Sanjay Kumar Gupta vs State of Bihar - 2021 Supreme(Pat) 1164

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Pat) 1164

IN THE HIGH COURT OF JUDICATURE AT PATNA
ANIL KUMAR UPADHYAY, J.
CWJC Nos. 19205 of 2016 with 22519, 22700, 22769, 22862, 23100, 24017 of 2018; 3413, 5253, 5956 of 2019; 2046 of 2020
(17.3.2021)
Sanjay Kumar Gupta & Anr. (in 19205)
Rakesh Kumar Singh & Ors. (in 22519)
Ajay Kumar Tiwari & Ors. (in 22700)
Sharwan Kumar & Ors. (in 22769)
Md. Imtayaz Haider & Ors. (in 22862)
Raushan Kumar & Ors. (in 23100)
Sumit Kumar & Ors. (in 24017)
Archana Kumari & Ors. (in 3413)
Sanjeet Kumar & Anr. (in 5253)
Prem Kumar & Ors. (in 5956)
Supriya (in 2046)
vs.
State of Bihar & Ors. ... Respondents
(in all)

Advocates:
For the Petitioners: M/s Siya Ram Shahi, Sanjay Kumar Tiwari (in 19205); Prince Kumar Mishra (in 22519, 22862, 23100, 3413, 5956); P. K. Shahi, Sr. Adv., Vipin Kumar (in 22700, 5253);Brisketu Sharan Pandey (in 22769); Vipin Kumar (in 24017); Mukesh Kumar (in 2046);
For the Respondents: M/s Lalit Kishore, Pawan Kumar, Prince Kumar Mishra (in 19205); Subhash Chandra Mishra (in 22519, 5956); Umesh Narayan Dubey (in 22700); Narendra Kumar (in 22769); Smt. Shilpa Singh (in 22862, 24017); Ram Vinay Pd. Singh (in 22862); Prabhat Ranjan Singh(in 23100); Smt. Binita Singh(in 3413); Kameshwar Kumar (in 5253); Amit Bhushan (in 2046);
For the BPSC : M/s Sanjay Pandey (in all); Nishant Kumar Jha (in 19205, 22519, 22700, 22769, 5253); Viksash Kumar (in 2046);
For the Interveners : Mr. Shashi Bhushan Singh (in 19205, 22519);
For Interveners : Md. Kamaluddin (in 22519);
For Intervener Nos. 7-18 : Mr. Sanjeev Kumar Singh (in 22519);
For Intervener Nos. 26-30 : Mr. Siya Ram Shahi(in 22519);

Headnote:
Bihar Education Services Rules, 2014 – Rules 15 (Ch)(iii) and 28(1)(ii) – Appointment of Lecturers in Teachers Training Colleges – Niyojit Teachers are working in Government School and in terms of Rule 28, those who have completed three years, they are eligible in terms of Rule – Exclusion should be specific and cannot be inferred since Rule does not exclude Niyojit Shikshak any construction to exclude Niyojit Shikshak from zone of consideration would be unsustainable – Construction which exclude Niyojit Teacher from zone of consideration for Limited Competitive Examination is in teeth of Rule, 2014 – Rule cannot be diluted or read down in light of advertisement or Executive instruction – Rule shall prevail and it cannot be read down or diluted by terms advertisement or by way of correspondence between BPSC and Secretary of Department – Since Rule is most unambiguous and does not provide any construction or interpretation for Teacher, term for exclusion of Niyojit Teacher on the basis of correspondence made by BPSC with Principal Secretary or Director (Research and Training) is not going to help in the matter of construction of Rule – If any of Rule is unambiguous, there is no question of any external aid or any question of interpretation – Rule has to be given full effect and BPSC and respondents directed to strictly follow the rule which does not make distinction between Government Teacher or Regular Teacher or Niyojit Shikshak – BPSC directed to reconsider case of petitioner. (Paras 18 to 22 and 24)

Anil Kumar Upadhyay, J.—Heard Mr. Siya Ram Shahi, learned counsel for the petitioners in C.W.J.C. No. 19205 of 2016. Mr. P. K. Shahi, learned senior counsel appearing on behalf of the petitioners in C.W.J.C. No. 22519 of 2018 and Mr. Sanjay Pandey, learned counsel appearing on behalf of Bihar Public Service Commission.

2. C.W.J.C. No. 19205 of 2016 was filed by two petitioners challenging the Advertisement No. 06/2016 as well as validity of Rule. However, it was admitted by the learned counsel for the petitioners before the Division Bench that validity of any rule framed under the Bihar Education Services Rules, 2014 is not under challenge and they are only challenging the validity of Advertisement no.06/2016 that the advertisement is contrary to the statutory rules and that is why these matters have been placed before the learned Single Bench.

3. On 21.08.2018, after hearing the parties a Coordinate Bench of this Court has passed the following orders:—

“Heard the parties.

The petitioners, in the present writ application, are aggrieved by the Advertisement No.06/2016, issued by the Bihar Public Service Commission in respect of appointment of Lecturer through a limited competitive examination in the Government Training Colleges.

The Counsel for the petitioners submits that the petitioners are mainly aggrieved by the Note of the advertisement, which governs the eligibility criteria of the candidates in respect of the above referred advertisement.

Note of the advertisement is as follows :

^^uksV%& f'k{kd ls rkRi;ZZ ^^izkFkfed@eè;@mPPk@mPprj ¼10+2½ Lrj ds ljdkjh fo|ky;ksa esa dk;Zjr fu;fer@fu;fer fu;ksftr f'k{kd** ls gSA f'k{kkfe=k ,oa vU; fdlh Hkh izdkj ds f'k{kd bl vf/;kfpr Ikn ij fu;qfDr gsrq ik=k ugha gksxsaA**

Same includes “Niyamit Niyojit Shikshak” as to when Rule 28(1)(ii) of the Bihar Shikshak Seva Niyamabali, 2014 is as follows :

^^28- fu;qfDr dh izfØ;kA&¼1½ ewy dksfV esa fu;qfDr fuEuor dh tk,xhA

(i) ewy dksfV ds 50 izfr'kr inksa ij fu;qfDr lh/kh HkrhZ ls dh tk,xhA

(ii) 'ks"k 50 izfr'kr inksa ij fu;qfDr jkT; ds ljdkjh fo|ky;ksa esa dk;Zjr oSls f'k{kdksa ftudh lsok vof/k 3 o"kksZa ls de dh u gks rFkk in ds fy, fuèkkZfjr vgZrk /kkfjr djrs gksa] ls lhfer izfr;ksfxrk ijh{kk ds ekè;e ls dh tk,xhA mUgsa vf/kdre vk;q lhek esa 05 o"kksaZ dh NwV vuqekU; gksxhA

(iii) fu;qfDr gsrq ewy dksfV esa inksa dh x.kuk fo"k;okj fjfDr ds vk/kkj ij dh tk;sxh vkSj fu;qfDr Hkh fo"k;okj dh tk,xhA**

The said Rule only refers to teachers in Govt. School and not Niyamit Niyojit Shikshak. Hence the inclusion of Niyamit Niyojit Shikshak in the advertisement by the B.P.S.C. is in contravention to Rule 28(1)(ii).

The petitioners have further relied upon the order dated 20.06.2017 passed in C.W.J.C. No.12005 of 2016. The said writ application was disposed of in the terms as elaborated in paragraph 3, which is as follows :

“3. From the counter affidavits filed on behalf of the State as well as the Bihar Public Service Commission, it transpires that the persons who have been allowed to take part in the said Limited Competitive Examination are only those who are regular Government teachers and not persons who had been appointed as Shiksha Mitras and later on became Panchayat/Block/Nagar Teachers employed on contractual basis.”

Considering the aforesaid facts as stated above, the respondents are directed to file further counter affidavit, in the light of the submissions made on behalf of the petitioners, within a period of four weeks.

However, participation of the category of Niyamit Niyojit Shikshak will not confer any indefeasible right to such candidates of the said category which will be subject to the final outcome of this writ application.

List this matter on 26.09.2018 under the heading ‘For Orders’.”

4. On the other hand, C.W.J.C. No. 22519 of 2018 has been filed by 60 petitioners against the letter no. 458 dated 12.10.2018 issued by the Principal Secretary, Education, Department, Bihar, Patna whereby the Principal Secretary, Education, Department, Bihar, Pat