Patna High Court
Guddu Kumar vs The State Of Bihar on 4 February, 2025
Author: Purnendu Singh
Bench: Purnendu Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.3935 of 2020
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1. Guddu Kumar S/o Ganesh Chaudhary R/o Village and Post Basauli, P.S.
Kurhani, District- Muzaffarpur.
2. Arun Kumar S/o Bhola Baitha R/o Village- Chak Mehshi, P.O.
Purushottampur, P.S. Maniyari, District- Muzaffarpur.
3. Anil Kumar Rajak S/o- Suraj Rajak R/o- Village and Post- Chhajan
Harishankar, PS- Kurhani, District- Muzaffarpur.
4. Moni Kumari W/o- Bablu Chaudhary R/o Village- Dubiyahi, PO- Chhajan
Harishankar, PS- Kurhani, District- Muzaffarpur.
5. Shani Kumar Baitha S/o- Jira Lal Baitha R/o- Village and P.O.- Basauli, PS-
Kurhani, District- Muzaffarpur.
6. Vinod Chaudhary S/o- Nathuni Rajak R/o- Village- Bangra Banshidhar, P.O
and PS- Kurhani, District- Muzaffarpur.
7. Chunchun Manjhi W/o- Nageshwar Manjhi R/o- Village- Gausi Bhagirath,
P.O and PS- Kurhani, District- Muzaffarpur.
8. Shakuntala Kumari W/o- Pinku Kumar R/o- Village- Kharauna, P.O-
Kharauna, PS- Kurhani, District- Muzaffarpur.
9. Anil Kumar S/o- Asharfi Chaudhary R/o- Village- Godni, P.O.- Sonebarsa,
PS- Maniyari, District- Muzaffarpur.
10. Renu Kumari W/o- Naresh Rajak R/o- Village- Barkurwa, P.O.- Tukri, PS-
Kurhani, District- Muzaffarpur.
11. Jitendra Kumar Rajak S/o- Dukhit Rajak R/o- Village- Chhajan Gonu, P.O-
Chhajan Harishankar, PS- Kurhani, District- Muzaffarpur.
12. Nitu Kumari W/o- Ravindra Kumar R/o- Village and Post- Kishunpur
Madhuban, PS- Kurhani, District- Muzaffarpur.
13. Lakshmi Kumari W/o- Rajendra Rajak R/o- Village- Chhajan Sangram,
P.O.- Chhajan Harishankar, PS- Kurhani, District- Muzaffarpur.
14. Munchun Kumari W/o- Gauri Shankar Chaudhary R/o- Village and Post-
Ladaura, PS- Kurhani, District- Muzaffarpur.
... ... Petitioner/s
Versus
1. The State of Bihar through its Chief Secretary, Government of Bihar, Old
Secretariat, Patna.
2. The Additional Chief Secretary, Department of Education, Government of
Bihar, Patna.
3. The Principal Secretary, Department of Education, Government of Bihar,
Patna.
4. The Directorate of Public Education through its Director, Department of
Education, Government of Bihar, Patna.
5. The Director, Directorate of Public Education, Department of Education,
Government of Bihar, Patna.
Patna High Court CWJC No.3935 of 2020 dt.04-02-2025
2/8
6. The Director, Primary Education, Government of Bihar, Patna.
7. The State Programme Officer, Bihar Education Project Council, Shiksha
Bhawan, Patna.
8. The Programme Officer, Bihar Education Project Council, 5/5 Anandpuri
West Boring Canal Road, Patna
9. The District Magistrate, Muzaffarpur.
10. The District Education Officer, Muzaffarpur.
11. The District Programme Officer, Establishment, Muzaffarpur.
12. The Block Development Officer, Block- Kurhani, District- Muzaffarpur.
13. The Block Education Officer, Block- Kurhani, District- Muzaffarpur.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Amit Narayan, Advocate.
Ms. Nirmala Kumari, Advocate.
For the Respondent/s : Smt. Abhanjali, AC to GA-12.
For BEPC : Mr. Girijish Kumar, Advocate.
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CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
Date : 04-02-2025
Heard Mr. Amit Narayan, learned counsel along
with Ms. Nirmala Kumari, learned counsel appearing on behalf
of the petitioners; Smt. Abhanjali, learned AC to GA-12 for the
State and Mr. Girijish Kumar, learned counsel for the Bihar
Education Project Council.
2. The petitioners in paragraph no. 1 of the present
writ petition have sought, inter alia, following relief(s), which is
reproduced hereinafter:-
"i. For quashing Memo No. 1570 Patna dated
23.07.2018
(Annexure 6) carrying Guidelines, 2018 for
Selection of Tola Sevak & Shiksha Swayamsevi / Shiksha
Sevak, issued under signature of Principal Secretary,
Department of Education, Bihar as same is unconstitutional
and in violation to Articles 14, 15, 16 and 21 of the
Constitution of India;
ii. For quashing Memo No. 1566 Patna dated
Patna High Court CWJC No.3935 of 2020 dt.04-02-2025
05.07.2019 (Annexure 7) issued under signature of
Additional Chief Secretary, Department of Education, Bihar
directed other respondents to fill vacancies of Shiksha
Sevak /Shiksha Sevak (Talimi Markaz) in accordance with
aforesaid Guidelines, 2018 i.e., Memo No. 1570 Patna
dated 23.07.2018;
iii. For quashing & prohibiting employment,
selection, appointment etc made through any advertisement
or other wise of Tola Sevak & Shiksha Swayamsevi /
Shiksha Sevak in relation to aforesaid Memo No. 1570
Patna dated 23.07.2018 and/or Memo No. 1566 Patna
dated 05.07.2019;
iv. For directing respondents to complete
recruitment of petitioner which includes their training,
appointment, posting and allotment of work on the post of
Tola Sevak or equivalent for which they have already been
selected by the respondent;
v. For any other relief or reliefs to which the
petitioners may be deemed entitled, may be granted to
them."
3. Learned counsel appearing on behalf of the
petitioners submitted that the petitioners were selected from
time to time in accordance with 2009 guidelines and thereafter
fresh guidelines came into effect in year 2018 w.e.f. 23.07.2018.
The petitioners were selected, but in spite of the vacancies, they
were not sent for training in accordance with 2009 guidelines
and then in accordance with 2018 guidelines, only working Tola
Sewak were continued as per clause 12 of the 2018 guidelines,
which has been issued vide Memo No. 1570 dated 23.07.2018.
Learned counsel submitted that similar relief was subject matter
in C.W.J.C. No. 11447 of 2018. Learned counsel has claimed
that the case of the petitioners is somewhat similar to that of
Taleemi Markaz. The petitioners are also Mahadalit and their
Patna High Court CWJC No.3935 of 2020 dt.04-02-2025
case is required to be considered for being appointed as Tola
Sevak in accordance with the scheme to perform the social work
by inspiring people from Mahadalit communities to render
proper education to the children and illiterate adult women for
bringing social change in the society. Learned counsel submitted
that the main role of Tola Sevak or the Shiksha Swayamsevi is
to function as motivator and facilitator.
4. Learned counsel further informs that the
petitioners have earlier filed C.W.J.C. No. 16033 of 2018 for
consideration of their grievance as raised in the present writ
petition. The said writ petition was heard on 05.02.2019 and this
Court had directed the petitioners to file representation before
the State Programme Officer, Bihar Education Project Council,
who was directed to dispose of the representation of the
petitioners within a period of twelve weeks from the date of
representation. The State Programme Officer has illegally
rejected the representation on the ground that in light of the
Letter No. 2600 dated 09.04.2013 only those Tola Sevak were to
be considered who were selected and working w.e.f. 10.10.2012
and in this regard public notice was also issued. Learned
counsel further submitted that Taleemi Markaz also performs the
similar function in respect of minorities who were selected and
Patna High Court CWJC No.3935 of 2020 dt.04-02-2025
not working. He submits that the case of the petitioners being
similar, they are also entitled for similar relief of getting
appointed from the date of their selection as granted by the co-
ordinate Bench of this Court in C.W.J.C. No. 11447 of 2018
vide judgment and order dated 27.07.2022.
5. Per contra, learned counsel appearing on behalf
of the State submitted that from the order dated 27.07.2022
passed in C.W.J.C. No. 11447 of 2018, it appears that the
petitioners of the said writ petitions were volunteer teachers,
who were appointed in 2009 and their claim is related to
absorption as a teacher, in that background, a co-ordinate Bench
of this Court issued direction to reinstate with continuity in
service and they would be also entitled to payment of their
salary. In the present case, admittedly the petitioners were
selected, but they were never appointed. Hence the case of the
present petitioners cannot be said to be identical with the writ
petitioners of C.W.J.C. No. 11447 of 2018. Learned counsel
further submitted that considering the nature of work performed
by the Tola Sevak, a co-ordinate Bench of this Court in C.W.J.C.
No. 12390 of 2015 held the said writ petition not maintainable
under Article 226 of the Constitution of India and the aggrieved
parties have filed L.P.A. No. 2185 of 2015 which has been
Patna High Court CWJC No.3935 of 2020 dt.04-02-2025
dismissed by the Division Bench holding that the selection or
engagement or hiring of the Toal Sevak is not a permanent
appointment under the State, which is required to be considered
under Article 226 of the Constitution of India. Learned counsel
in these background submitted that the writ petition deserves no
merit and same is required to be dismissed.
6. Heard the parties.
7. Having considered the rival submissions made
on behalf of the parties, as well as, having gone through the
records of the case and the pleadings made in the writ petition
and the counter affidavit filed on behalf of the respondents, I,
prima facie, find that Tola Sevak voluntarily undertakes to work
as a facilitator and in this regard guidelines were issued in the
year 2009 and following the same the petitioners were selected
but found not working. Subsequently 2018 guidelines came into
effect clarifying that those who were appointed after selection
and are working, they can only be considered to be engaged.
The very engagement as a Tola Sevak is to facilitate education
to Mahadalit of any community voluntarily and the guidelines
issued in this regard cannot be said to have been issued under
Article 309 of the Constitution of India being binding on the
State Government. The Division Bench in L.P.A. No. 2185 of
Patna High Court CWJC No.3935 of 2020 dt.04-02-2025
2015 has clearly found that the selection or engagement or
hiring of the Toal Sevak is not a permanent appointment under
the State, which is required to be considered under Article 226
of the Constitution of India. Recently the Apex Court in the case
of St. Mary's Education Society Vs. Rajendra Prasad
Bhargava, reported in (2023) 4 SCC 498, has laid down the
exceptions as under:
"An application under Article 226 of the
Constitution is maintainable against a person or a
body discharging public duties or public functions.
Individual wrongs or breach of mutual contracts
without having any public element cannot be
rectified through a writ petition under Article 226.
Wherever Courts have intervened in their exercise of
jurisdiction under Article 226, either the service
conditions were regulated by the statutory
provisions or the employer had the status of "State"
within the expansive definition under Article 12 or it
was found that the action complained of has public
law element. In the absence of the service conditions
being controlled or governed by statutory
provisions, the matter would remain in the realm of
an ordinary contract of service."
(emphasis
supplied)
8. The present petitioners have not been able to
make out a case as to whether the case of the petitioners comes
under any exception as laid down by the Apex Court recently.
The writ petition don't deserve any merit. The writ petition
stands dismissed.
9. It is, however, made clear that the contention of the
petitioners that case of the petitioners is similar to that of
Patna High Court CWJC No.3935 of 2020 dt.04-02-2025
petitioners of C.W.J.C. No. 11447 of 2018 is also misconceived.
In the said writ petition, it has been rightly pointed out by the
State Government that the Shikshak Swayamsevaks Taleemi
Markaz after their selection were appointed and they were
working and in that background this Court had directed to give
the benefit of notional salary following the principle of 'no work
no pay'. The facts of the present case is entirely different. Here
the petitioners though were selected as claimed by the
petitioners, but it is admitted that they were not working.
(Purnendu Singh, J)
Mantreshwar/-
AFR/NAFR NAFR
CAV DATE N.A.
Uploading Date 13.02.2025
Transmission Date N.A.
