Letters Patent Appeal No. 1757 of 2011 · Patna High Court · 2011
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1757 of 2011 In Civil Writ Jurisdiction Case No. 16239 of 2009 ====================================================== 1. Chhotu Paswan S/O Rajendra Paswan resident of Mindaur, P.S.- Chand, District- Kaimur, Bhabhua 2. Sabitri Kumari D/O Sarbjit Sah, resident of Patesar, P.S.- Chand, District-Kaimur, Bhabhua 3. Manisha Raj D/O Badri Nath resident of Basaha, P.S.- Chand, District- Kaimur, Bhabhua 4. Shashi Prabha D/O Awadh Bihari Singh resident of Bhararikala, P.S.- Chand, District- Kaimur, Bhabhua 5. Nasrin Praveen D/O Ali Hussain resident of Karji, P.S.- Chand, District- Kaimur, Bhabhua 1. State of Bihar Versus .... .... Appellants 2. The District Magistrate, Kaimur, Bhabhua 3. The Sub Divisional Officer, Kaimur, Bhabhua 4. The District Superintendent of Education-Cum-Sub Divisional Education Officer, Bhabhua 5. Block Development officer, Chand, Kaimur, Bhabhua 6. Block Education Extension Officer, Chand Kaimur, Bhabhua 7. Mukhiya, Gram Panchayat Bharari Kala, P.S.- Chand, District- Kaimur, Bhabhua 8. The Secretary, Gram Panchayat, Bharari Kala, P.S.- Chand, District- Kaimur, Bhabhua 9. Md. Sadakat Hussain, S/O Late Mubarak Hussain R/O Village- Karzi, P.S.- Chainpur, District- Kaimur, Bhabhua 10. The Member, District Appellate Forum, Kaimur, Bhabhua … Respondents /Respondents 1st Set. 11. Mintu Ansari S/O Late Nizam Ansari R/O Ward No. 22, Bhabhua, P.S.- Bhabhua, District- Kaimur, Bhabhua .... .... Petitioner/Respondent 2nd Set ====================================================== Appearance : For the Appellants
Legal Reasoning
: Mr. Surendra Kumar Singh, Advocate. 2 Patna High Court LPA No.1757 of 2011 (10) dt.01-08-2013 2 / 8 Mrs. Sudha Chandra, Advocate. For the State : Mr. Subhash Prasad Singh, G.A. 7 For the Respondent No. 9: Mr. Anirudh Kumar Singh, Advocate. For the Respondent No. 11: Dr. Kamaldeo Sharma, Advocate. ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 10 01-08-2013 This Appeal under Clause 10 of the Letters Patent has been preferred by the five Panchayat Teachers under the Gram Panchayat Raj- Bharari Kala P.S.-Chand, District- Kaimur against the order dated 17th October 2011 made by the learned single Judge in CWJC No. 16239 of 2009, with the permission of the Court. The matter at dispute is the appointment of the Panchayat Teachers made under the aforesaid Gram Panchayat Raj – Bharari Kala pursuant to the 2006 selection process. The said selection, particularly the selection of the respondent no. 9, Sadakat Hussain came to be questioned. According to the said challenge, the said Sadakat Hussain had secured employment by fraud and misrepresentation. Pursuant to several complaints made in respect of the said selection process, the District Magistrate constituted a Committee comprising Additional Collector, the Block Development Officer and the Block Education Officer. The Committee opined that the entire selection process was fraught with illegalities, forgery, fraud, favouritism and nepotism. The Committee, therefore, recommended cancellation of the appointments. Pursuant to the said recommendation, the District Superintendent of Education -cum -Sub Divisional Education 3 Patna High Court LPA No.1757 of 2011 (10) dt.01-08-2013 3 / 8 Officer, under his letter dated 14th September 2007, ordered cancellation of the said appointments. It appears that the said order was not carried out by the Mukhiya and the Secretary of the Gram Panchayat. The complainants, therefore, approached the District Teacher Employment Appellate Authority, Kaimur (hereinafter referred to as „the Appellate Authority‟) in appeal No. 63 of 2009. The Appellate Authority, under its order dated 24th September 2009, rejected the said appeal. The Appellate Authority did record the finding that the above referred Sadakat Hussain had secured employment by misrepresentation. However, he had got the certificate of Maulvi produced by him corrected later on. In view of the said correction, the complaint against the said appointment did not survive. Feeling aggrieved by the order of the Appellate Authority, the complainant Mintu Ansari approached this Court under Article 226 of the Constitution in CWJC No. 16239 of 2009. The learned single Judge has, having regard to the finding of irregularities in the selection process, allowed the writ petition. The learned single Judge has observed that the Appellate Authority committed a serious error in not considering the apparent illegality and in affirming the appointment of the respondent no. 9 (the aforesaid Sadakat Hussain). The learned single Judge directed the respondent authorities to conduct a fresh counselling and prepare a selection panel in accordance with law. Counselling was directed to be made of all the candidates on the merit panel. Feeling aggrieved by the aforesaid omnibus direction issued by the learned single Judge, some of the Panchayat 4 Patna High Court LPA No.1757 of 2011 (10) dt.01-08-2013 4 / 8 Teachers have preferred this Appeal. According to the appellants, their appointment as Panchayat Teacher made after following the due procedure as early as in 2009 is adversely affected by the impugned order, without affording opportunity of hearing to the appellants. In view of the controversy involved, the manner in which the aforesaid Sadakat Hussain has secured employment, this Court had, under order dated 25th June 2012, directed the respondent authorities to examine the credentials of the aforesaid Sadakat Hussain and to submit report. In compliance with the said direction, the District Programme Officer, Establishment, Kaimur has submitted a report on 16th October 2012. Under the said report, the District Programme Officer has referred to the illegality and misrepresentation committed by the said Sadakat Hussain and the factum of his getting the certificate corrected after the illegality was noticed by the authorities below. The reporting officer has opined that the certificate of Maulvi produced by the said Sadakat Hussain being valid qualification, the appointment of Sadakat Hussain is legal and valid. The report has been furnished to the learned advocate Mr. Anirudh Kumar Singh representing the respondent no. 9, Sadakat Hussain. The report has not been controverted by the respondent no. 9. We are at pains to note that neither the Appellate Authority nor the District Programme Officer, Establishment, Kaimur has taken the matter with due seriousness. Both the authorities, having noticed the gross illegality committed by the aforesaid Sadakat Hussain, has condoned the said illegality by noticing that the certificate of Maulvi presented by the said Sadakat Hussain was later on corrected. Both the authorities have 5 Patna High Court LPA No.1757 of 2011 (10) dt.01-08-2013 5 / 8 carefully ignored that the said Sadakat Hussain obtained employment by fraud and misrepresentation. When illegality was detected, he tried to cover the same by getting the certificate corrected, that too is not permissible under the law. The appellant has brought on record the relevant documents to establish that the respondent no. 9, Sadakat Hussain has secured employment by fraud and misrepresentation. On the record, we find the certificate issued by the Bihar School Examination Board indicating that the said Sadakat Hussain had taken SSC examination in 1995 but had failed. He passed the supplementary examination in 1995. The passing certificate records his date of birth as that of “28-11-1979”. The mark-sheet indicates that the said Sadakat Hussain barely managed to pass the examination. In the application for appointment as Panchayat Teacher made by the said Sadakat Hussain, he wrote his date of birth as “02-05-1987”. The same has been scored off and the date “28-11-1979” has been written. The qualification mentioned is that of Fokania and Maulvi obtained from the Madarsa Board in 2004 and 2006 respectively. The certificate of Maulvi issued by the Madarsa Board in 2006 records his date of birth as “02-05-1987”. It appears that the said Sadakat Hussain having barely managed to pass the SSC examination in supplementary examination in 1995, he joined the course in Fokania and Maulvi by indicating date of birth as that of “02-05-1987”. The same date appears in the certificate issued by the Madarsa Board. The same certificates were produced for appointment as Panchayat Teacher and the date of birth in the application was mentioned as that of “02-05-1987”. It has also come on record that the said Sadakat 6 Patna High Court LPA No.1757 of 2011 (10) dt.01-08-2013 6 / 8 Hussain is the nephew of the Panchayat Secretary. Thus, the appointment of the said Sadakat Hussain was not only the result of fraud and misrepresentation, but also of favouritism and nepotism. Although the said irregularities were noticed by the Appellate Authority, the Appellate Authority turned a blind eye on a specious ground that the certificate of Fokania and Maulvi were later on corrected. The same is the story with the District Programme Officer who too has turned a blind eye to the gross illegality committed in appointment of the said Sadakat Hussain. We do appreciate that the appellants before us had no opportunity of hearing before the learned single Judge. The order of the learned single Judge would definitely prejudice the entire selection made pursuant to the 2006 selection process. Having considered the large scale illegalities including favouritism and nepotism committed by the selection committee, we are of the opinion that such a selection process could not have been saved by the Appellate Authority. The District Superintendent of Education had, as early as in September 2007, directed the Panchayat to cancel the selection, but the Panchayat desisted. For such large scale irregularities and illegalities committed in the selection process, the only thing fair is to cancel the selection and appointments and to make appointments afresh. It is not possible to examine each case individually; nor the principles of natural justice would be attracted. Reference may be had to the judgment of the Hon‟ble Supreme Court in the matter of Union Territory of Chandigarh vs. Dilbagh Singh & Ors.; {(1993) 1 SCC 154}. We are of the opinion that irrespective of the appellants and such others serving as Panchayat Teachers for nearly five years, the entire selection process deserves to be set 7 Patna High Court LPA No.1757 of 2011 (10) dt.01-08-2013 7 / 8 aside. In the aforesaid circumstances, we affirm the order of the learned single Judge to the extent, the learned single Judge has set aside the entire selection process. Appointment of the respondent no. 9, Sadakat Hussain is cancelled. His service stands
Decision
terminated forthwith. We direct that all the posts will be filled in by a fresh recruitment process i.e. all the posts will be advertised and recruitment will be made afresh in accordance with law. We are conscious that this order shall create ripples in respect of the elementary education in Gram Panchayat – Bharari Kala. The education being paramount, we would not like the elementary schools to be without the teachers. We, therefore, direct that the Panchayat Teachers in Gram Panchayat- Bharari Kala now working as such, except the aforesaid Sadakat Hussain, will continue and serve as Panchayat Teachers till the recruitment process afresh is completed and fresh appointments are made. It is clarified that the service of such Panchayat Teachers will be treated as ad hoc and no right to appointment shall accrue on account of their service being continued under this order. All these teachers will have to make room for fresh appointees as and when they are appointed. We further direct that the respondent no. 9, Sadakat Hussain will not be allowed to participate in the fresh recruitment process nor will he be appointed as Panchayat Teacher under the Gram Panchayat- Bharari Kala. The recruitment process will be completed within four months from today. Appeal stands disposed of in the above terms. Interim relief stands vacated. 8 Patna High Court LPA No.1757 of 2011 (10) dt.01-08-2013 8 / 8 Registry will send copy of this order to the respondent nos. 2, 3,4,5,6, and 7 forthwith. (R.M. Doshit, CJ) (Ashwani Kumar Singh, J) Sujit/-