Abhishek Kumar Aman vs The State Of Bihar
2023 Latest Caselaw 775 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.17667 of 2021
     ======================================================

1. Abhishek Kumar Aman, S/o- Sri Prem Chand Chaudhari, R/o- Village-

Mamka, P.S.- Phesar, District- Aurangabad.

2. Indu Devi, W/o Sri Kamlesh Rajak, R/o- Village- Bakan, P.S.- Phesar, District- Aurangabad.

3. Rinku Devi, W/o- Sri Nagendra Rajak, R/o- Village- Bakan, P.S.- Phesar, District- Aurangabad.

4. Vishwanath Bhuiya, S/o- Sri Swaroop Bhuiya, R/o- Village- Dhanhara, P.S.-

Jamhor, District- Aurangabad.

5. Awadhesh Chaudhary, S/o- Sri Chanarik Chaudhary, R/o- Village- Mamaka, P.S.- Phesar, District- Aurangabad.

6. Kumari Usha, W/o- Sri Surandra Rajak, R/o- Village- Kadokhari, P.S.-

Rishiup, District- Aurangabad.

7. Lalkeshwari Devi, W/o Sri Satish Rajbanshi, R/o- Village- Rajabigha, P.S.-

Jamhor, District- Aurangabad.

8. Kusum Kumari, W/o Sri Sanjay Kumar Chaudhary, R/o- Village- Dudhar, P.S.- Rishiup, District- Aurangabad.

9. Satyendra Chaudhary, S/o- Sri Dashrath Chaudhary, R/o- Village- Bahuria Bigha, P.S.- Barun, District- Aurangabad.

10. Jag Mohan Chaudhary, S/o- Late Tiwari Chaudhary, R/o- Village- Kapsia, P.S.- Aurangabad, Muffasil, District- Aurangabad.

11. Satyendra Kumar, S/o- Late Maheshwar Ram, R/o- Village- Kosdihara, P.S.-

Jamhor, District- Aurangabad.

12. Bhola Chaudhary, S/o- Sri Ramgahan Chaudhary, R/o- Village- Bind Bigha, P.S.- Obera, District- Aurangabad.

13. Pramila Devi, W/o- Shri Akhilesh Kumar, R/o- Vill.- Rajapur, P.S.- Goh, District- Aurangabad.

... ... Petitioner/s Versus

1. The State of Bihar Through the Principal Secretary, Education Department, Government of Bihar, Patna.

2. The Joint Secretary Education Department, Government of Bihar, Patna.

3. The Additional Secretary Education Department, Government of Bihar, Patna.

4. The Director Jan Shiksha Bihar, Patna.

5. The Assistant Director Jan Shiksha.

6. The District Magistrate Aurangabad.

7. The District Education Officer District- Aurangabad. Patna High Court CWJC No.17667 of 2021 dt.15-02-2023

8. The District Programme Officer, (estt.) District- Aurangabad.

9. The District Programme Officer, Shakshtra, Aurangabad.

10. The Block Development Officer Aurangabad, District- Aurangabad.

11. The Block Education Officer Aurangabad, District- Aurangabad.

12. The Block Development Officer Barun, District- Aurangabad.

13. The Block Education Officer Barun, District- Aurangabad.

14. The Block Development Officer Obra, District- Aurangabad.

15. The Block Education Officer Obra, District- Aurangabad.

16. The Block Development Officer Goh, District- Aurangabad.

17. The Block Education Officer Goh, District- Aurangabad.

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

For the Petitioner/s : Mr.Rajeev Kumar Singh, Advocate For the Respondent/s : Mr.Subash Chandra Mishra ( SC16 ) Mr. Madhukar Mishra, AC to SC16 ====================================================== CORAM: HONOURABLE MR. JUSTICE SANJEEV PRAKASH SHARMA ORAL JUDGMENT Date : 15-02-2023

The petitioners have preferred this writ petition

seeking to quash the order dated 15.06.2021 issued by the

District Programme Officer declaring the appointment of the

petitioner illegal on the premise that they had acquired the

qualification of Madhyama from Bihar Sanskrit Education

Board which is equivalent to matriculation but as they were

appointed prior to 2012, they cannot be allowed to continue on

the post. The petitioners also pray for the quashing of the

consequential orders passed on the 26th of July, 2021, and 6th of

September, 2021 whereby the petitioners have been removed

from the post which they were held continuously from 2009. Patna High Court CWJC No.17667 of 2021 dt.15-02-2023

2. Learned counsel for the petitioners submits that the

qualification of Madhyama from Bihar Sanskrit Education

Board is equivalent to that of matriculation. Beyond the records,

the state authorities issued an order in 2012, directing the

various District Programme Officers to treat the qualification as

equal to appoint persons on the post of Tola Sewak. Those who

had acquired qualifications prior to 2012 and were appointed as

Tola Sewak cannot be said to have been illegally appointed and

they cannot be distinguished or discriminated from the

candidates who have been appointed after 2012 based on the

same qualification.

3. Learned counsel submits that the interpretation

taken by the respondent is wholly erroneous as so far as the

question of Madhyama being equivalent to that of matriculation

was never in dispute even prior to 2012. The petitioners had

presented themselves for appointment based on their

qualification of Madhyama. They had been appointed from 2009

and were continued as Tola Sewak. The post of Tola Sewak has

been made as a substantive post and the persons are being

allowed to perform their duties up to the date of attaining

superannuation as provided in the Bihar Service Code, i.e. age

of 60, cannot be treated different from others who were Patna High Court CWJC No.17667 of 2021 dt.15-02-2023

appointed under the same scheme and are continuing.

4. Per contra, learned counsel appearing for the

respondent submits that as per the letter dated 17.09.2020,

issued by the Director, Mass Education, it has been laid down

that the Tola Sewaks/Shiksha Sewaks were selected by the Bihar

Education Project Council before 2012 on basis of qualification

of Madhyama from Bihar Sanskrit Education Board shall not be

treated as recognized. On the basis of such direction impugned

orders were passed. It is submitted that the stand taken by the

Director is based on the order dated 23.12.2013 whereby by

amendment of educational qualifications words "matric or

equivalent qualification" were added. Since the equivalent

qualifications were added only after 2013, those appointments

made prior to 2013, on the basis of equivalent qualification,

would be wrongful and they have to be removed.

5. Having considered the submissions above, this

Court finds that prior to 26.01.2013, the Akshar Anchal scheme

was being regulated by the Bihar Education Project Council.

The said scheme was taken over by the Mass Education

Department of the Government of Bihar after 26th of January,

2013. The appointment of Tola Sewak under Akshar Anchal

scheme was conducted prior to 2013 by the Bihar Education Patna High Court CWJC No.17667 of 2021 dt.15-02-2023

Project Council. The minimum qualification required is that the

candidate must be matric or a higher qualification. The

petitioners had passed Madhyama from Bihar Sanskrit

Education Board and were appointed in 2009 and, thereafter,

their selection was made on the basis of the qualification of

Madhyama which was treated as equal to matriculate by the

appointing authorities. Although, there was no such clarification

issued in the scheme but the fact remains that the qualification

acquired by the petitioners has been treated equal to that of

matriculation. Further clarification with regard to the question

of equivalence was made by the Director vide his letter dated

23.12.2013.

6. The question arises whether a person who has been

selected prior to issuance of those clarifications can be said to

have been illegally appointed if he was Madhyama qualified and

not matric as interpreted by the respondents.

7. In the opinion of this Court, any person who is

matric or equivalent is entitled to participate in the selection

process where the minimum qualification required is matric.

Equivalence is not required to be made specifically for the

purpose. It is an admitted position that the qualification of

Madhyama has been acquired from the Bihar Sanskrit Education Patna High Court CWJC No.17667 of 2021 dt.15-02-2023

Board which is governed by the rules and regulations laid down

by the Government of Bihar. A person having acquired the said

qualification therefore cannot be deprived of participating in a

selection process where the minimum qualification required is

matric. It appears that there may have been some confusion and

some persons may have been denied participation on the ground

of their having equivalent qualifications to matric and, therefore,

the clarification was issued by the then Director on 23.12.2013.

However, it would not in any manner mean that those who were

appointed prior to 2013, on the basis of qualification of

Madhyama, would be treated as unqualified for the purpose of

continuing in employment. There was no occasion to remove

such Tola Sewaks.

8. Although this Court notices that after 2013, Tola

Sewaks possessing the qualification of Madhyama have been

appointed, discrimination cannot be drawn between such Tola

Sewaks possessing Madhyama qualification and appointed after

2012 and those Tola Sewaks like the petitioners who were

appointed prior to 2012 based on the same qualification. The

very candidates, who possessed the same qualification, in the

same year, may be appointed in different years, namely, some

may have been appointed in 2009, 2010, and 2011 and some Patna High Court CWJC No.17667 of 2021 dt.15-02-2023

may have been appointed in 2012, 2013, and onwards. No

distinction can be drawn amongst them. The action of the

respondents is, thus, in volition of Article 14 of the Constitution

of India. The interpretation taken by the Director vide his letter

dated 17.09.2020 and implemented by the respondents vide their

orders impugned dated 15th June 2021 and subsequent orders

dated 26th July 2021 and 6.9.2021, therefore, stands vitiated in

law.

9. Accordingly, the orders passed by the respondents

dated 15th June 2021, 26th of July, 2021 and 06th of September,

2021 based on the letter dated 17.09.2020 issued by the Director

are quashed and set aside without consequential benefits.

10. The petitioners shall be restored to the original

place of posting with all consequential benefits. The

implementation shall be done within three months.

11. Writ petition is allowed. No costs.

(Sanjeev Prakash Sharma, J) Ashwini/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          20.02.2023
Transmission Date       NA