Patna High Court
Arvind Kumar Tiwari & Anr vs The State Of Bihar & Ors on 13 January, 2017
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.12176 of 2015
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1. Arvind Kumar Tiwari S/o Late Arun Kumar Tiwari Resident of Mohalla -
Deorahababa Colony, P.O. Chapra, P.S. - Town, District - Saran.
2. Pushpraj Padmakar S/o Sri Mohan Prasad Singh R/o Village - Madhopur,
Hazare, P.S. - Sahebganj, District - Muzaffarpur.
.... .... Petitioners.
Versus
1. The State of Bihar through the Secretary Human Resource Development
Department, Government of Bihar, Patna.
2. The Principal Secretary, Panchayati Raj Department, Government of Bihar,
Patna.
3. The Secretary Personnel and Administrative Department, Government of Bihar,
Patna.
4. The Patna Vigilance Commissioner, Government of Bihar, Patna.
.... .... Respondents.
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Appearance :
For the Petitioners None :
For the Respondent/s :
Mr. Bishwa Bibhuti Kumar Singh,
AC to PAAG-I.
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH) Date: 13-01-2017 None appears for the petitioners. However, learned counsel for the respondents is present.
2. The relief prayed for in the writ application reads Patna High Court CWJC No.12176 of 2015 dt.13-01-2017 2/16 as:
I. The respondents may kindly be directed to ensure amendment into 2nd Half of the clause 4(2) of the Bihar Panchayat Primary Teacher (Employment and Service Condition) Rules 2008 issued vide Human resource Development department Notification No. NI-3-02/06 part Kha 3148 dated - 25.08.2008, while taking recourse of Article 243 G of the constitution of India & Section 47,48 read with section 146 of the Bihar Panchayat Raj act 2007, with retrospective effect.
II. By way of said amendment after -
ijUrq vizf'kf{kr mEehnokjksa dh es?kk lwph rS;kj djus esa ljdkj }kjk iwoZ esa lapkfyr yksd f'k{k.k dsUnzksa ds yksdf'k{kd fo|ky; esa i<+kus okys iwoZ ds f'k{kkfe=] vukSipkfjd f'k{kk ds vuqns'kd rFkk fcgkj f'k{kk ifj;kstuk }kjk lapkfyr iz;kl dsUnz] vaxuk@viuk fo|ky;] cky oxZ ,oa oSdfYid f'k{kk dsUnzksa esa f'k{k.k dk;Z dk vuqHko izkIr dfeZ;ksa dks lE;d~ vf/kHkkj ¼(osVt s ) fn;k tk;sxkA the word Samyak Adhibhar (Appropriate weightage) be defined /explained categorically (step by step) with respect to abovesaid teachers who have worked as a- Lok Shikshak in lok Shiksha Kendra b- Ex- Shiksha Mitra of Schools c- Instructors Under Non-formal Education and for those d- Having teaching experience at prayas Kendra, Patna High Court CWJC No.12176 of 2015 dt.13-01-2017 3/16 Angna/Aapna Vidyalaya, Bal Verg and other Alternative Education Centres run under the Bihar Education Project. III. But prior to fixation of the weightage abovesaid the ingredient satisfying their appointment as genuine and valid must be tested at the anvil of a- Publication of Advertisement inviting wide participation, b- Selection by the competent authority followed by due process of law c- Having genuine appointment letter in original. d- Proof of joining and continuation.
e- Documents showing regular payment in lieu of regular work.
f- Experience certificate issued by the authority having due sanction of law.
g- Any other verification/satisfaction found essential for said purpose.
IV. Any other modification/rectification/explanation also may kindly be made which found just, proper rational and reasonable in the opinion of this Hon'ble Court.‖
3. The petitioners being ‗Whistle-blowers', challenged the validity of Clause 2 of Rule 4 of Bihar Panchayat Primary Teachers (Employment and Service Conditions) (Amendment) Rules, 2008 (hereinafter referred to as ‗2008 Rules') since while watching the court proceeding of C.W.J.C. No. 15459 of 2015 and Patna High Court CWJC No.12176 of 2015 dt.13-01-2017 4/16 going through the materials available in print media, electronic media, including public dealings of classified intellectuals, the petitioners felt that bungling in selection of Panchayat Teachers is going on on account of production of forged documents, particularly, the experience certificates due to vagueness under Clause (2) of Rule 4 of 2008 Rules. Hence, the present writ application.
4. It appears imperative to take chronological background in which 2008 Rules have been enacted to appreciate the issue in question. For strengthening the democracy at grass root level, Part IX of the Constitution was inserted by the Constitution (73rd Amendment) Act, 1992. The original Part IX, consisting of Article 243 was repealed in the year 1956. The Part IX of the Constitution (73rd Amendment) Act, 1992 came into force on 24.4.1993. Article 243B of the Constitution deals with Constitution of Panchayat while Article 243C deals with composition of three tear Panchayats, namely, Panchayat Raj, Panchayat Samiti and Zila Parishad. Article 243 under Part IX of the Constitution of India has been inserted by 73rd Amendment to implement Panchayat Raj system for empowerment of local self government, to encourage grass-root democracy and ultimately, to realize the goal of a true socialist polity by ensuring rural upliftment on mass level. Article 243G envisages the powers, authority Patna High Court CWJC No.12176 of 2015 dt.13-01-2017 5/16 and responsibility of the Panchayat which prescribes that the legislature of the State subject to the provisions of the Constitution, may, by law, endow the Panchayats with such powers and authority as may be necessary to enable them to function as institution of self-government and such law may contain provisions for the devolution of powers and responsibility upon Panchayats at the appropriate level, with respect to the preparation of plans for economic development and social justice, the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule. Item no. 17 of Eleventh Schedule of the Constitution includes education, including primary and secondary schools. The State of Bihar, after independence, opted to develop local self government and promulgated Bihar Gram Panchayat Raj Act, 1947 (Bihar Act 99/1948). Bihar Gram Panchayat Raj Act 1947 was repealed by Bihar Gram Panchayat Raj Act, 1993. The 1993 Act has consequently been repealed by the present Bihar Gram Panchayat Raj Act, 2006 (hereinafter called ‗2006 Act') . Section 47 of the 2006 Act deals with the functions and power of Panchayt Samiti. Section 47 (14)(i) deals with promotion of Primary and secondary education. Section 47 (14)(i) of the Act reads as follows:
―47. Functions and power of Panchayat Samiti - (1) Subject to such conditions as may be prescribed by the Government from time to time, the Panchayat Samiti shall Patna High Court CWJC No.12176 of 2015 dt.13-01-2017 6/16 undertake the following :-
...............
(14) Education, including Primary and Secondary Schools-
(i) Promotion of Primary and secondary Education ............‖
5. Section 146 of the Act deals with power to the Government to make rules. In exercise of the provisions of Article 243G
- item no. 17 of Eleventh Schedule and Sections 47 and 146 of the Act, the State Government enacted Bihar Panchayat Primary Teachers (Employment and Service Conditions) Rules, 2006 (hereinafter referred to as ‗2006 Rules') to implement the provisions under Article 21A of the Constitution of India whereby right to free and compulsory education of the children between 6 to 14 years of age has become fundamental right and the State has been entrusted upon to provide free and compulsory education to all children of the age of 6 to 14 years.
6. Rule 4 of 2006 Rules prescribes the mode of employment of the Primary Teachers which suggests that the appointment of Panchayat Teachers will be made by Gram Panchayat. Clause (2) of Rule 4 prescribes that the separate panel should be prepared for trained and untrained teachers. The trained teachers will be appointed first and thereafter on availability of vacancy, the untrained teachers will be appointed but they will be provided a training for two Patna High Court CWJC No.12176 of 2015 dt.13-01-2017 7/16 years. In case of non-availability of candidates having higher secondary qualification for being appointed under the reserved quota, the candidates having secondary qualification will be appointed provided they will be required to acquire the requisite qualification within six years. Rule 4 reads as follows:
4- iapk;r izkjafHkd f'k{kdksa dk fu;kstu%& (1) iz[kaM f'k{kdksa dk fu;kstu e/; fon~;ky; esa iapk;r lfefr ds }kjk rFkk iapk;r f'k{kd dk fu;kstu izkFkfed fon~;ky;ksa esa xzke iapk;r ds }kjk fd;k tk;sxkA (2) 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 oÔhZ; izf'k{k.k nsus dh O;oLFkk dh tk;sxhA (3) vkjf{kr dksfV esa mPprj ek/;fed@bUVjehfM;V ijh{kk ikl mEehnokj miyC//k ugha gksus dh fLFkfr esa ek/;fed ijh{kk ikl mEehnokjksa dks Hkh fu;ksftr fd;k tk ldsxkA ijUrq mUgsa fu/kkZfjr ;ksX;rk vf/kdre 6 oÔksZa ds vUnj izkIr djuk vfuok;Z gksxkA [The above quoted Rule on translation in English would read as:
―4. Employment of the Panchayat Primary Teachers:- (1) Block Teachers shall be provided Employment by the Panchayat Samiti in the Middle School and Panchayat Teachers shall be provided employment by the Gram Panchayat, in the Primary School.
(2) As per requisition of teachers, the panel of Patna High Court CWJC No.12176 of 2015 dt.13-01-2017 8/16 trained and untrained candidates shall be prepared, category-
wise on both levels separately. First of all, trained teachers shall be employed. The untrained teachers (except physical trained teachers) shall be employed against the remaining vacancies.
But while preparing the merit list of the untrained candidates, proper weightage shall be given to the Lok Shikshak teaching in the training centres conducted by the Government, earlier Shiksha Mitra teaching earlier in schools, Instructors of the Non-formal Education, and employees having experience of teaching at Prayas Kentra, Angana/Apna Vidyalay, Bal Verg and alternative education centres conducted by Bihar Education Project.
Arrangement shall be made to impart two years training to untrained teachers.
First of all, employment shall be provided to the trained teachers. Thereafter, in case of availability of vacancy, the untrained teachers shall also be employed and arrangement shall be made for imparting two years training to them.
(3) In case of non-availability of the candidates passing higher secondary/Intermediate examination in the reserved category, the secondary pass candidates shall also be given employment but it shall be obligatory for them to obtain the prescribed qualification within a maximum period of six years.‖] 2006 Rules was amended by the Bihar Panchayat Patna High Court CWJC No.12176 of 2015 dt.13-01-2017 9/16 Primary Teachers (Employment and Service Conditions) (Amendment) Rules, 2008 (hereinafter referred to as ‗2008 Rules'). Clause 2 of Rule 4 of amended 2008 Rules read as follows:
2- fcgkj iapk;r izkjafHkd f'k{kd ¼fu;kstu ,oa lsok 'krZ½ fu;ekoyh] 2006 ds fu;e 4 ds mifu;e ¼2½ dk la'kks/kuA& mDr fu;ekoyh ds fu;e 4 dk mifu;e (2) fuEufyf[kr }kjk izfrLFkkfir fd;k tk;sxk%& ¼2½ f'k{kdksa dh v/;is{kk ds vuqlkj nksukas 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 vo'ks"k fjfDr;ksa ij vizf'kf{kr f'k{kdksa 'kkjhfjd f'k{kk f'k{kd ds in dks NksM+dj½ dk fu;kstu fd;k tk ldsxkA ijUrq vizf'kf{kr mEehnokjksa dh es?kk lwph rS;kj djus esa ljdkj }kjk iwoZ esa lapkfyr yksd f'k{k.k dsUnzksa ds yksdf'k{kd fo|ky; esa i<+kus okys iwoZ ds f'k{kkfe=] vukSipkfjd f'k{kk ds vuqns'kd rFkk fcgkj f'k{kk ifj;kstuk }kjk lapkfyr iz;kl dsUnz] vaxuk@viuk fo|ky;] cky oxZ ,oa oSdfYid f'k{kk dsUnzksa esa f'k{k.k dk;Z dk vuqHko izkIr dfeZ;ksa dks lE;d~ vf/kHkkj ¼(osVt s ) fn;k tk;sxkA vizf'kf{kr f'k{kdksa ds fy, nks o"khZ; izf'k{k.k dh O;oLFkk dh tk;sxhA [The above quoted Rule on translation in English would read as:
―2. Amendment in Sub Rule (2) of Rule 4 of the Bihar Panchayat Primary Teacher (Employment and Service Condition) Rules, 2006:- Sub Rule (2) of Rule 4 of the said Rules shall be substituted by the following:- Patna High Court CWJC No.12176 of 2015 dt.13-01-2017 10/16 (2) As per requisition of teachers, a categorywise panel of trained and untrained candidates shall be prepared separately at both stages. Firstly, the trained teachers shall be employed. The untrained teachers may be employed against the remaining vacancies (excluding the post of Physical Education Teachers).
However, due weightage shall be given to the Lok Shikshak of Lok Shikshan Kendras run earlier by the government, previous Shiksha Mitra teaching in the school, instructor of Non-formal Education and the employees having experience of teaching at Prayas Kendra run by the Bihar Education Project, Angana/Apna Vidyalay, Bal Varg and Alternative Education Centres while preparing the merit list of untrained candidates.
Arrangement shall be made to impart training for two years to the untrained teachers.‖]
7. The amended provision of 2008 Rules expanded the zone of consideration of the candidates for being appointed as untrained teachers by providing weightage to those who have been /have worked in various programs or schemes relating to educational activities running under Sarv Shiksha Abhiyan, such as Lok Shikshak, Shiksha Mitra, Instructors of Non-formal education and the person having teaching experience from the institutions run by the Bihar Education Project, such as, Prayas Kendra, Angana/Apna Vidyalaya, Patna High Court CWJC No.12176 of 2015 dt.13-01-2017 11/16 Bal Varg and the persons teaching in Optional Education Centers.
2006 Rules was further amended by Bihar Panchayat Primary Teachers (Employment and Service Condition) (Amendment) Rules, 2009 but no amendment was made in Rule 4. Now, the Bihar Panchayat Primary Teachers (Employment and Service Condition) Rules, 2012 (hereinafter referred to as (‗2012 Rules') has been enacted. 2006 Rules including the resolution orders circular issued under 2006 Rules have been repealed by Rule 18 of 2012 Rules, which reads as:
―18- fujlu ,oa O;ko`fRrA&(1) bl fu;ekoyh ds izHkkoh gksus dh frfFk ls xzkeh.k {ks= ds izkjafHkd fon~;ky;ksa esa f'k{kdkssa ds fu;kstu ls lacaf/kr fu;kstu fu;ekoyh&2006 rFkk rRlEcfU/kr ladYi] vkns'k] vuqns'k vkfn fujLr ekus tk;saxsA (2) ,sls fujlu ds gksrs gq, Hkh ,sls fu;ekoyh] vkns'k] vuqns'k ds v/khu fd;s x;s dk;Z ;k dh xbZ dkjZokbZ bl fu;ekoyh ds vUrxZr dh xbZ le>h tk;sxhA iwoZ ds ftyk laoxZ ds f'k{kdksa ds lsok 'krksZa ij bldk izHkko ugha iM+sxkA fo'ksÔ f'k{kd fu;qfDr fu;ekoyh 2010 ij Hkh bldk izHkko ugha iM+xs kA [The above quoted Rule on translation in English would read as:
―18. Repeal and Savings:- (1) The Employment Rules, 2006 and corresponding resolution, order, instruction etc. with regard to employment of teachers in the Primary Schools of the rural area, shall be deemed repealed with effect from the date of these rules coming into force. Patna High Court CWJC No.12176 of 2015 dt.13-01-2017 12/16 (2) Notwithstanding such repeal, any work done or action taken under these rules, order, instruction, shall be deemed to be done under these rules. It shall not have any effect on the service conditions of the previous teachers of District Cadre. It shall not have any bearing on the Teachers Recruitment Rules, 2010.‖] Now 2012 Rules has also been amended by Bihar Panchayat Primary Teachers (Amendment) Rules, 2014.
8. Prior to the coming into force of 2006 Rules, the teachers at the primary level were used to be known as ‗Shiksha Mitras' and were used to be engaged on contract basis for eleven months under executive instructions for carrying out education in the primary schools of Panchayat but after coming into force of Rule 2006, the post of Shiksha Mitra was abolished and under Rule 20(i) thereof, the Shiksha Mitra who were working on 1.7.2006, the date 2006 Rules came into force, were absorbed. Hence, from the discussions made above, it is apparent that the petitioners are aggrieved with Clause (2) of Rule 4 of 2008 Rules which was brought in existence through amendment of 2006 Rules but the said Rule is no longer in existence as 2006 Rules in the Amendment Rules 2008 and 2009 have been repealed by 2012 Rules and the new parameters for appointment of teachers have been fixed under Rule 5 of 2012 Rules which is more specific and reasonable. Patna High Court CWJC No.12176 of 2015 dt.13-01-2017 13/16
9. It appears that the petitioners being Whistle Blowers have preferred the writ application in 2015 on mere presumption and without going through the present 2012 Rules.
10. The grounds on which an enacted law or statues could be invalidated or could not be invalidated have been categorized by the Apex Court in the case of Namit Sharma Vs. Union of India reported in (2013) 1 Supreme Court Cases 745. Paragraph nos. 11 and 12 read as follows:-
Paragraph 11 ―An enacted law may be constitutional or unconstitutional. Traditionally, this Court had provided very limited grounds on which an enacted law could be declared unconstitutional. They were legislative competence, violation of Part III of the Constitution and reasonableness of the law. The first two were definite in their scope and application while the cases falling in the third category remained in a state of uncertainty. With the passage of time, the law developed and the grounds for unconstitutionality also widened. D.D. Basu in Shorter Constitution of India (14th Edn.,2009) has detailed, with reference to various judgments of this Court, the grounds on which the law could be invalidated or could not be invalidated. Reference to them can be made as follows:
Patna High Court CWJC No.12176 of 2015 dt.13-01-2017 14/16 ―Grounds for unconstitutionality.--A law may be unconstitutional on a number of grounds:
(i) Contravention of any fundamental right, specified in Part III of the Constitution. (............)
(ii) Legislating on a subject which is not assigned to the relevant legislature by the distribution of powers made by the Seventh Schedule, read with the connected articles. (.............)
(iii) Contravention of any of the mandatory provisions of the Constitution which impose limitations upon the powers of a legislature e.g. Article 301. (..........)
(iv) In the case of a State law, it will be invalid insofar as it seeks to operate beyond the boundaries of the State. (............)
(v) That the legislature concerned has abdicated its essential legislative function as assigned to it by the Constitution or has made an excessive delegation of that power to some other body. (............) Paragraph 12 On the other hand, a law cannot be invalidated on the following grounds:
―(a) That in making the law (including an Ordinance), the law-making body did not apply its mind (even though it may be a valid ground for challenging an executive act), (..........) or was promoted by some improper motive. (.........)
(b) That the law contravenes some constitutional limitation which did not exist at the time of enactment of the Patna High Court CWJC No.12176 of 2015 dt.13-01-2017 15/16 law in question. (...........)
(c) That the law contravened any of the directive contained in Part IV of the Constitution. (..........)‖
11. In the present writ application, the petitioners have not made out any substantial ground questioning the validity of 2008 Rules. They have only raised an apprehension that the provisions of the Rule may be misused. The vagueness in the Rule has been sought to be pleaded by not specifying the nature of the vagueness claimed by the petitioners. The present writ application has become infructuous in view of the fact that now Bihar Panchayat Primary Teachers (Appointment and Service Conditions) Rules, 2012 has been brought in existence with effect from 03.04.2012. The Rule 18 of 2012 Rules is repealing provision whereby Bihar Panchayat Primary Teachers (Appointment and Service Conditions) Rules, 2006 has been repealed along with 2008 Amendment Rules.
12. Hence, we are of the view that the petitioners have not made out any ground for questioning the validity of Clause (2) of the Rule 4 of 2008 Rules. The writ application has been filed on mere apprehension and misconception that the provision of repealed Rules will be misused.
13. In view of the discussion made above, the writ application is absolutely misconceived.
Patna High Court CWJC No.12176 of 2015 dt.13-01-2017 16/16
14. Accordingly, the present writ application is dismissed.
(Hemant Gupta, ACJ)
(Dinesh Kumar Singh, J)
DKS/-Anil/
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 23.02.2017
Transmission NA
Date