Manjula Kumari v. Panchayat Secretary & Ors.) as contained in Annexure
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12499 of 2010 ====================================================== 1. Manjula Kumari W/O Chakradhar Ray, D/O Late Bhushan Mandal R/O Vill Bishambhar Chak, Panchayat Salempur, P.S.Amarpur, Distt-Banka Versus .... .... Petitioner/s 1. The State Of Bihar 2. The Collector Cum District Magistrate Banka 3. The District Superintendent Of Education Banka 4. The Block Development Officer Amarpur Block, Distt-Banka 5. The Block Education Extension Officer Amarpur Block, Distt-Banka 6. Supervisor, Salempur Panchayat Amarpur Block, Distt-Banka 7. Panchayat Secretary, Salempur Panchayat Amarpur Block, Distt-Banka 8. Mukhiya , Salempur Panchayat Amarpur Block, Distt-Banka 9. District Teachers Employment Appellate Tribunal Banka through Its Member 10. Manisha Kumari D/O Surendra Mandal R/O Vill Amarpur, Panchayat Amarpur, P.S.Amarpur , Distt-Banka .... .... Respondent/s ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER 9 25-11-2013 In this writ petition filed under Article 226 of the Constitution of India the petitioner prays for issuance of appropriate writ/order for setting aside the order dated 27.5.10 passed by the District Teacher’s Employment Appellate Authority/Tribunal, Banka in case no. 855/30-2-2009 ( Manjula Kumari Vs. Panchayat Secretary & Ors.) as contained in Annexure-6. The Tribunal in its order found that no material was placed before it to demonstrate that she was not allowed to participate in the counselling. Consequently the appeal preferred by the petitioner was rejected.
Legal Reasoning
Patna High Court CWJC No.12499 of 2010 (9) dt.25-11-2013 2 Relevant facts and circumstances in brief giving rise to the present writ petition are as under:- Process of selection for the post of Panchayat Teacher ( for short ‘PT’) in the Salempur Panchayat in Amarpur Block within District of Banka was taken up. Notice inviting application was issued/published. The petitioner and many others applied. The petitioner at the time of filing application had passed Intermediate examination in First division securing 60.73% of marks. She claimed herself belonging to the Extremely Backward Classes category which is also the case of the private respondent no. 10. She has asserted that her counselling was made on 4.12.2006 but thereafter she was not selected and respondent no.10 having secured less percentage of marks in the Intermediate examination ( 59.90%) was appointed as PT. The respondent with a view to select the respondent no.10 had shown inflated percentage of marks (61.44%) secured by respondent no.10 which was subsequently changed to 59.90%. The petitioner raised a grievance by filing representation before the District Superintendent of Education ( for short ‘DSE’) pointing out the illegalities whereafter the DSE directed the respondent Block Development Officer, Amarpur ( for short ‘BDO’) to do the needful after hearing the parties by communication dated Patna High Court CWJC No.12499 of 2010 (9) dt.25-11-2013 3 16.12.2006. The BDO Amarpur, in turn, directed the Supervisor of the Panchayat to make enquiry and submit report. The Supervisor of the Panchayat is said to have made an enquiry and submitted a report dated 13.1.2007 (Annexure-3) pointing out
Decision
therein that the writ petitioner had secured higher percentage of marks in the Intermediate of Arts examination than the respondent no.10. He also pointed out certain irregularities in not associating him in the appointment of respondent no.10. In spite of the report having been submitted to the Block Development Officer no further action was taken punctuating the petitioner to file representation dated 24.1.2007 to the Collector, Banka for taking necessary action in the matter. It was pointed out therein that the respondent no.10 was not the permanent resident of that Panchayat. The petitioner has asserted that the respondents have acted in a malafide manner in placing the respondent no.10 high in the merit list although she had obtained less percentage of marks than the petitioner. Subsequently correction was made in the percentage of marks obtained by the respondent no.10. No relief was forthcoming to the petitioner and as such she filed a writ petition before this Court vide CWJC No. 4680 of 2007. The said writ petition was disposed of by order dated 14.12.2009 (Annexure-5) permitting the petitioner to file appropriate Patna High Court CWJC No.12499 of 2010 (9) dt.25-11-2013 4 application before the Appellate Authority/Tribunal for ventilation of the grievance and the Tribunal/Authority was mandated to dispose of the appeal in accordance with law after hearing the parties concerned. The petitioner thereafter filed the aforesaid case before the Tribunal which was considered and rejected which was communicated to the petitioner vide Annexure-6 which has been impugned in the present application. Heard Mr. Rajendra Narain learned counsel for the petitioner, Mr. Tej Bahadur Singh for the private respondent no.10 and counsel for the State. In spite of notice no one has appeared on behalf of the respondent nos. 7 and 8. The parties have exchanged their pleadings. Learned counsel for the petitioner has submitted that the petitioner as well as the respondent no.10 belonged to the same category. The petitioner obtained higher percentage of marks in the Intermediate of Arts examination than the respondent no.10. She had appeared before the selection committee for her counselling on the date and time fixed therefor which was scheduled on 29 and 30th November 2006. The petitioner had appeared for counselling but she was prevented from participating therein on fictitious grounds. The respondents have, therefore, acted in an arbitrary manner to exclude her from the fray Patna High Court CWJC No.12499 of 2010 (9) dt.25-11-2013 5 adopting a method which is highly objectionable. This was with a view to give undue advantage to the respondent no. 10. It has further been submitted that the two counter affidavits filed on behalf of the State respondents are contradictory. In the first counter affidavit of the DSE, Banka it has been stated that the candidates figuring in merit list were asked to appear on 4.12.2006 before the appointment/selection committee for which notice was duly published in the newspaper in order to fill up the remaining vacant posts. This was in the light of the resolution dated 2.12.2006 taken by the selection committee to afford one more opportunity to the candidate(s) to present for counselling and appointment on the vacant post. The petitioner, respondent no.10 and other candidates belonging to the EBC ( female) category were required to present for their counselling but only the respondent no.10 appeared. After counselling she was appointed since no other candidate had appeared. Another supplementary counter affidavit has been filed on behalf of the respondent no.3 stating therein that altogether seven candidates had appeared on the date and time fixed for counselling i.e. 4.12.2006. The respondent no.10 had only appeared in the category of EBC. It has, thus, been submitted that an effort has been made by the State respondents to improve upon the case to Patna High Court CWJC No.12499 of 2010 (9) dt.25-11-2013 6 justify selection/appointment of respondent no.10. This Court in order to maintain purity in the State action should interfere and set aside the impugned order. Mr. Tej Bahadur Singh, learned counsel for the respondent no.10, on the other hand, submits that this Court while exercising its jurisdiction under Article 226 of the Constitution of India would not interfere with the finding of fact recorded by the Tribunal after perusing the materials placed before it including the counselling register. He argued that prior to the constitution of the Tribunal under the Rules the BDO was the appropriate/competent authority to hear such grievance. The matter was raised by the petitioner before the respondent BDO. The BDO after making enquiry and obtaining reports by an order contained in letter no. 182 dated 8.2.07 ( Annexure D to the counter affidavit on behalf of the DSE, Banka) found that the selection committee had issued notice inviting the candidates for counselling on 4.12.2006. The notice was published in the newspaper. Even after publication of the notice the petitioner did not present herself for counselling and as such she was not selected although she had obtained higher percentage of marks. The allegation of illegal means adopted by the selection committee in excluding her from the selection process was not found correct. Patna High Court CWJC No.12499 of 2010 (9) dt.25-11-2013 7 Based on the evidence produced by the parties the Tribunal also found that no material was placed by the petitioner to demonstrate that she was prevented in any manner from participating in the counselling. As about the percentage of marks and corrections made therein it has been submitted with reference to the statements made in counter affidavit filed on behalf of the respondent no.10 that the respondent no.10 had pursued vocational course. For the purpose of computation of percentage the total marks obtained by the answering respondent in Intermediate or equivalent to Intermediate examination the State respondents were required to divide the total marks by nine to ascertain the actual percentage. The vocational or additional paper’s marks in excess of the pass marks was/were required to be added. It was accordingly added and she was placed above the writ petitioner. Even if the petitioner’s claim of having secured higher percentage of marks in the Intermediate of Arts examination is accepted, for argument sake, it would not rescue the petitioner since she had not participated in the counseling in spite of notice. A candidate who had not chosen to participate in the counselling cannot be considered for appointment. It has, thus, been argued that there is concurrent finding recorded by the BDO as well as the Patna High Court CWJC No.12499 of 2010 (9) dt.25-11-2013 8 Tribunal that the petitioner had not elected to participate in the counselling. Learned counsel for the State has produced the counselling register maintained by the selection committee showing presence of the candidate(s) for counselling on 4.12.2006. It appears that in the category EBC the respondent no.10 had only appeared and her signature was obtained. Having considered the submissions of the parties and on perusal of the materials placed on record, it appears the only grievance of the petitioner is that she was prevented from participating in the counselling by the respondents although she presented herself for such counselling. The grievance so raised in this application was raised by the petitioner before the BDO who was the competent authority before the constitution of the Tribunal. The BDO on making appropriate enquiry in this regard found that paper publication was made by the selection committee for appearance of the candidates under diverse categories for counselling to fill up the remaining vacant post, one of which fell under EBC category. From both the counter affidavit(s) filed on behalf of the State it is more than apparent that in the category to which petitioner belongs only the respondent no.10 had appeared and participated in the Patna High Court CWJC No.12499 of 2010 (9) dt.25-11-2013 9 counselling. The submission of the petitioner that she was prevented from participating in the counselling was not found substantiated by the BDO. The Tribunal also upon perusal of the materials placed in this regard came to the same conclusion. It is, thus, difficult for this Court to unsettle the concurrent findings of the respondent BDO and the Tribunal on the said issue. While exercising writ jurisdiction of the Court the findings of fact would not be interfered with unless shown to be wholly perverse. This Court is, thus, not persuaded to interfere with the order of the Authority/Tribunal (Annexure-6) impugned in this application. The application is dismissed. The counselling register submitted by the counsel for the State is directed to be returned. No order as to cost(s). (Kishore Kumar Mandal, J) Shyam/-