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Judgment
(Per: HONOURABLE MR. JUSTICE SOURENDRA PANDEY)
The present appeal has been preferred against the Order dated 15.09.2023, passed by a single judge of this Hon’ble Court in C.W.J.C. No. 4377 of 2023, whereby it has been observed that the writ petitioners’ earlier selection was made without there being a sanctioned post and their selection was done by authorities who were not empowered to do so but the writ petitioners were assured to be given priority if vacancies arise in future, nonetheless, the learned Single Judge while restraining to comment on the kind of assurance given by the respondents, has held that the claim for adjustment/ absorption of the writ petitioners on 82 posts has rightly been rejected.
The brief facts of the case are that the State government started a scheme of appointment of Tola Sewak/ Jan Shiksha Swayam Sewak/ Talim Markaj whose role was to facilitate and make members of Mahadalits, dalits and minority backwards classes literate and educated. The District Programme Officer Literacy, East Champaran gave vacancy in different blocks of East Champaran district against which appellants were selected in 2014 and 2015 and had started working. However, vide Memo dated 22.04.2016, the respondent cancelled the appointment on the ground that their appointment was made in excess of vacancies. This Hon’ble Court by an order dated 17.05.2017 passed in C.W.J.C. No. 10534 of 2016 directed the Principal Secretary, Education Department to fill up 49 admitted vacant posts bearing in mind that the writ petitioners have gained experience. Thereafter, upon their non-consideration, the writ petitioners had filed yet another writ petition bearing C.W.J.C. No. 22061 of 2018, however the same was disposed of as withdrawn in the following terms :-
"The learned counsel for the petitioners seeks to withdraw the present writ petition inasmuch as though the claim of the petitioners for their adjustment on the post of Tola Sevak has been rejected, however, as per the recent development, the Director, Mass Education, Bihar, Patna vide letter No. 80 dated 17.01.2019 has submitted that there are 85 vacancies in the District of East Champaran, hence, steps can be taken for adjustment of the Tola Sevak, like the petitioners.
Having regard to the aforesaid submission, the present writ petition stands disposed of as withdrawn."
The writ petitioners had then filed a contempt petition being M.J.C. No. 1514 of 2021, however the same was disposed of as not pressed by an order dated 27.04.2022. Thereafter, the Joint Secretary, Mass Education, Bihar ordered rejection of adjustment of appellants as Tola Sevak on 17.10.2022, as they have been appointed on non-sanctioned posts and without order of competent authority.
It has been submitted by the learned Counsel for the writ petitioners-appellants that earlier order to consider the adjustment on vacant 82 posts has not been considered. It has also been submitted that earlier appellants-petitioners were appointed under Guideline 2009 and thereafter, Guideline 2018 came with changes, after which the appellants could not be adjusted even after giving preference. It has also been submitted that the appellants have been removed without giving any opportunity of hearing.
It has been submitted by the learned counsel for respondents No. 5 and 6 that out of total 1472 seats of Tola Sevak and Educational volunteers under Akxhar Anchal Yojana in different blocks of the District of East Champaran, there remained 215 posts to be filled up, which were also subsequently filled up, nontheless 113 excess centres were opened by the then DEO, contrary to the norms. It has next been submitted that the Principal Secretary had then directed to terminate the illegal appointment of 113 Tola Sevaks and lodge F.I.R. against persons responsible for issuance of appointment letters to these volunteers in excess centres. It has also been submitted that respondent authorities sent the number of vacant posts to Director, Jan Shiksha for approval and after receiving approval for the same, a work calendar was made for initiation of selection process, which was permitted by Letter No. 2083 dated 06.12.2023. It has lastly been submitted that the impugned order rightly rejects the adjustment/ absorption for the reasons aforesaid.
The appellants-petitioners through Supplementary Affidavit submit that 71 posts of Tola Sevak were vacant in East Champaran and despite the Additional Chief Secretary, Education Department on 05.07.2019 directing District Magistrates to fill up these posts, the same have not been filled.
The respondent authorities have filed Supplementary Counter Affidavit and it is submitted that pursuant to order of Add. Chief Secretary, the appointment has begun where 33 Tola Sevaks and Talimi Markaj have already been appointed and soon after approval, the remaining vacancy would be filled. It has next been submitted that vide letter dated 02.09.2023, the respondent amended the number of vacancies due to some error and after amendment, sent the number of vacant post of 86 Tola Sevak and 46 Talimi Markaj, while keeping 4 posts reserved (2 Talimi Markaj of General Category and 2 posts relating to matter pending before Court/ Tribunal), which has been approved by the Dy. Director, Jan Shiksha. (Annexures- R5/6 and R5/7).
It has next been submitted that appellants were illegally appointed on 113 excess centres which were ordered to be terminated and regarding the total number of 136 sanctioned posts, it has been submitted that appointment has already started and appointees have already joined their respective place of posting. It has thus been submitted that the impugned order warrants no interference in light of facts of this case.
At this juncture, the learned Counsel for the State has also submitted that a Coordinate Bench of this Court vide judgment dated 01.03.2021, passed in L.P.A. No. 630 of 2019, which has in turn been passed by relying upon a judgment delivered earlier on 02.02.2017 in L.P.A. No. 2185 of 2015, has held that since the selection or engagement or hiring of the Tola Sevaks is not a permanent appointment under the State, muchless a public appointment, apart from the post of Tola Sevak being under a scheme, the same does not create statutory right in anyone, hence writ petition in such matters as that of Tola Sevaks are not maintainable.
It would be apposite to reproduce the relevant paragraph of the said judgment dated 01.03.2021, passed in L.P.A. No. 630 of 2019 ( Raj Choudhary vs. The State of Bihar & Ors.) herein below:-
"Learned Single Judge has dismissed the writ petition as not maintainable as the issue regarding maintainability of writ petition stands decided by Division Bench of this Court in judgment and order dated 02.02.2017 passed in L.P.A. No. 2185 of 2025.
The relevant paragraph of order passed by learned Single Judge is re-produced below :-
The learned counsel for the respondents has raised a preliminary objection regarding maintainability of the present writ petition and has referred to a judgment dated 17.08.2015 passed by a co-ordinate Bench of this Court in CWJC No. 12390 of 2015 as well as to a judgment dated 02.02.2017 rendered by the learned Division Bench of this Court in L.P.Α. No. 2185 of 2015 whereby and whereunder it has been held that since the selection or engagement or hiring of the Tola Sevak is not a permanent appointment under the State, which is required to be considered under Article 226 of the Constitution of India as well as since the post of Tola Sevak is under a scheme, the same does not create any statutory right in favour of the petitioner, hence writ petitions in such matters as that of Tola Sevaks are not maintainable. Having regard to the aforesaid judgments rendered by a coordinate Bench of this Court as also by the learned Division Bench of this Court, this Court is of the opinion that the present writ petition is not maintainable, hence the same is dismissed. However, liberty is granted to the petitioner to take recourse to such other remedies as are available under the law.
This Court does not find any infirmity or error in the order passed by the learned Single Judge requiring any interference by the Court, accordingly, the L.P.A. is dismissed."
Having heard the learned counsel for the parties and on perusal of the records, which would otherwise be uncalled for, we, concurring with the judgment of the coordinate bench, hold that the post of Tola Sewaks is an engagement under a scheme and thus is not a public post amenable to writ jurisdiction.
In our view the writ petition itself was/ if not maintainable but since the learned Single Judge has entered into the merits of the case while deciding the writ petition, we hold that even on merits, the same deserves to be dismissed on the ground that the selection of the appellants-writ petitioners made earlier were without there being availability of a sanctioned post and even the selection was done by authorities who were not empowered to do so, hence, these dual grounds make the case of the appellants unsustainable even on merits apart from the writ petition being non maintainable.
Having regard to the facts and circumstances of the case and for the foregoing reasons, we do not find infirmity in the impugned order dated 15.09.2023, passed in C.W.J.C. No. 4377 of 2023, hence the present Letters Patent Appeal stands dismissed.