006 Rules also cannot be even remotely

compared, inasmuch as, whereas the earlier engagement of

Panchayat Shiksha Mitra was only for a period of eleven months

with a monthly stipend of Rs. 1500/- per month, the Panchayat

Teacher were to continue in service till sixty years of age and

with fixed remuneration of Rs. 4,000/- (now to Rs. 7,000/-) as

also periodical enhancement. If these provisions are closely

taken into account, the following passage in the case of

Gammon India Ltd. (supra) far from supporting Mr. Giri would

actually go against him.

“46. The principle which has been laid down in this case is that

whenever there is a repeal of an enactment, the

consequences laid down in Section 6 of the General Clauses

Act will follow unless, as the section itself says, a different

intention appears. In the case of a simple repeal there is

scarcely any room for expression of a contrary opinion. But

when the repeal is followed by fresh legislation on the same

subject we would undoubtedly have to look to the provisions

of the new Act, but only for the purposes of determining

whether they indicate a different intention. The line of

enquiry would be, not whether the new Act expressly keeps

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

84/89

alive old rights and liabilities but whether it manifests an

intention to destroy them. We cannot therefore, subscribe to

the broad proposition that Section 6 of the General Clauses

Act is ruled out when there is repeal of an enactment

followed by a fresh legislation. Section 6 would be

applicable in such cases also unless the new legislation

manifests an intention incompatible with or contrary to the

provisions of the section.”

I would examine the submission of Mr. Giri yet from

another angle. It is now an admitted position in the order of the

District Magistrate dated 26.6.2010 that the first application by

the appellant making a complaint with regard to the anomaly in

the selection and appointment of the writ petitioner on the post

of Panchayat Shiksha Mitra was filed on 14.9.2006. On

14.9.2006, the 2006 Rules had already come into force and,

therefore, no right had accrued to the appellant on the basis of

the repealed executive instruction relating to engagement on the

post of Panchayat Shiksha Mitra which could have been saved in

terms of Section 6 of the General Clauses Act. The distinction

between what is, and what is not a right preserved by the

provisions of Section 6 of the General Clauses Act is often one

of great fineness. What is unaffected by the repeal of statute is a

right acquired or accrued under it and not a mere „hope of

expectation of‟, or liberty to apply for, acquiring a right.

Lord Morris speaking for the Privy Council in the

case of Director of Public Works v. Ho Po Sang reported in (1961) 2

All.E.R. 721 had held as follows:-

"that it may be, therefore, that under some

repealed enactment, a right has been given but that, in

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

85/89

respect of it, some investigation or legal proceeding is

necessary. The right is then unaffected and preserved.

It will be preserved even if a process of quantification

is necessary. But there is a manifest distinction

between an investigation in respect of a right and an

investigation which is to decide whether some right

should be or should not be given. On a repeal, the

former is preserved by the Interpretation Act. The

latter is not.”

This view of Privy Council has also received approval of

the Apex Court in the case of Shivanand v. State Road Transport

Corp. reported in (1980) 1 S.C.C. 149.

Thus, when the appellant on her own showing till

coming of 2006 Rules came into force did not even question the

appointment of the writ petitioner on the post of Panchayat

Shiksha Mitra, she had no right accrued under the repealed

circular of Panchayat Shiksha Mitra much less right to get

herself appointed in place of the writ petitioner. It is well settled

that the power to take advantage of an enactment may without

impropriety be termed a “right”, but the question is whether it is

a “right accrued”. Lord Herschell said in Abbott v. Minister of

Lands reported in 1895 A.C. 425 had said that mere right

(assuming it to be properly so called) existing in the members of

the community or any class of them to take advantage of an

enactment, without any act done by an individual towards

availing himself of that right, cannot properly be deemed a

“right accrued.” This view has also been received approval in

India in the jugment of the Apex Court in the case of Lalji Raja &

Sons v. Hansraj Nathuram reported in (1971) S.C. 924, in the case of

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

86/89

Hingerfold Investment Trust Ltd. V. Haridas Mundra reported in 1972

S.C. 1826 and in the case of Zobrali V. Arjuna reported in 1980 S.C.

101.

In view of the settled law as discussed above, I

will have no difficulty in coming to a conclusion that the

appellant, on the basis of her so-called empanelment on the post

of Panchayat Shiksha Mitra in the year 2003 (after repeal of the

entire scheme of Panchayat Shiksha Mitra with effect from

1.7.2006), could have either brought a dispute by filing her

complaint in Janta Darbar on 14.9.2006 or could have sought

any direction for her appointment on the post of Panchayat

Shiksha Mitra. That was infact simply impermissible in view of

Rule 20(i) of the 2006 Rules.

The reliance placed by Mr. Giri on a Division Bench

judgment in the case of Kishori Prasad (supra) is also wholly

misplaced. First of all, the Division Bench in the case of Kishori

Prasad (supra) did not hold that upon abolition of the post of

Panchayat Shiksha Mitra, one, who had never been appointed on

the post of Panchayat Shiksha Mitra, could still be appointed

after enforcement of the 2006 Rules. To that extent, the three

cryptic paragraphs order of the Division Bench in the case of

Kishori Prasad (supra) does not decide any law.

As a matter of fact, from reading of the order of the

Division Bench judgment in the case of Kishori Prasad (supra),

it would become clear that it was actually a case of extension of

the working Panchayat Shiksha Mitra who already was engaged

on 12.5.2003 and was terminated on 21.7.2005. The issue before

the Division Bench was that whether his such termination on

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

87/89

21.7.2005 was valid and/or justified. Thus, whatever was stated

by the Division Bench as with regard to his reinstatement will

not at all be applicable to the facts of the case of the petitioner

because he was never appointed even for a day on the post of

Panchayat Shiksha Mitra and her appointment was directed only

by the impugned order passed by the District Magistrate,

Samastipur on 26.6.2010. In any event, the inferential support

being sought by Mr. Giri from the case of Kishori Prasad (supra)

will also be of no avail because the Division Bench had not even

noticed any statutory provision much less Rule 20 of the 2006

Rules and, therefore, it cannot be held to be a good law.

In this regard it has to be also mentioned here the first

part of the judgment in the case of Kishori Prasad (supra) has

already been dissented and disapproved by yet another Division

Bench in the case of Kedar Nath Tripathi Vs. The State of Bihar &

Ors. reported in 2008(3) PLJR 470. The order of the Division

Bench in the case of Kishori Prasad (supra) actually runs into 3

paragraphs, first one of which deals that no writ application

should be dismissed on merit in absence of the learned counsel

for the petitioner and should only be dismissed for default. This

part has already been explained and not followed in a

subsequent Division Bench judgment in the case of Kedar Nath

Tripathi (supra) wherein it was held as follows:-

“We heard Mr. Kamal Nayan Choubey, Senior Counsel

for the appellant. He vehemently contended that when the

petitioner or his counsel did not appear, the Single Jude had two

options viz;(i) adjourn the case; or (ii) dismiss the case for

default. He would, thus, contend that because of non-appearance

of the petitioner or his counsel, the Single Judge could not have

considered the matter on merit. He placed heavy reliance upon a

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

88/89

Division Bench decision of this court in the case of Kishori

Prasad vs The State of Bihar and Others [2008(2) PLJR 458],

more particularly, paragraph 3 of the report. That reads thus:-

“We have also earlier made it clear and we

again make it clear that where the learned counsel

for the petitioner is not present, the ordinary

course is either to postpone the hearing or to

dismiss it for want of prosecution but in no

circumstances it is to be decided on merit. The

same view has also been taken by the Hon‟ble

Supreme Court in number of matters.”

In our view, the aforesaid observations

cannot be said to laying down an absolute

proposition that in absence of the party or his

counsel, writ petition cannot be decided on merits.

It could not have been because there is no such

fetter imposed upon the Single Judge exercising

high prerogative jurisdiction under Article 226 of

the Constitution of India. It needs no elaboration

that the proceedings under Article 226 of the

Constitution are not governed by the Code of Civil

Procedure, 1908. Section 141 of the Code of Civil

Procedure excludes the applicability of the

provisions contained in the Civil Procedure Code

to the proceedings under Article 226 of the

Constitution. No judgment of the Supreme Court

has been brought to our notice holding otherwise

in so far as writ jurisdiction under Article 226 of

the Constitution of India is concerned.

We are, thus, of the view that in writ jurisdiction, even in

absence of the party of his counsel, it is open to the Court to proceed with

the matter on merits and decide accordingly.”

Having thus given my anxious consideration, I am of

the view that after 1.7.2006, no person, who was earlier an

Patna High Court LPA No.1569 of 2010 dt. 15-05-2014

89/89

aspirant for the post of Panchayat Shiksha Mitra, can be

appointed only because his or her name figured in the panel of

Panchayat Shiksha Mitra. The post of Panchayat Shiksha Mitra

has been abolished with effect from 1.7.2006 and after abolition

of the post, no one can be appointed on the post of Panchayat

Teacher on the basis of his mere empanelment of Panchayat

Shiksha Mitra. The view taken in the judgment of the Division

Bench in the case of Smt. Renu Kumari Pandey (supra) is a

good law. I will have no hesitation in holding that the earlier

Division Bench judgment in the case of Kishori Prasad (supra),

for the reasons indicated above, has not correctly decided the

law and is, accordingly, overruled.

In the result, this appeal fails and is, accordingly,

dismissed with cost as quantified by Hon‟ble the Chief Justice.

(Mihir Kumar Jha, J)

Ashwani Kumar Singh, J. I agree.

(Ashwani Kumar Singh, J)

A. F. R.

Sunil / Rishi