Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3645 of 2012 ====================================================== 1. Sunita Kumari W/O Late Prakash Rajak R/O Village- Mananpur Bazar, P.S.- Chanan, District- Lakhisarai 2. Lalita Kumari W/O Arun Kumar R/O Village- Sherpur, P.S.- Mufassil, District- Munger Versus .... .... Petitioners 1. The State Of Bihar 2. The Principal Secretary Human Resources Development Department, Bihar, Patna 3. The Member District Teachers Employment Appellate Tribunal, Lakhisarai 4. The District Magistrate, Lakhisarai 5. The District Education Officer, Lakhisarai 6. The District Programme Officer (Establishment), Lakhisarai 7. The Block Development Officer Chanan Block, P.S.- Chanan, District- Lakhisarai 8. The Block Education Officer Chanan Block, P.S.- Chanan, District- Lakhisarai 9. The Panchayat Secretary Gram Panchayat Itaun, P.S.- Chanan, District- Lakhisarai 10. The Mukhia, Gram Panchayat Itaun, P.S.- Kchanan, District- Lakhisarai 11. Saurabh Kumar S/O Satya Narayan Ram R/O Village- Tahadiya, P.O.- Dumari, P.S.- Barahiya, District- Lakhisarai 12. Sarojani Kumari W/O Rajendra Prasad R/O Village-Laxmipur, P.O.- Kabadpur, P.S.- Suryagarha, District- Lakhisarai 13. Ganesh Rajak S/O Bishundeo Rajak R/O Village- Mananpur Basti, P.S.- Chanan, District- Lakhisarai .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.2226 of 2012 ====================================================== 1. Mukeshwar Yadav S/O Sri Banwari Yadav Panchayat Teacher, Primary School Rampur Tarh, Gram Panchayat Itaun, Block-Chanan, District- Lakhisarai 2. Arbind Kumar S/O Late Tuklal Prasad Yadav Panchayat Teacher, Prathmik Vidyalaya Rampur, Gram Panchayat Itaun, Block-Chanan, District-Lakhisarai 3. Kiran Kumari D/O Kamleshwari Paswan Panchayat Teacher Harijan Tola, Gram Panchayat Itaun, Block-Chanan, District-Lakhisarai Versus .... .... Petitioners 1. The State Of Bihar 2. The Principal Secretary, Human Resources Development Department, Govt. Of Bihar, Patna 3. The Director, Primary School, Human Resources Development Department, Govt. Of Bihar, Patna 4. The District Teacher Employment Appellate Authority, District- Lakhisarai Through Its Chairman Patna High Court CWJC No.3645 of 2012 (7) dt.18-11-2013 2 5. The Member, Teacher Employment Appellate Authority, District- Lakhisarai 6. The District Superintendent Of Education, Lakhisarai 7. The Block Development Officer, Block Chanan, District-Lakhisarai 8. The Block Education Extension Officer, Block Chanan, District- Lakhisarai 9. The Mukhiya, Gram Panchayat Raj, Itaun, Block-Chanan, District- Lakhisarai 10. The Panchayat Secretary, Gram Panchayat Raj, Itaun, Block-Chanan, District-Lakhisarai 11. Saurabh Kumar S/O Satyanarayan Ram R/O Village-Tahadia, P.O.- Dumari, Dist.-Lakhisarai 12. Sarojiani Kumar D/O Sri Rajendra Prasad R/O Vill.-Laxmipur, P.O.- Kawadpur, Dist.-Lakhisarai 13. Ganesh Rajak S/O Vishnudeo Rajak R/O Village-Mananpur Basti, Block-Chanan, Dist.-Lakhisarai .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.6137 of 2012 ====================================================== Saurabh Kumar Ram S/O Satya Narayan Ram R/O Village Tahadiya, P.O. Sumri, P.S. Barahaiya, District-Lakhisarai .... .... Petitioner Versus 1. The State Of Bihar Through Principal Secretary, Department Of Human Resources Development Department, Govt. Of Bihar, Patna 2. The Principal Secretary, Department Of Human Resources Development, Govt. Of Bihar, Patna 3. The Director (Primary Education) Department Of Human Resources Development, Govt. Of Bihar, Patna 4. The District Education Officer, Lakhisarai 5. The Block Education Extension Officer, Block Chanan, Lakhisarai 6. The District Teacher Employment Appellate Authority, District- Lakhisarai 7. The Mukhiya, Gram Panchayat Raj Itaun Block Chanan, District- Lakhisarai 8. The Panchayat Secretary, Gram Panchayat Raj Itan, Block Chanan, District-Lakhisarai .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.3928 of 2012 ====================================================== Amrit Yadav Son Of Late Kishun Yadav Resident Of Village-Itahari, P.O.- Bichhabey, P.S.-Chanan, District-Lakhisarai Versus .... .... Petitioner 1. The State Of Bihar 2. The Principal Secretary, Human Resources Development Department, Bihar, Patna 3. The Chairman, District Teachers Employment Appellate Tribunal,
Legal Reasoning
Patna High Court CWJC No.3645 of 2012 (7) dt.18-11-2013 3 Lakhisarai 4. The District Magistrate, Lakhisarai 5. The District Education Officer, Lakhisarai 6. The District Programme Officer (Establishment), Lakhisarai 7. The Block Development Officer, Chanan Block, P.S.-Chanan, District- Lakhisarai 8. The Block Education Officer, Chanan Block, P.S.-Chanan, District- Lakhisarai 9. The Panchayat Secretary, Gram Panchayat Itaun, P.S.-Chanan, District- Lakhisarai 10. The Mukhia, Gram Panchayat Itaun, P.S.-Chanan, District-Lakhisarai 11. Saurabh Kumar Son Of Satya Narayan Ram Resident Of Village- Tahadiya, P.O.-Dumari, P.S.-Barahiya, District-Lakhisarai 12. Sarojani Kumari Wife Of Rajendra Prasad Resident Of Village- Laxmipur, P.O.-Kabadpur, P.S. Suryagarha, District-Lakhisarai 13. Ganesh Rajak Son Of Bishundeo Rajak Resident Of Village-Mananpur Basti, P.S.-Chanan, District-Lakhisarai
Legal Reasoning
.... .... Respondents ====================================================== Appearance : (In CWJC No.3645 of 2012) For the Petitioner/s : Mr. Siya Ram Sahi, Adv. For the Respondent/s : Mr. Rajesh Kumar Sinha, AC to GP21 (In CWJC No.2226 of 2012) For the Petitioner/s : Mr. Rajendra Pd.Singh, Sr.Adv. Mr. Rajeev Kumar Singh, Adv. For the State : Mr. Manoj Kr. Ambasta GP14 For respondent no.11 : Mr. Naresh Dixit, Adv. Mr. Lalan Kumar, Adv. (In CWJC No.6137 of 2012) For the Petitioner/s : Mr. Lalan Kumar, Adv. For the Respondent/s : Mr. Rajesh Kumar GP8 (In CWJC No.3928 of 2012) For the Petitioner/s : Mr. Sanjeev Kumar, Adv. For the Respondent/s : Mr. A.K.Mishra, AC to SC7 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 7 18-11-2013 Heard learned counsel for the parties. In all these four writ applications the order of the District Teachers Employment Appellate Tribunal, Lakhisarai dated 14.12.2011 in Appeal Case No. 20/2010-11 has been assailed primarily on the ground that even when the Tribunal had noticed Patna High Court CWJC No.3645 of 2012 (7) dt.18-11-2013 4 that there was only a limited discrepancy in the two roasters which was under consideration, it ought to have not set aside the entire selection and appointment even of those teachers who were not affected by either of the change in category of roaster. Mr. Rajendra Prasad Singh, learned Senior counsel followed by Mr. Siya Ram Sahi have, therefore, submitted that this Court should modify the operative portion of the order of Tribunal by limiting the selection process confined only in the categories of variance in the two roasters. Learned counsel appearing on behalf of respondent no.11, on the other hand, has submitted that the grievance of respondent no.11 though raised before the Tribunal no longer subsists, inasmuch as he has now decided not to press his complaint against the appointment of the petitioners. Counsel for the State, on the other hand, has submitted that there can be no concession in the matter like this where the mandate of Articles 14 and 16 of the Constitution of India were clearly infringed in the appointment of the petitioners and therefore, withdrawal of the complaint of respondent no.11 Saurabh Kumar, will not in any way affect the merit of the impugned order of the Tribunal which infact is fit to be approved both on fact and in law. Patna High Court CWJC No.3645 of 2012 (7) dt.18-11-2013 5 In the considered opinion of this Court the issue relating to roaster recorded in the impugned order in fact is one of the manifestations of illegalities. Committed in course of appointment of the petitioners. It is true that the Tribunal has examined the whole matter in the backdrop of roaster which was sought to be changed within a period of two days, but the Tribunal has not confined its finding only on the issue of roaster. This would become apparent from the following observations made by the Tribunal in the impugned order: ^^fu;kstu bdkbZ iapk;r jkt bVkSu ds }kjk o"kZ 2008 ds fu;kstu ds fy, 22-10-08 ds jksLVj fcUnq ds vkyksd es a dqy 2263 vkosnu i= fy;s x;s vkSj izkIr vkosnu i= ds vkyksd esa dksbZ lesfdr es/kk lwph ugha cukbZ xbZA fcuk lesfdr es/kk lwph ds gh 10 xq.kk es/kk lwph cuk;k x;k vkSj ml es/kk lwph esa 50 izfr’kr efgyk vH;fFkZ;ksa ds lkFk lkFk 50 izfr’kr iq:"k vH;fFkZ;ksa dks Hkh vkj{k.k nsrs gq, 27-01-09 ,oa 28-02-2009 dks dkmfUlafyax dh izfdz;k nks frfF;ksa ea s iwjh dh xbZA lkFk gh ekuo lalk/ku fodkl foHkkx }kjk izkFkfed ,oa e/; fo|ky;ksa ds fy, tkjh fd;s x;s ekxZ funs’k dh dafMdk 04]06]08 ,oa 10 dk mYy?kau djrs gq, rFkk foHkkx }kjk fu;kstu dh fu/kkZfjr frfFk …iapk;r Lrj ij 13-8-10 ,oa 14-8-10‰ ls gVdj fu;kstu dh izfdz;k iwjh dj yh gS tks iw.kZr% xyr gSa xyr izfdz;k viuk dj fd;k x;k dksbZ Hkh fu;kstu oS/k ugha gks ldrk gSa fdlh Hkh fu;kstu bdkbZ dks ;g vf/kdkj ugha gS fd ekuo lalk/ku fodkl foHkkx }kjk tkjh fu;ekoyh] ekxZ funs’k] vkj{k.k jksLVj ls gVdj rFkk cSd MsV ls fu;sktu dh izfdz;k iwjh djsaA fu;kstu bdkbZ iapk;r jkt bVkSu dks vkns’k fn;k tkrk gS fd lHkh fu;ksftr f’k{kdksa eds’oj ;kno] vjfoUn dqekj] ehuk dqekjh] yfyrk nsoh] lkSjHk dqekj jke] fdj.k dqekjh] lquhrk dqekjh ,oa ve‘r ;kno dks fu;ksftr in ls gVk;s vkSj ekuo lalk/ku fodkl Patna High Court CWJC No.3645 of 2012 (7) dt.18-11-2013 6 foHkkx ls ubZ frfFk izkIr dj rFkk jksLVj dk fu/kkZj.k djkdj fu;kstu izfdz;k fu;ekuqdwy rjhds ls iwjk djsA bl obsernation ds lkFk bl vihy okn dh dkjZokbZ lekIr dh tkrh gSA** It has to be kept in mind that the aforesaid finding of the Tribunal is based on interpretation of Rule 9 of the Bihar Panchayat Teacher Appointment Rules which lays down the stepwise actions to be taken in pursuance of the application received for the post of Panchayat Teacher wherein the first and foremost thing required to be done is preparation of draft merit list. The entire applications received, therefore, have to be processed and those who are found eligible in terms of the Rules have to be included. Their names have to be included in the draft merit list and objections have to be invited from all the concerned as with regard to inclusion or exclusion of their name, whereafter merit list is to be finalized. It is at that stage that depending on the number of vacancies short listing is permissible, inasmuch as it is not necessary to also call each and every candidate for counseling. Therefore, whatever has been done in this case is actually from the stage which was to be taken only after preparation of the merit list. In other words, neither draft merit list nor final merit list after inviting objection was prepared. This by itself led to creation of anomaly as has been noticed by the Tribunal in its detailed finding running into 16 pages. An illustration of the same can be found as Patna High Court CWJC No.3645 of 2012 (7) dt.18-11-2013 7 with regard to the petitioner Lalita Kumari, wherein the Tribunal had held as follows: ^^tgka rd ljkstuh dqekjh dk nkok gS fd muls de es/kk vad okys lfpo ,oa eqf[k;k }kjk yfyrk dqekjh dk ’kS{kf.kd ,oa iz’kS{kf.kd izek.k i= dh Nk;kizfr vfHkizekf.kr dj izLrqr fd;k x;k gS] dk voyksdu fd;kA yfyrk dqekjh us o"kZ 2008 esa izf’k{k.k mRrh.kZ fd;k gS ftl dkj.k budk es/kk vad bUVj vkSj izf’k{k.k ds vad dks tksM+dj rFkk tksM+ dks nks ls Hkkx nsus ij tks izfr’kr gksxk ogh vH;FkhZ dk es/kk vad gksxkA foHkkx ls Hkh Li"V vkns’k gS fd 95 ds ckn mRrh.kZ izf’kf{kr vH;fFkZ;ksa dk es/kk vd baVj ds vad ,oa izf’k{k.k ds vad dks tksM+dj cuk;k tk;A bl izdkj yfyrk dqekjh dk es/kk vad 57-99 tks fu;kstu bdkbZ bVkSu }kjk cuk;k x;k gS lgh ugha gSa budk okLrfod es/kk vad 59-10 fn[kk;k x;k gSa bl izdkj de es/kk vad gksus ds ckotwn Hkh yfyrk dqekj dk fu;kstu bl iapk;r esa dj fy;k x;k tks iw.kZr% xyr gSA** Likewise the Tribunal has again examined the case of Ganesh Rajak and has gone to hold that even for that post year- marked for Scheduled Caste the prescribed procedure of preparation of draft merit list and final merit list was not followed. All these findings, therefore, taken cumulatively into consideration will lead to inescapable position in law that the appointment of the petitioners was made in complete breach of Rule 9 of the Bihar Panchayat Teacher Appointment Rules, 2006. In such a situation this Court will not be in a position to drop the entire matter at the instance of respondent no.11, who having initiated a proceeding before the Tribunal has now sought Patna High Court CWJC No.3645 of 2012 (7) dt.18-11-2013 8 to take a U-turn by claiming that he is no longer interested in pursuing his complaint because he has already been appointed. The appointment of respondent no.11 also out of the same procedure cannot be countenanced in law and therefore, this Court must approve the ultimate direction of the Tribunal which has rightly asked the recruiting unit to proceed afresh after obtaining valid roaster. Considering the fact that the petitioners have continued in service for some length of time, this Court would direct the recruiting unit to ensure that the direction given for fresh consideration by the Tribunal is complied within a period of six months from the date of receipt of this order. It is, however, made clear that the petitioners will not be entitled to continue in service from today onwards even if they may have continued after the order of the Tribunal in terms of the interim order passed by this Court. At the same time this Court would also protect the right of such of the petitioners and Saurav Kumar(respondent no.11), who ultimately if again get selected and appointed on the basis of the direction given by the Tribunal and in their cases it is hereby directed that they will be entitled for their continued seniority on the basis of their earlier appointment. Patna High Court CWJC No.3645 of 2012 (7) dt.18-11-2013 9 Subject to the aforementioned limited observation and direction, all these applications fail and are accordingly dismissed. (Mihir Kumar Jha, J) surendra/-