Bishwanath Paswan Shri Dhuri Lal Paswan Kulakhas v. The State Of Bihar

The State Of Bihar 2. The Principal Secretary Human Resource Department, Government Of Bihar, Patna 3. The Chairman District Board, Araria 4. The Chief Executive Officer, District Board, Araria 5. Regional Deputy Director (Education), Purnea Division, Purnea 6. District Education Officer, Araria 7. Incharge Headmaster Shri Darwari Roy High School, Mahthava, Araria 8. The Treasury Officer, Araria 9. The District Teacher Employment Appellate Authority, Araria .... .... Respondent/s ====================================================== Appearance : (In CWJC No.8464 of 2011) For the Petitioner/s : Mr. Jagnnath Singh For the State : Mr. Kamlerndra Pd.Singh, AC to GA5 (In CWJC No.8652 of 2011) For the Petitioner/s : Mr. Jagnnath Singh For the State : (In CWJC No.8669 of 2011) For the Petitioner/s : Mr. Jagnnath Singh For the State : Mr.Raghvendra Kumar Singh, AC to GA 3 (In CWJC No.9274 of 2011) For the Petitioner/s : Mr. Jagnnath Singh For the Respondent/s : ====================================================== CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL ORDER 6 04-03-2013 The facts and issues involved these four writ Patna High Court CWJC No.8464 of 2011 (6) dt.04-03-2013 3 applications are common and as such all these have been heard together and are being disposed of jointly. All the petitioners numbering four in total (one in each of the writ petition) were appointed against post of Economics under Scheduled Caste Untrained Category as a Secondary School teacher under Zila Parishad, Araria in the year

2007. The Selection Committee adopted due procedure as prescribed under Bihar Zila Parishad Secondary and Higher Secondary Teacher (Employment and Service Conditions) Rules, 2006 for making appointments. In the year 2011, the services of the four writ petitioners were terminated by different orders issued under the signature of District Education officer, Araria. The respondents terminated the services of the petitioners Bishwanath Paswan, the sole petitioner in C.W.J.C. No.8464 of 2011 on the ground that his name ought not to have been included in the second merit list as he did not appear for counseling though his selection finds mentioned in the first merit list. The service of Nand Kishore Ram, the petitioner in C.W.J.C. No.8652 of 2011 and Manoj Kumar Rajak, the petitioner in C.W.J.C. No.8669 of 2011 were terminated on the ground that their names should not have been included in the third merit list, once they did not appear for the Patna High Court CWJC No.8464 of 2011 (6) dt.04-03-2013 4 counseling pursuant to their selection in the first merit list.

The service of Sagam Lal Rajak, the petitioner in C.W.J.C. No.9274 of 2011 was terminated on the ground that he had not secured 58% marks required for inclusion in the merit list, which is different from grounds of termination mentioned in other writ applications. All the termination orders were passed in the year 2011 against which the petitioners have also filed appeal before the Appellate Tribunal. The common thread running through the case of the petitioners in C.W.J.C. No.8464 of 2011, C.W.J.C. No.8652 of 2011 and C.W.J.C. No.8669 of 2011 is that they could not participate in the counseling for good reasons as explained in their representations. The respondents being satisfied with their cause shown in representations included their names subsequent merit list and in the follow up counseling. As these petitioners were very high up in table of marks secured and required for being eligible were issued appointment letters.

The case of Sagam Lal Rajak, petitioner in C.W.J.C. No.9274 of 2011 is that the respondents have wrongly calculated the marks obtained by him at 57.92% in place of 59%. It has been further submitted that many applicants who had secured Patna High Court CWJC No.8464 of 2011 (6) dt.04-03-2013 5 less than 58% marks have been recruited as a teacher. The case of the respondents is that as per the advertisement persons having marks above 55% under Scheduled Caste Untrained Category were to be called for counseling. Subsequently, the Niyojan Committee decided to call only such candidates who were having at least 58% marks or above, for counseling. The respondents state that petitioner Sagam Lal Rajak had only 57.92%. I have heard counsel for the parties. I will take up the case of petitioners one by one by one. The petitioner Bishwanath Paswan in (C.W.J.C. No.8464 of 2011) admittedly secured 58% marks in Economics subject and his name figured in the first merit list. It is the case of the petitioner that he could not appear for the counseling held on

16.1.2007, as he was indisposed of. He made a representation and request to hold counseling for him. After receipt of the representation, the Employment Committee condoned his non- participation in the first counseling and included his name in the second list. The petitioner in view of his high marks was selected and appointed. After four years of joining respondents have issued memo no.247 dated 15.3.2011 contained in Annexur-10 terminating his appointment on the Patna High Court CWJC No.8464 of 2011 (6) dt.04-03-2013 6 ground that there is no provision for allowing an applicant to appear in the second counseling by putting his name in the second select list if he did not appear for counseling despite his name figuring in first select list. It was further stated by the respondents that the petitioner has already filed an appeal before the Employment Tribunal and as such the case should be relegated to the Appellate Authority.

I am not impressed with the submissions of the respondents that at this stage of hearing, the petitioner should be relegated to the Tribunal. This case has been filed in the year 2011 and was heard thrice on earlier occasions and the respondents were directed to file counter affidavit. The respondents themselves have condoned non-participation of the petitioner in the counseling for reasons and explanations made in the representations. There is no misrepresentation on behalf of the petitioner. Further more, he has also worked for four years and there has been no complaint. There is no dispute that the petitioner had secured more than the required 58% marks for being included in the merit list. It would not be appropriate in the facts of the case to relegate the petitioner at this juncture to the forum of appeal on consideration of grounds noticed above. The impugned order terminating the services of the petitioner Patna High Court CWJC No.8464 of 2011 (6) dt.04-03-2013 7 Bishwanath Paswan is set aside and he is directed to be reinstated in service.

The petitioner would be entitled to salary from the date he gives his joining. In the result, C.W.J.C. No.8464 of 2011 is allowed to the extent indicated above. The case of the petitioners Nand Kishore Ram and Manoj Kumar Rajak are slightly different then the case of the petitioner Bishwanath Paswan inasmuch as both of them missed two counselings in spite of their names being included in the first as well as second select list. The respondents have rightly submitted that the issue would be one of facts and the petitioners Nand Kishore Ram and Manoj Kumar Rajak would be required to explain their absence in successive counseling which would require marshalling of facts. The two petitioners have already preferred an appeal as well. In the facts and circumstances of the case, as the issue requires consideration of facts, the petitioners as well may pursue their appeal. With the aforesaid liberty, C.W.J.C.No.8652 of 2011 and C.W.J.C.No.8669 of 2011 are disposed of.

The services of petitioner Sangam Lal Rajak, (C.W.J.C. No.9274 of 2011) was terminated on the ground that on verification it was found that he had obtained less than 58% of Patna High Court CWJC No.8464 of 2011 (6) dt.04-03-2013 8 marks on evaluation as per the criteria mentioned in rule 6 of Bihar Zila Parishad Secondary and Higher Secondary Teacher (Employment and Service Conditions) Rules, 2006. The petitioner controverts the stand of the respondents that he had less than 58% of marks. He asserts that he had obtained more than 58% of marks and as such the respondents had rightly included him in the selection list and had offered appointment letter. The petitioner states that as appointment was made on the basis of evaluation of academic performance, he can amply prove and satisfy that he was entitled to more than 58% of marks, which conclusion was rightly arrived at, at the time of selection and preparation of merit list.

Taking into consideration the assertion made by the petitioner that correct evaluation would show his marks at 59% much more than 58% required for being included in select list, I remit the case to the Selection Committee/Appropriate Authority for fresh consideration of the petitioner’s case in accordance with law. In case the petitioner is able to prove that he would obtain 58% or more marks as per criteria laid down, the Appropriate authority would direct his reinstatement in service. Pending fresh adjudication of the matter, the operation of the impugned order contained in memo no.240 dated 31.3.2011 Patna High Court CWJC No.8464 of 2011 (6) dt.04-03-2013 9 passed by the Regional Deputy Director (Education), Purnea Division, Purnea shall remain stayed. With the aforesaid observations and directions, C.W.J.C. No. 9274 of 2011 stands disposed of. KHAN/- (Samarendra Pratap Singh, J)