Heard learned Counsel for the petitioner and the State.

The petitioner, a Panchayat Teacher, belonging to the Scheduled Tribe, is aggrieved by the order dated 19.1.2010 passed by the District Teachers Appointment Appellate Tribunal, Bhagalpur setting aside her appointment as having been made contrary to law in violation of the reservation roster.

2. Learned Counsel for the petitioner submits that she was appointed as a Shiksha Mitra on 7.2.2006. Relying on a Bench decision reported in 2009 (2) PLJR 929 (Alok Kumar Vs. The State of Bihar) it is submitted that the time limit or filing of complaints by an aggrieved against such appointment was 30 days. No such complaint was filed. The Bihar Panchayat Primary Teachers (Appointment and Service Conditions) Rules 2006 (hereinafter called the Appointment Rules) was promulgated on 1.7.2006. By virtue of Rule 20 the petitioner holding the post of Shiksha Mitra on that date automatically by operation of law acquired the status of a Panchayat Teacher. Assuming that her appointment could have been scrutinized even at this stage, the matter had to be considered by the Block Development Officer under Rule 18. Though no period of time is prescribed for filing of a complaint under the Rules, it has to be understood as having to be filed within a reasonable time. The complaint in question was filed much belatedly on 20.8.2009 by the new incumbent Mukhiya before the Appellate Tribunal (hereinafter referred to as the Tribunal) directly on 20.8.2009. The Bihar Panchayat Primary Teachers (Appointment and Service Conditions) (Amendment) Rules 2008 (hereinafter called the Amended Rules) promulgated on 25.8.2008 provides that an appeal shall lie before the Tribunal from the orders passed by the Block Development Officer under Rule 18.The impugned order passed directly by the Appellate Authority is not only without jurisdiction but also deprives the petitioner of an appellate remedy.

3. Counsel for the State contends that the impugned order returns a finding that the vacancy against which the petitioner was appointed belonged to the Scheduled Caste category. Under the Reservation Rules of 1991, if no scheduled caste candidate was available the vacancy was required to be carried forward for three years whereafter it could have been transferred to the Scheduled Tribe category. The very appointment of the petitioner as a Shiksha Mitra was therefore contrary to the reservation roster. That being so the petitioner cannot be held to have acquired the status of Panchayat Teacher on 1.7.2006. The appointment was ab initio void.

4. The counter affidavit and the supplementary counter affidavit filed by the respondents do not allege that the petitioner did not hold the requisite qualification for being appointed as a Shiksha Mitra and/or a Panchayat Teacher. There is no explanation in the two counter affidavits that if reservation roster was not followed on 7.2.2006 why the matter was not enquired into within reasonable time if not within 30 days. Rule 11 of the Appointment Rules visualizes examination of documents. The power for scrutinising the appointment of the petitioner under Rule 20 of the Appointment Rules was again available to the respondents. There shall be a presumption that they found no irregularity in the same. In any event the operation of the reservation roster was the responsibility of the respondents and not of the petitioner. If the reservation roster has been violated the petitioner cannot be visited with the consequence simplicitor unless those who violated the reservation roster are first made answerable. There is no allegation in the order of the Tribunal of the petitioner having manipulated and knowingly obtained a wrong appointment contrary to the roster.

5. Even after the petitioner acquired the status of Panchayat Teacher on 1.7.2006, nonetheless importing the principles contained in Rule 18 of the Appointment Rules no complaint was filed with regard to her appointment within reasonabl