P.S v. THE STATE OF BIHAR

aggrieved by the order of the District Teachers Employment Appellate Authority, Kishanganj (hereinafter referred to as the Tribunal) dated 26.05.2009, which was passed in Patna High Court CWJC No.10570 of 2009 (5) dt.09-05-2012 4 Appeal Case No. 19 of 2009 instituted on

27.01.2009, whereby whereunder, appointment of all the 14 petitioners in all including that Respondent no. 8 has been cancelled with a consequential direction to hold counseling afresh of all the candidates for filling up the post of Panchayat Teacher in the aforementioned Panchayat. Mr. Rajendra Prasad Singh, learned senior counsel appearing behalf petitioner in C.W.J.C No. 10570 of 2009 has submitted that though the impugned order of the tribunal is unsustainable on several grounds but the aspect which would make it totally vitiated is of its being in complete violation of the principles of natural justice, inasmuch as, according to Mr. Singh, none of the petitioners who were already appointed on the post of Panchayat Teacher in the year 2007 and were also continuing in service were ever given notice by the tribunal much less an opportunity of hearing before passing of the impugned order. Commenting further on the impugned order Mr. Singh is of the view that the Tribunal could not have expanded the scope of the complaint filed by respondent no. 8, which was Patna High Court CWJC No.10570 of 2009 (5) dt.09-05-2012 5 only confined to his grievance of non payment of salary despite being also appointed on the post of Panchayat Teacher. In this regard, he has also submitted that as a matter of fact, respondent no. 8 had no case on merit and in fact the finding of the tribunal in the impugned order has also not been assailed by respondent no. 8. Mr. Singh, has also tried to support the appointment of the petitioners by taking a plea that since there was no objection to the merit list prepared by the Panchayat in 2006, subsequent challenge appointment of the petitioners in the year 2007 was impermissible. He has also submitted that in any event the case of the intervener Nadeem Akhtar ought to have not been made the basis by the Tribunal for interfering with the order of appointment of the petitioners because Nadeem Akhtar’s complaint as with regard to his being not selected and appointed was already rejected by the Block Development Officer, the competent Authority under Rule 18 of Panchayat Teacher Appointment Rules 2006 by his order dated

20.11.2007 in Case No. 21 of 2007-2008 and the same had also become final. Learned counsel for respondent no. 8, Patna High Court CWJC No.10570 of 2009 (5) dt.09-05-2012 6 who has himself filed two writ applications namely C.W.J.C No. 5233 of 2009 and 9097 of 2009, former being for his payment of salary latter against termination, has submitted that the impugned order of the Tribunal, to the extent it had also directed for termination of services of Pankaj Kumar Prabin, respondent no. 8 in the first application and petitioners of the remaining applications was/is unsustainable inasmuch as, the issue involved in the complaint filed by him was confined to payment of his salary and the tribunal therefore ought to have allowed and/or rejected his case but should not have passed an order for his termination of service, that too without recording any finding against him. Learned counsel for the State on the other hand having produced the original records of the entire selection before this Court in compliance of an earlier order has submitted that the Tribunal having been approached by the respondent no. 8 of C.W.J.C No. 10570 of 2009 though for payment of his salary when the whole issue was examined by the Tribunal it was discovered that there was a huge bungling Patna High Court CWJC No.10570 of 2009 (5) dt.09-05-2012 7 committed in the process of selection and appointment of all the Panchayat Teachers including the petitioners and Respondent no. 8 and as such the Tribunal in order to decide the issue of payment of salary despite his being appointed allegedly against unsanctioned post had gone into the connected aspects. In the process of such examination, it get revealed that the entire appointment on the post of Panchayat Teacher was made in complete violation of the provisions made in 2006 Rules. He by taking of has thus defended the impugned order the Tribunal could not have shut its eyes by allowing such illegal appointment to continue and it has rightly interfered with the appointment of 14 petitioners of the first case, C.W.J.C No. 10570 of 2009, as also the respondent no. 8, Pankaj Kumar Prabin. This Court having examined the impugned order in the light of its reasoned order and the following findings :- fu;kstu ls lacaf/kr lquokbZ ds dze esa mijksDr of.kZr rF; mHkj dj lkeus vk;s Fks&& (I) iapk;r fu;kstu bZdkbZ us izf’kkf{kr f’k{kdkas ds lR;kiu gsrq fcuk dksbZ frfFk fu/kkZfjr djrs gq, viuh cSBd iath esa vafdr fd;k fd fu/kkZfjr frfFk ij dksbZ Hkh izf’kkf{kr vH;FkhZ rd ds mifLFkr ugha gksus ds dkj.k mudk fu;kstu dk nkok [kkfjt fd;k tkrk gSA ;g vkns’k mudh LosPNkpkfjrk vkSj izf’kkf{kr vH;fFkZ;ksa ds izfr fd;s x;s vU;k; dk lwpd gSA (II) vizf’kkf{kr vH;fFkZ;ksa ds fu;kstu esa mPp vad okys vH;FkhZ dks lHkh dksfV ds fu;kstu esa mUgsa vuqifLFkr fn[kkdj de vad okys vH;fFkZ;ksa dks fu;kstu fd;k x;k gS] tks cSBd iath vkSj dkamflfyax rFkk lR;kiu iath ls mtkxj gksrk gSA Patna High Court CWJC No.10570 of 2009 (5) dt.09-05-2012 8 (III) vizf’kkf{kr vH;fFkZ;ksa ds vkWicaf/kd vkSj vafre es/kk lwph esa l{ke vad/kkjh vH;FkhZ ds jgus ds ckotwn Hkh fu;kstu bdkbZ }kjk tku cw> dj vius yksxksa ds fu;kstu gsrq dV vkWQ ekDlZ dks Mkmu fd;k x;kA bl dk;Z gsrq fu;kstu bdkbZ esa fdlh Hkh mPp inkf/kdkjh ;k foHkkxh; mPp inkf/kdkjh ls vkns’k ysuk mfpr ugha le>k cfYd iz[kaM ’k{kk izlkj inkf/kdkjh ds ekSf[kd vkns’k ls dV vkWQ ekDlZ dks Mkmu dj vius yksxksa dk fu;kstu fd;kA ekSf[kd vkns’k ij dh xbZ ;g dk;Zokgh loZFkk fu;e ds izfrdwy gS] vkSj ;g Hkh fu;kstu tSls xaHkhj ekeyk esaA (IV) vH;fFkZ;ksa dks dkamflfyax esa “kkfey gksus ds fy, cqykok i= Hkstus dh izfdz;k ds laca/k esa cSBd iath esa dgha Hkh ppkZ ugha dh xbZ gS fd ;g fdl ek/;e ls vH;FkhZ dks Hkstk tk;sxkA ek= ,d dkamflfyax esa flQZ 18 vH;fFkZ;ksa dks Mkd ls cqykok i= Hkstk x;k gS cfd;s rhu dkamflfyax esa Mkd ls Hkstus dh dgha u ppkZ gS vkSj u mldk dksbZ lcwr gSA (V) ,d f’k{kd vH;FkhZ dk dkamflfyax djk gksus ds ckn Hkh mls fu;ksftr u dj mlls de vad okys vH;FkhZ dk fu;kstu fd;k x;k gSA (VI) vkosnu iath esa vU; dksfV esa 474 vkSj mnwZ dksfV esa 73 vH;fFkZ;ksa ds vkosnu jgus ds ckn Hkh ekDlZ Mkmu dj de vad okys dks fu;ksftr fd;k x;k tcfd vf/kd vad okys vH;FkhZ dk vkosnu fu;kstu bdkbZ ds ikl la/kkfjr Fkk blfy;s vf/kd vad okys dk fu;kstu djuk Fkk ysfdu ,slk ugha fd;k x;k D;ksafd fu;kstu bdkbZ dh ea”kk dqN vkSj Fkh blfy, dV vkWQ ekDlZ dks Mkmu fd;k x;k fcuk fdlh inkf/kdkjh ds vkns’k dsA (VII) fu;kstu ls lacaf/kr lHkh fcUnqvksa ij tkap ls izrhr gksrk gS fd fu;kstu bdkbZ ds eqf[k;k lg v/;{k ,oa iwoZ lsok fuo‘r iapk;r lfpo us fu;eksa ifjfu;eksa dks vuns[kh djrs gq, vius iapk;r vUrxZr f’k{kdksa dk fu;kstu fd;s gSaA blds fy, iapk;rh jkt fu;e ds rgr nksuksa ij dk;Zokgh gksuh pkfg;sA vr% mijksDr rF;ksa ds vk/kkj ij nq?kkSaVh iapk;r vUrxZr fu;ksftr lHkh iapk;r f’kk{kd vkSj f’kf{kdkvksa ,oa blds vfrfjDr Jh iadt dqekj izoh.k dk fu;kstu fujLr djrs gq, okn [kkfjt fd;k tkrk gSA iqu% fu;kstu bdkbZ dks vkns”k fn;k tkrk gS fd nks eghus ds vUnj fjfDr ds fo:) ikjnf’kZrk viukrs gq, miyC/k es/kk lwph ds vk/kkj ij vad izfrkr dks /;ku esa j[krs gq, fofHkUu dksfV esa iw.kZ dkamflfyax dj iapk;r f’kk{kdksa dk fu;kstu djsaA bldh lle; lwpuk izkf/kdkj dk;kZy; dks Hkh izsf’kr djsaA had accordingly found it necessary to look into the original records and thus by an order of this Court dated 09.04.2012, it had directed learned counsel for the State to produce the original records. From the perusal of the original records Patna High Court CWJC No.10570 of 2009 (5) dt.09-05-2012 9 the grounds mentioned above by the Tribunal in the impugned order are fully substantiated. Let it be made clear that the Counsel for the parties including the petitioners in these cases were also given opportunity to inspect the records in the office of learned Standing Counsel and today all of them have accepted to have gone through the original records of selection and appointment. In course of submission, learned counsel for the petitioner have also not been able to discover any error of record in the impugned order based on records of such selection and appointment. In that view of the matter, this Court would find it difficult to accept the submission of Mr.Singh that the Tribunal had no jurisdiction to go into the issue of gross illegality committed in course of the selection and appointment of the petitioners only because a complaint was filed by respondent no. 8 confining his prayer for payment of his salary. This Court in fact would find the order of the Tribunal laudable and justified. The Tribunal however has done so without following the basic principles of natural justice. There was full justification for the Tribunal to draw its Patna High Court CWJC No.10570 of 2009 (5) dt.09-05-2012 10 conclusion in the connected aspect of payment of salary inasmuch as only a valid appointment in the eye of law can confer a right for receiving payment of salary. Therefore the findings recorded by the Tribunal that such appointment of the petitioners and others were not made in complete breach of the 2006 Rules do not suffer from any error but the Tribunal having arrived at such prima facie finding of illegality appointment petitioners it was required to issue notice to them inasmuch as they were continuing in service for quite some time and thus were entitled to show cause notice before it had decided to set aside their appointment. It is by now well settled that a person already appointed in service, unless his appointment is vitiated by fraud, would be entitled for at least to a notice and/or an opportunity of hearing. Thus to that extent the impugned order of the tribunal directing the termination of service of the petitioners without giving notice and/or opportunity of hearing to them cannot be sustained. As a matter of fact, even if the Tribunal was required to go into the issue of Patna High Court CWJC No.10570 of 2009 (5) dt.09-05-2012 11 payment of salary of respondent no. 8 and it had found that the payment of salary of the petitioners and respondent no. 8 was not paid on account of continuation of two of the petitioners namely, petitioners nos. 11 and 12 in C.W.J.C. No. 10570 of 2009 on account of their having lesser marks to the Respondent no. 8 in the panel who appeared to have been illegally appointed in preference to respondent no. 8, it had to issue notice to both of them even for the purpose of deciding the question of payment of salary to respondent no. 8. True it is that the State could not have paid the salary to respondent no. 8 as also the petitioner nos. 11 and 12, inasmuch as, for their category there was only two posts on which the authorities of the concerned Panchayat had appointed three persons but even then an opportunity for hearing had to be extended to the petitioners of the first case. Having held so, this Court must record that it is amazed with the process of selection and appointment of the petitioners because as noted above, one of the finding recorded by the Tribunal in the impugned order is that there were ten trained candidates available who had Patna High Court CWJC No.10570 of 2009 (5) dt.09-05-2012 12 also filed their application for appointment but all of them were eliminated even without issuing any notice and/or opportunity of hearing in the process of filing objections to the draft merit list or in the course of counseling. Such finding arrived at and recorded by the Tribunal is also well supported from the original records. Infact if these 10 posts of Panchayat teachers, as per the 2006 Rules, had been filled up, there was no question of appointment of the petitioners or respondent no. 8, inasmuch as, there were posts of only 14 teachers, out of which 10 of them had to go to the 10 trained teachers. Moreover even in respect of untrained categories, the appointment of petitioner nos. 2, 3, 4, 5, and 9 despite their being placed at Serial No. 2, 7, 20, 17 and 40 of the panel in the category of Urdu teachers could not have been made if the process of counseling was properly conducted, inasmuch as, Serial No. 1, 3 to 6, 8 to 16, 18, 19 and 21 to 39 were definitely eliminated in the process of appointment of these petitioners. The Tribunal therefore, though justified holding appointment of the petitioners to be illegal Patna High Court CWJC No.10570 of 2009 (5) dt.09-05-2012 13 but even then before doing so it was required to hear the view points of the petitioners. Similarly in the other category when the selection and appointment of petitioner nos. 11, 12, 13 and 14 was made though they were at Serial No. 1, 3 7 and 8, respectively there could have been some justification as with regard to the appointment of the petitioner no. 11 since there was no person having higher marks than him but it is here that the case of respondent no. 8 comes into play, inasmuch as, he claims to have secured higher marks than even petitioner nos. 11 and 12, who are of the same category. The finding of the Tribunal therefore in the impugned order to that extent cannot be held to be bad. Similarly, the appointment of petitioner nos. 13 and 14 though being placed at Serial NO. 7 and 8 and persons above them in the panel, Serial No. 2 and 4 to 6 having been left out, had by itself definitely required reconsideration by the Authorities making such appointment. In the same manner, this Court would not find any justification for appointment of petitioner no. 6 placed at Serial No. 19, petitioner no. 1 at Serial No. 38, petitioner Patna High Court CWJC No.10570 of 2009 (5) dt.09-05-2012 14 no. 8 at Serial No. 66, petitioner no. 10 at Serial No. 11 and petitioner no. 7 at Serial No. 120 unless it can be safely demonstrated by them that all the persons placed above them in the panel had shown reluctance to obtain such appointment and in fact despite being given a proper notice of counseling had themselves voluntarily refused to appear before the Panchayat. It would be however impossible to digest that in the merit list of 127 persons from Serial No. 1 to 18 will not be interested and from serial no. 19 and again from Serial no. 1 to 37, barring the petitioner o. 6 at serial no. 19, will not be interested so that petitioner no. 1 at Serial No. 38 could be appointed. The manner in which the selection of Serial No. 66 of the panel, petitioner no. 8 at Serial No. 111, petitioner no. 13 at Serial NO. 120 and petitioner no. 7 in the total panel of 127 have been made even in untrained category would therefore, put a big question mark on the entire process of alleged counseling. It is here that the records of the selection also do not inspire confidence and therefore, these aspects will be again required to be gone into in the presence of the Patna High Court CWJC No.10570 of 2009 (5) dt.09-05-2012 15 petitioners. The Tribunal therefore, will look into these aspects and decide whether the appointment and selection of the petitioners was in accordance with 2006 Rules and whether the persons in the panel above them were given adequate and proper opportunity in the process of counseling. As with regard to the grievance of respondent no. 8 in the first case and writ petitioner in rest of the two cases, this Court must hold that if the Tribunal had found his case of the petitioner not fit for payment of salary and in fact his appointment to be also bad, it had to also record reasons before passing the direction for termination of his service. The Tribunal, however, has not gone into this aspect separately and has proceeded only on the ground that since all the appointments on the post of Panchayat Teacher were vitiated, the case of Pankaj Kumar Prabin, respondent no. 8 in the first case and petitioners in the other two cases could not be distinguished. Thus aforesaid discussion this Court basically would hold impugned orders to be bad on the ground of Patna High Court CWJC No.10570 of 2009 (5) dt.09-05-2012 16 violation of the principles of natural justice. Annexure-1, Annexure-2, Annexure-3 Annexure-3/A of C.W.J.C No. 10570 of 2009 and Annexure-1 in C.W.J.C No. 9097 of 2009 are accordingly quashed and the matter is remitted back for fresh consideration and disposal of the case in accordance with law. It is however made clear that the Tribunal will not be restricting itself only to the issue raised in the complaint of Respondent no. 8 in first case inasmuch as, now it has come to the notice of this Court that the whole process of selection and appointment on the post of Panchayat Teacher in Panchayat in question was vitiated on account of non observance of procedure laid down in the Rules and therefore, the Tribunal shall go into the issue of correctness and legality of the appointment of the petitioners as also respondent no. 8. This exercise should be completed by the Tribunal expeditiously preferably within a period of six months from the date of receipt/production of a copy of this order. Till it is done so, the petitioners as also respondent no. 8 shall continue in service but Patna High Court CWJC No.10570 of 2009 (5) dt.09-05-2012 17 their payment of salary for the time being will not be made from today until the issue of legality of their appointment is decided by the Tribunal. In order to expedite the process of such consideration by the Tribunal, this Court would direct the petitioners as also respondent no. 8 of C.W.J.C. No. 10570 of 2009 to appear before the tribunal on 28th of May, 2012 and the Tribunal thereafter would proceed to examine the all the related aspects with the help of the original records which have been produced before this Court by the Panchayat Secretary, who has appeared with them in person. The Panchayat Secretary is also directed to appear on 28th of May, 2012 and produce all the records before the Tribunal that has been produced by him before this Court and such records thereafter would be kept in safe custody of the Tribunal till the final adjudication of the case. It is however made clear, that whatever has been observed by this Court as with regard appointment petitioners Respondents no. 8 in relation to the submission made by learned Counsel for the parties would not prejudice anyone of them and Tribunal will Patna High Court CWJC No.10570 of 2009 (5) dt.09-05-2012 18 decide the matter afresh strictly in accordance with law. With the aforesaid observations and directions all these applications are disposed of. Ranjan (Mihir Kumar Jha, J)