Letters Patent Appeal No. 975 of 2012 · Patna High Court · 2012
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No. 975 of 2012 In Civil Writ Jurisdiction Case No. 8137 of 2011 With Interlocutory Application No. 6543 of 2012 In Letters Patent Appeal No. 975 of 2012 ====================================================== 1. Shakil Ahmad, S/o Md. Israil, Resident of Village - Hasauri, P.S. - Sheikhpura, District - Sheikhpura. 2. Jitendra Kumar, S/o Arjun Sao, Resident of Village - Hasauri, P.S. - Sheikhpura, District - Sheikhpura. .... .... Petitioners / Appellants Versus 1. The State of Bihar through the Principle Secretary, Human Resources Development, Government of Bihar, Patna. 2. Director, Primary Education, Bihar, Patna. 3. Member, District Teachers Employment Appellate Authority, Sheikhpura. 4. District Superintendent Authority, Sheikhpura. 5. Block Development Officer, Sheikhpura Block, Sheikhpura. 6. Block Education Extension Officer, Sheikhpura Block, Sheikhpura. 7. Mukhiya, Gram Panchayat Gagri Block, Distrct - Sheikhpura. 8. Panchayat Secretary, Gram Panchayat Gagri, Block, District - Sheikhpura.
Legal Reasoning
9. Shambhu Sharan, S/o Sri Satya Narayan Singh, Resident of Village- Gagri, P.S. - Sheikhpura, District - Sheikhpura. ………Respondents/Respondents 1st Set. 10. Rekha Kumari, W/o Punkaj Kumar, R/o Village Ekauna, P.S.- Sheikhpura, District - Sheikhpura. .... .... Petitioner/Respondent 2nd Set ====================================================== Appearance: For the Appellant/s : Mr. Vinod Kumar Kanth, Sr. Advocate with Mr. Mukul Sinha, Mr. Sunil Kumar Tiwary, Mr. Siddharth Shankar Pandey and Mr. Rajesh Kumar, Advocates Patna High Court LPA No.975 of 2012 (9) dt.08-03-2013 2 For the Respondents State: Mr. Ravi Bhardwaj, AC to SC 1 For the Respondent No. 9 : Mr. B. K. Chaudhary, Sr. Advocate and Dr. Anjani Prasad Sinha, Advocate For the Respondent No. 10: Mr. Bijay Kumar Pandey, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 9 08-03-2013 Feeling aggrieved by the order dated 30th March 2012 made by the learned single Judge in CWJC No. 8137 of
Decision
2011, the writ petitioner nos. 2 and 3 have preferred this Appeal under Clause 10 of the Letters Patent. The matter at issue is the appointment of the petitioners as Panchayat Shiksha Mitra under the Gram Panchayat Gagri, District - Sheikhpura made in 2005. Pursuant to their appointment as Panchayat Shiksha Mitra, on and from 1st July 2006 the petitioners were absorbed in service as Panchayat Teacher. The respondent no. 9, one Shambhu Sharan, approached the District Teachers Employment Appellate Authority, Sheikhpura (hereinafter referred to as “the Appellate Authority”) complaining that his appointment as Panchayat Shiksha Mitra was discontinued for want of requisite qualification. On his acquiring the requisite qualification, although he was restored as Panchayat Teacher pursuant to the Government Resolution dated 4th July 2008, he was not posted in the Primary School Gunhesa; and that he was not paid salary since 20th May 2009. While considering the said complaint in Appeal No. 3 of 2010 the Appellate Authority ventured into Patna High Court LPA No.975 of 2012 (9) dt.08-03-2013 3 examination of the appointment of the writ petitioners as Panchayat Shiksha Mitra made in 2005 and held that the said appointments were made without following due procedure. Consequently the Appellate Authority set aside the appointment of the writ petitioners. Feeling aggrieved, the writ petitioners approached this Court under Article 226 of the Constitution in above CWJC No. 8137 of 2011. The learned single Judge was pleased to affirm the order of the Appellate Authority and to dismiss the Writ Petition. The learned single Judge was pleased to observe, “In a State where many educated youth are facing problem of unemployment, it is unthinkable that the Gram Panchayat had only three applicants against the vacancies created by removal of three persons. There is nothing to show that said three posts were advertised by the Gram Panchayat and the opportunity was given to all and every person, who were otherwise eligible for consideration of such appointment. Obviously, the three persons including the present petitioner had been appointed through backdoor after removing three other persons by the Panchayat may be for extraneous consideration.” Therefore, this Appeal. Learned counsel Mr. Vinod Kumar Kanth has appeared for the appellants. He has submitted that the impugned order was made by the Appellate Authority ex parte against the writ petitioners. The learned single Judge has failed to appreciate the contention raised by the writ petitioners and has proceeded to dismiss the Writ Petition on a presumption not supported by the facts on record. Learned advocate Mr. Ravi Bhardwaj has appeared Patna High Court LPA No.975 of 2012 (9) dt.08-03-2013 4 for the respondent State Government and has contested the Appeal. We do agree with Mr. Vinod Kumar Kanth. On perusal of the application made by the aforesaid Shambhu Sharan, it is apparent that the complaint made by the said Shambhu Sharan was limited to his posting in the Primary School at Gunhesa and payment of due salary. The Appellate Authority was not called upon to examine the appointment of the writ petitioners; nor did the Appellate Authority called upon the writ petitioners or the Gram Panchayat to justify the selection and appointment of the writ petitioners. In our opinion, the Appellate Authority had exceeded its jurisdiction in expanding the scope of enquiry. We also agree with Mr. Vinod Kumar Kanth that the learned single Judge has erred in dismissing the Writ Petition on a presumption that the appointment of the writ petitioners was made in contravention of Articles 14 and 16 of the Constitution. There were no materials before the Appellate Authority or the learned single Judge to hold the appointment of the writ petitioners to be bad and illegal. For the aforesaid reasons, Appeal is allowed. The impugned order dated 30th March 2012 made by the learned single Judge in CWJC No. 8137 of 2011 is set aside. CWJC No. 8137 of 2011 is allowed. The order dated 21st April 2011 made by the District Teachers Employment Appellate Authority, Sheikhpura in Appeal No. 3 of 2010 is set aside insofar as the appointment of the writ petitioners has been held to be bad and is cancelled. We are informed at the Bar that pursuant to the said order dated 21st April 2011, the writ petitioners have been Patna High Court LPA No.975 of 2012 (9) dt.08-03-2013 5 removed from service on 2nd July 2011. The service of the writ petitioners as Panchayat Teacher will be restored within one month from today. The writ petitioners may be posted in any of the Primary Schools under the Gram Panchayat Gagri, District Sheikhpura. On reinstatement in service, the writ petitioners will be entitled to restoration of service benefits, such as, seniority, continuity, etc. The writ petitioners, however, will not be entitled to salary for the interregnum period on the principle of “No Work No Pay”. In the event the writ petitioners are not reinstated in service by 7th April 2013, commencing from 8th April 2013 the petitioners will be entitled to salary / honorarium. Interlocutory Application stands disposed of. (R.M. Doshit, CJ) (Ahsanuddin Amanullah, J) Dilip.