Arun Kumar Kumar vs The State Of Bihar
2021 Latest Caselaw 5722 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                      Civil Writ Jurisdiction Case No.7119 of 2021
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1. Arun Kumar Kumar, Son of Late Hrishikesh Kumar, Resident of Kumar Bajitpur, P.S.- Patepur, District- Vaishali.

2. Ravindra Nath Pandey, Son of Late Shri Krishna Pandey, Resident of Pandeypur, P.S.- Shahpur, District- Bhojpur.

3. Kamlesh Sharma, Son of Late Rajeshwar Sharma, Resident of Village-

Larhpur, P.S.- Phulwariya, District- Gopalganj.

4. Ram Taqua Tiwari, Son of Late Keshva Tiwari, Resident of Pandey Pali Buxar Mufassil, P.s.- Mufassil, District- Buxar.

5. Ranjit Singh, Son of Late Yamuna Prasad Singh, Resident of Quarter No. 10, Line No. 3, Vidyapati Nagar, Baridih, Jamshedpur, P.S.- Sidgora, District- East Singhbhoom, State- Jharkhand.

6. Shobhi Paswan, Son of Late Shimbhu Paswan, Resident of New Etwarpur, P.S.- Parsa Bazar, District- Patna.

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Department of Education, (Primary Education), Govt. of Bihar, New Secretariat, Patna.

2. The Principal Secretary, Department of Education, (Primary Education), Govt. of Bihar, New Secretariat, Patna.

3. The Director, Department of Education, (Primary Education), Govt. of Bihar, New Secretariat, Patna.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Arun Kumar, Advocate Mr. Raghubir Chandraayan, Advocate For the Respondent/s : Mr. Ajay Kumar Rastogi, AAG-10 Mr. Shashi Shekhar Tiwary, A.C. to AAG-10 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 01-12-2021

Petitioners have prayed for the following relief(s):-

"a. For issuance of an appropriate Writ in the nature of certiorari for quashing Sub Patna High Court CWJC No.7119 of 2021 dt.01-12-2021

Rule kha of Rule 5 (i) of Bihar Rajya Shikshan Sansthan Shikshak Evam Karmchari (Shikayat Nivaran Evam Appeal) Rules 2020 as contained in Notification bearing Memo No. 715 dated 25.08.2020 issued under the signature of the Additional Chief Secretary, Education Department, Govt. of Bihar as the aforesaid provision prescribing the eligibility criteria for appointment of Presiding Officer of District Appellate Authority is wholly unreasonable, arbitrary and malafide.

b. For issuance of an appropriate Writ in the nature of certiorari for quashing the Press Communiqué as issued under the signature of the Director (Primary Education) of the Education Department, Government of Bihar dated 05thof February 2021 by which Applications have been invited in the prescribed Format for appointment of Presiding Officers of the District Appellate Authority in altogether 38 districts of the State of Bihar on the basis of the eligibility as prescribed in Sub Rule kha of Rule 5 (i) of Bihar Rajya Shikshan Sansthan Shikshak Evam Karmchari (Shikayat Nivaran Evam Appeal) Rules 2020 as contained in Notification bearing Memo No. 715 dated 25.08.2020 as well as on the basis of several anomalies.

c. For issuance of an appropriate Writ holding and declaring the aforesaid Press Communiqué dated 05th of February 2021 to be Patna High Court CWJC No.7119 of 2021 dt.01-12-2021

in teeth of the provisions of Bihar Rajya Shikshan Sansthan Shikshak Evam Karmchari (Shikayat Nivaran Evam Appeal) Rules 2020 as contained in Notification bearing Memo No. 715 dated 25.08.2020 and furthermore the impugned Press Communiqué is also in teeth of Article 14 and 16 of the Constitution of India.

d. For issuance of an appropriate Writ in the nature of Mandamus commanding the Respondents to treat the Petitioners as having been appointed/continuing on the post of Presiding officers of District Teacher Appellate Authority in terms of the saving clause 25 (iii) of the Bihar Rajya Shikshan Sansthan Shikshak Evam Karmchari (Shikayat Nivaran Evam Appeal) Rules 2020 and to always consider the eligibility of the Petitioners for appointment to the post of Presiding officers till they attain the age of 70 years.

e. For issuance of any other relief/s for which the Petitioner is entitled in the eye of law and in the facts and circumstances of the case."

2. Petitioners lay challenge to the provisions of the

Bihar State Teaching Institutions Teachers and Employees

(Disputes Redressal and Appeal) Rules, 2020. The relevant

clause, in toto, is reproduced as under:- Patna High Court CWJC No.7119 of 2021 dt.01-12-2021

"Qualification for nomination/appointment as Presiding Officer/Chairman:-

(i) A person shall not be qualified for nomination/appointment to the post of Presiding Officer of the District Appellate Authority unless:- a. He has held the post of District Judge or Additional District Judge, or b. He has remained in the pay scale of level-13 of Bihar Education Service or Bihar Administrative Service."

3. Sub-clause (b) is under challenge.

4. Prior thereto, the State had enacted "fcgkj jkT; fo|

ky; f'k{kd ,oa deZpkjh f'kdk;r fuokj.k fu;ekoyh 2013" [Bihar State

School Teacher and Employee Grievance Redressal Rules,

2013] containing clause 5(kha), which is reproduced herein

under:-

"5([k)fcgkj iz'kklfud lsok vFkok fcgkj f'k{kk lsok ds v/khu oxZ&1 ds in ij de&ls&de nks o"kZ u jgk gks]"

Translated version

[Has not worked for at least two years on a Group-1 post under the Bihar Administrative Service or Bihar Education Service.]

5. The said rules were subsequently amended vide

notification dated 13th of May, 2015 with yet another enactment,

namely, "fcgkj jkT; fo|ky; f'k{kd ,oa deZpkjh&f'kdk;r fuokj.k Patna High Court CWJC No.7119 of 2021 dt.01-12-2021

fu;ekoyh] 2015" [Bihar State School Teacher and Employee

Grievance Redressal Rules, 2015] wherein the eligibility criteria

for selection for appointment as Presiding Officer/Chairman to

the District Appellate Authority was prescribed as under:-

"5([k)fcgkj iz'kklfud lsok vFkok fcgkj f'k{kk lsok ds v/khu lewg&'d' ds in ij de&ls&de nks o"kZ jgk gks"

Translated version

[5(b) Has worked for at least two years on a Group 'A' post under the Bihar Administrative Service or Bihar Education Service.]

6. The amendment which reads as "He has remained in

the pay scale of level-13 of Bihar Education Service or Bihar

Administrative Service." is challenged, inter alia, on the

following grounds:-

(a) That it reduces the chances of

promotion, selection and appointment of the

petitioners;

(b) The Rules are violative of Article 14 of

the Constitution of India, and stand enacted only

to oust the petitioners.

(c) The Rules were brought in with a

malafide intention.

7. Having heard learned counsel for the parties, we are of Patna High Court CWJC No.7119 of 2021 dt.01-12-2021

the considered view that on all counts, the petition needs to be

rejected.

8. Before us, there is no challenge with regard to the

legislative competence of the State to enact and notify the rules.

9. There is always a presumption of constitutionality of

legislation/rules, and the onus to establish the rules being

violative of Constitution; parent Statute is always upon the

petitioners.

10. It is a well settled proposition of law that the Courts

should refrain from interfering with the legislation, unless of

course, the petitioners make out a case for interference,

highlighting the arbitrariness, manifest at that or repugnance to

the Constitution/Statute.

11. The classification, in our considered view, has a

reasonable nexus with the object sought to be achieved. The

new enactment enables all officers having a pay-scale of Level-

13 of either the Bihar Education Service or the Bihar

Administrative Service to man the adjudicatory Tribunal, which

in the instant case, is a Tribunal for adjudicating the disputes in

relation to the teachers employed by the State Government in

several institutions. The criteria for fixing the pay-scale, higher

one at that, is based on the object of enabling senior level Patna High Court CWJC No.7119 of 2021 dt.01-12-2021

officers to man the Tribunals. The classification is also based on

the person having sufficient and reasonable experience, for the

persons entitled for the requisite pay-scale of Level-13 would

have rendered sufficient service in their respective streams. This

classification, as we find, is reasonable, totally permissible in

law and by no means arbitrary.

12. There cannot be any malice in bringing the

legislation. Submission that the rules stand enacted only to oust

the petitioners is not only unsubstantiated on facts, for absence

of any statutory right of promotion, but also legally

unsustainable, for it is the prerogative of the State/legislature to

bring in an enactment laying down conditions best suited for

manning the Tribunals.

13. In P.S.N. Rao v. State of Orissa and others, (2002) 6

SCC 478, (para-8), the Hon'ble Apex Court held that it cannot

be disputed that the State Government had the power to

prescribe proper qualification for the post keeping in the job

requirement, nature of work to be handled by the holder of the

post and other relevant factors.

14. Simply because the petitioners stand ousted, from the

zone of consideration that cannot be a reason to challenge the

statute, more so, in view of lack of existence of any right for Patna High Court CWJC No.7119 of 2021 dt.01-12-2021

promotion to the post in question.

15. In High Court of Gujarat and another v. Gujarat

Kishan Mazdoor Panchayat and others, (2003) 4 SCC 712,

the Hon'ble Apex Court held that if the legislature intended to

lay down different qualifications or eligibility criteria for

President and Members, it would have expressly stated so.

16. In the instant case, the intention of the Legislature is

clear and, therefore, such rules as laid down must be followed.

17. We notice that the rules contain Clause 25 (iv), which

reads as under:-

"25(iv) The Presiding Officer/Chairman appointed prior to repealing of these Rules shall be deemed to have been appointed under these Rules, as if these Rules were prevalent at that point of time. Besides, the work done or any action taken in exercise of powers conferred by the said Rules shall be deemed to be done or action taken in these Rules, as if these Rules were prevalent at that point of time."

18. Hence, such of those persons who stood appointed

and continue to officiate, their service tenure is adequately

protected under the Rules.

19. It is brought to our notice that the advertisement

issued pursuant to the impugned enactment is subject matter of Patna High Court CWJC No.7119 of 2021 dt.01-12-2021

challenge in C.W.J.C. No. 22446 of 2019, titled as Chandrama

Singh & Ors. Vs. The State of Bihar & Ors. Well, we are not

expressing any opinion on the issues raised therein, for the

matter before us is limited only to the constitutional validity of

the enactment.

20. For all the aforesaid reasons, we dismiss the present

petition.

21. Interlocutory Application(s), if any, stands disposed

of.

(Sanjay Karol, CJ)

(S. Kumar, J)

P.K.P./-

AFR/NAFR
CAV DATE
Uploading Date         06.12.2021
Transmission Date