Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12592 of 2010 ====================================================== 1. Md. Jbrail S/O Md. Usman R/O Vill.- Kharik Bazar, P.S.- Kharik, Distt.- Bhagalpur 2. Md. Athar Faraz S/O Md. Yasin R/O Vill.- Douna, P.O. Pavai, P.S. Amarpur, Distt.- Banka 3. Mukesh Ranjan S/O Surendra Mohan Das R/O Vill.+P.O.- Tintanga Karari, P.S.- Gopalpur, Distt.- Bhagalpur 4. Krishna Kumar S/O Late Jaykaran Mandal R/O Vill.- Purani Sarai, P.O. Champanagar, P.S. Nathnagar, Distt.- Bhagalpur 5. Bhawesh Kumar S/O Sri Chulahay Mandal R/O Vill.- Purani Sarai, P.O.- Champanagar, P.S. Nathnagar, Distt.- Bhagalpur 6. Manoj Kumar S/O Ganesh Prasad R/O Vill.- Mohalla- Shaymal Das Lane (Bhurmal Bagicha), P.S.+P.O. Ishakchak, Distt.- Bhagalpur 7. Md. Imteyaz Alam S/O Md. Slahuddin R/O Vill.- Belkhuria, P.O.- Dariapur, P.S. Nathnagar, Distt.- Bhagalpur 8. Md. Parwez Alam S/O Md. Shamsuddin Ansari R/O Vill.- Ibrahimpur, P.O.+P.S.- Sajour, Distt.- Bhagalpur 9. Brajesh Kumar Paswan S/O Late Parsadi Paswan R/O Vill.- Harichak, P.O.- Kasdi, P.S.- Antichak, Distt.- Bhagalpur 10. Md. Furquan Ali Bismil S/O Md. Rustam Ali R/O Vill.- Badrai Alampur, P.O.+P.S.- Habibpur, Distt.- Bhagalpur 11. Md. Rashid Anwar S/O Md. Anwar Hussain R/O Vill.+P.O.+P.S.- Tatarpur, Hower Nathnagar Road, Distt.- Bhagalpur .... .... Petitioner/s Versus 1. The State Of Bihar 2. The Principal Secretary, Department Of Human Resources Development, Govt. Of Bihar, Vikash Bhawan, Patna 3. The Director Secondary, Human Resources Development, Govt. Of Bihar, Vikash Bhawan, Patna 4. Zila Parishad, Bhagalpur, Through Its Executive Officer, I.E. The Deputy Development Commissioner, Bhagalpur 2
Legal Reasoning
Patna High Court CWJC No.12592 of 2010 (6) dt.09-12-2013 2 / 8 5. The Chairman Zila Parishad, Bhagalpur 6. The Deputy Development Commissioner, Bhagalpur 7. The District Education Officer, Bhagalpur ====================================================== .... .... Respondent/s Appearance :
Legal Reasoning
For the Petitioner/s : Mr. Panchu Ram For the Respondent/s : Mr. (Aag2) ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER 6 09-12-2013 Heard Mr. B.K. Dubey for the petitioners and Mr. Sudip Kumar, A. C. to AAG-2 for the State. Nobody has appeared on behalf of the respondent Zila Parishad and its functionaries. A counter affidavit has been filed on behalf of the respondent no.-7. The petitioner has filed rejoinder to the supplementary counter affidavit. No counter affidavit has been filed on behalf of the respondent- Zila Parishad. The present writ application seeks issuance of appropriate direction commanding the respondents to appoint the petitioners on the post of Assistant Teachers in Zila Parishad in accordance with the provisions contained in Bihar Zila Parishad Secondary and Higher Secondary Teacher( Employment and 3 Patna High Court CWJC No.12592 of 2010 (6) dt.09-12-2013 3 / 8 service condition) Rules, 2006. An Advertisement for selection and appointment to the post of Teacher under Zila Parishad was published some times in the year, 2006. The petitioners filed their applications against receipts enclosed as Annexure-3 series. The appointments were made in several phases for which merit list(s) was/were prepared. There is no controversy that earlier to the present one, six stages/phases of process of selection and appointment had already undergone and appointments were made. The seventh phase/stage of selection/appointment of Primary Teacher (P.Ts.) is the dispute raised in this application. A final selection list (Annexure-5) was prepared containing the names of applicants both trained and untrained. The petitioners are untrained candidates/ aspirants for
Decision
the post of P. Ts. under Zila Parishad. As per the writ petition, the respondents appointed only those candidates, who were trained and figured in the said list in earlier phases and thereafter stopped making appointments taking refuge under the instruction received from the respondent-State. Let it be recorded that prior of the preparation of the select/merit list in the seventh phase, notice was issued for counseling of the candidates in which the petitioners had appeared. Since the appointments were not being made from the 4 Patna High Court CWJC No.12592 of 2010 (6) dt.09-12-2013 4 / 8 said list prepared in the seventh phase of appointment, one of the applicants namely, Abdul Salam having failed to receive any response on his representation filed before the authority, filed writ application vide CWJC No. 6521/2009. The State respondents contested the said application relying on the instructions issued by the Principal Secretary, Department of Education, Government of Bihar (Annexure-A to the counter affidavit) whereby the Principal Secretary, Department of Education is said to have restrained the respondents from issuing of any further appointment letter without prior permission of the Government. This Court by a proceeding dated 12.03.2012 (Annexure-10) allowed the writ petition directing the respondents to issue appointment letter in favour of the petitioner within the time framed thereunder. Aggrieved by the said order, the State respondents filed a writ appeal before this court, which was considered and rejected by an order dated 03.2.2012 (Annexure-13).The petitioner of the said case was thereafter issued the appointment letter. Another set of applicants, figuring in the merit/selection list (Annexure-5) also filed a writ petition being C. W. J. C. No. 1806 of 2008. The said writ petition was also disposed of on 21.09.2010 (Annexure-15 of the supplementary affidavit) in terms of order passed in CWJC No. 6521/2009. The respondents thereafter issued appointment 5 Patna High Court CWJC No.12592 of 2010 (6) dt.09-12-2013 5 / 8 letters in favour of those petitioners of CWJC NO. 1806/2008. The petitioners, who figured in the said merit list (Annexure-5), above to some of the petitioners of CWJC No. 1806 of 2008 were denied appointment leading to filing of the present writ petition seeking appropriate direction for their appointment in the light of the facts noticed herein above. Respondent District Board has not filed any counter affidavit. The State respondents have filed a counter affidavit in which a similar stand has been taken that further appointments of P.Ts. from the said has been prohibited by the State government until further instruction or permission granted in this regard from the Government. It has orally been submitted by the learned counsel for the respondent that the vacancies may now not be available with the respondent, Zila Parishad for appointment of the petitioner in diverse categories. Learned counsel for the petitioners on the other hand has submitted with reference to Annexure-12 to re-joinder affidavit that several vacancies allotted earlier to the Zila Parishad, remained unfilled. As on today more than 477 posts of Teachers in different schools under the Zila Parishad are vacant. The statement of the petitioners in paragraph-7 of re-joinder is extracted hereunder:- 6 Patna High Court CWJC No.12592 of 2010 (6) dt.09-12-2013 6 / 8 to say that no sanction posts “ That in reply to the averments made in paragraph no. 15 it is submitted that it is totally is false vacant/available for appointment of teachers whereas factual position is that for the Zila Parishad, Secondary Teacher 416 posts were vacant in first phase and against that only 362 teachers were appointed and as such 54 posts were vacant the appointment and at present also 477 posts of teacher in different subjects are vacant in Zila Parishad.” first phase of the in On consideration of the submissions made by the parties and after scanning the material on record, it appears that the petitioners after having been counseled were included in the final select/ merit list prepared in the seven phase of appointment. Some of the persons figuring therein moved this Court seeking a direction upon the respondents to issue appointment letters in the light of the merit/ selection list prepared in accordance with the provisions contained in Rules. The State respondents contested the said application only on the ground that the State Government had instructed not to make further appointment or to issue further appointments after issuance of the said letter (Annexure-A to the counter affidavit) without seeking prior permission of the Government. The said stand was overruled by this Court. It is also seen that several posts of teachers under the respondent Zila Parishad are still vacant. Some persons figuring below the 7 Patna High Court CWJC No.12592 of 2010 (6) dt.09-12-2013 7 / 8 petitioner in the merit;/ select list have been appointed under the orders of this Court. Having regard to the above, this Court finds no difficulty in accepting the contention of the petitioners that they have arbitrarily been denied the appointments although they figured in the final list prepared in accordance with the Rules. The order/ instruction contained in annexure-A, is only to the effect that further permission was necessary before selecting/ appointing the candidates figuring in the select;/ merit list after counseling. The respondent Zila Parishad was only required to take permission and thereafter to proceed in the matter. In this backdrop, two writ petitions have already been considered and allowed. The petitioners of those two cases have been appointed by the respondents. It has been categorically submitted by the learned counsel for the petitioners that vacancies , which were advertised in 2006 vide Annexure-2, have still remained unfilled . The case of the petitioners is thus squarely covered by the two orders passed by this Court as noticed above. This Court is thus persuaded to allow this application by directing the respondents to consider the case of the petitioners and issue appointment letters against the left out vacancies of the year 2006 within eight weeks from the date of receipt/ production 8 Patna High Court CWJC No.12592 of 2010 (6) dt.09-12-2013 8 / 8 of a copy of this order. There shall be no order as to costs. (Kishore Kumar Mandal, J) Sudha/-