Letters Patent Appeal No. 1569 of 2010. Case: Kalpana Rani Vs The State of Bihar. High Court of Patna (India)
| Case Number | Letters Patent Appeal No. 1569 of 2010 |
| Counsel | For Appellant: Y.V. Giri, Senior Adv., Sanjay Kumar Singh, Advs. and For Respondents: Kumar Pankaj, A. C to S.C Nawal Kishore Singh, Maruth Nath Roy, Rajeev Kumar Verma, Sr. Adv., Mritunjay Kumar, Advs. |
| Judges | R. M. Doshit, C.J. and Mihir Kumar Jha, J. and Ashwani Kumar Singh , J. |
| Issue | Bihar Panchayat Raj Act (6 of 2006) - Section 146; Bihar Panchayat Elementary Teacher (Employment and Service Condition) Rules (2006) - Rule 20; Constitution of India - Articles 14, 226, 225; General Clauses Act (10 of 1897) - Section 6; Bihar and Orissa General Clauses Act (1 of 1917) - Section 8 |
| Citation | AIR 2014 Pat 173 |
| Judgement Date | May 15, 2014 |
| Court | High Court of Patna (India) |
Judgment:
R. M. Doshit, C. J.
-
This Appeal under Clause 10 of the Letters Patent preferred by the respondent No. 9 arises from the judgment and order dated 16th 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 26th June, 2010 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 1st January, 2009.
-
It appears that as early as in April 2003, the writ petitioner was appointed as Pancha-yat Shiksha Mitra under the Scheme. His appointment as Panchayat Shiksha Mitra was continued from time to time. Thus the petitioner continued till 1st July, 2006. On 1st 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 1st 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 26th 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 and Ors v. 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 and Ors. v. The State of Bihar and Ors. [2011 (4) PLJR 297], held that on and after 1st 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 September, 2011. On the submissions made by the learned counsel for the appellant, under order dated 28th 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 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. v. 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 v. Shivananda Pathak and others [ (1998) 5 SCC 513]: (AIR 1998 SC 2050); of Gammon India Ltd. v. Special Chief Secretary and others [2006(3) SCC 354]: (2006 AIR SCW 1004); of Balakrushna Behera and Anr. v. Satya Prakash Dash [2007 (4) PLJR (SC) 209]: (AIR 2008 SC 223); of Y. Satyanarayan Reddy v. Mandal Revenue Officer, Andhra Pradesh [(2009) 9 SCC 447]: (AIR 2010 SC 1440); of Fuljit Kaur v. State of Punjab and others [(2010) 11 SCC 455]: (AIR 2010 SC 1937); and of State of Punjab v. Salil Sabhlok and others [(2013) 5 SCC 1]: (AIR 2013 SC (Civ) 1361); and of this Court in the matter of Akhauri Krishna Kumar Sinha and Ors. v. Mundrika Prasad [1986 PLJR 1119]; of Prathmik Adhyapak Sangh v. The State of Bihar and Ors. [2003(2) PLJR 305]; of Abdul Quadir and Ors. v. The State of Bihar and Ors. [2008 (1) PLJR 31]; of Kishori Prasad v. The State of Bihar and Ors. [2008(2) PLJR 458]; of The State of Bihar and Ors. v. Indra Mohan Rai [2009 (2) PLJR 869]: (2009 Lab IC 1053 (Pat)); of Alok Kumar and Ors. v. State of Bihar and others [2009 (2) PLJR 929]; of Indu Devi v. The State of Bihar and Ors. [2010(2) PLJR 241]; of Smt. Renu Kumari Pandey and Ors. v. The State of Bihar and Ors. [2011 (4) PLJR 297]; of Rima Kumari v. The State of Bihar and Ors. [2012(1) PLJR 107]; of Umesh Chandra Shiva v. The State of Bihar and Ors. [ 2012(1) PLJR 585]; of Pintu Das v. The State of Bihar and Ors. [2012(2) PLJR 317]; of Subodh Kumar Yadav and Anr. v. The State of Bihar and Ors. [2012(3) PLJR 261]; and of Awadh Bihari Rai v. The State of Bihar and 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 v. Shivananda Pathak and others [(1998) 5 SCC 513]: (AIR 1998 SC 2050) and of Prathmik Adhyapak Sangh v. The State of Bihar and 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 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 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...
To continue reading
Request your trial