Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3232 of 2013 ====================================================== 1. Gariban Ranjan S/O Late Hari Paswan R/O Village- Garai Sarai, P.O.- Gadai Sarai, Block- Hajipur, District- Vaishali 2. Sanjay Kumar S/O Shri Jagnarayan Paswan R/O Village- Garai Sarai, P.O. Garai Sarai, Block Hajipur, District- Vaishali Versus .... .... Petitioners 1. The State Of Bihar 2. Human Resource Department Through Its Principal Secretary Patna Secretariat, Patna 3. Principal Secretary Department Of Human Resource, Patna Secretariat, Patna 4. Panchayat Secretary Department Of Human Resource, Patna Secretariat, Patna 5. Block Education Extension Officer, Mahua, Distt.- Vaishali 6. Secretary, Panchayat Techer Niyojan Unit Panchayat Singara, Mahua, Vaishali 7. District Education Officer, Vaishali 8. Prahlad Paswan S/O Lam Sudi Paswan Panchayat Teacher In Panchayat Singara North, Mahua, District- Vaishali, R/O Village- Mukudpur,Singhara, P.O.- Singara, Block Mahua, Distt.- Vaishali .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mrs. Soni Shrivastava, Adv. For the State : Mr. Dhurendra Kumar, AC to SC16 For respondent no.8 : Mr. Subodh Kumar Jha, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 6 11-09-2013 Heard learned counsel for the parties. In this writ application the petitioners have assailed the order passed by the District Teachers Employment Appellate Tribunal, Vaishali dated 22.6.2011, as contained in Annexure 6, whereby and whereunder their complaints have been rejected by the Tribunal on the ground that their applications for the post of Panchayat Teacher were not received in the concerned Panchayat.
Legal Reasoning
no.8 by rejecting the application of the petitioners was prima facie unjustified. Normally having arrived at such finding this Court could have straightway quashed the appointment of respondent no.8 and directed appointment of petitioner no.1, inasmuch as he has higher marks both than respondent no.8 as also petitioner no.2. There is no difficulty that there is only one post year-marked for Scheduled Caste candidate on which either appointment of petitioner no.1 or petitioner no.2 or respondent no.8 could have been made. Mr. Jha, however, has however produced the copy of the merit list for the post of Scheduled Caster candidates which shows that ten persons were zeroed in the category of Scheduled Caste, namely, Vishwanath Paswan with 60.88% marks, Mithilesh Paswan with 60,55% marks, Ajay Kumar Rajak with 54.11% marks, Sunita Kumari with 58.66% marks, Manjit Kumar Paswan with 50.88% marks, Ranjeet Paswan with 49.11% marks, Prahlad Paswan (respondent no.8) with 47.66% marks, Subodh Kumar Patna High Court CWJC No.3232 of 2013 (6) dt.11-09-2013 6 Ram with 47.55% marks, Ranjeet Kumar with 47.33% marks and Parwati Kumari with 47.33% marks. Let it be noted that there were two vacancies of the Scheduled Caste out of which one was exclusively reserved for Scheduled Caste female and therefore, the cases of Sunita Kumari and Parwati Kumari could have been considered against that post or even on the other post had they got the highest marks. As on date petitioner no.1 on account of his having 54.22% marks would be figuring at Serial No.3 of the panel and likewise petitioner no.2 having 49.77% marks would be figuring at Serial No.6 of the panel. The post of Scheduled Caste female is not in dispute and therefore, the only other post of Scheduled caste which can be filled up either by a male or female candidate having the highest marks must go to the best candidate. The Tribunal, however, has not gone into this aspect because it had straightway rejected the case of the petitioners on the ground that it did not find any objection filed by the petitioners to the merit list. The question however was that if the order of the Tribunal itself was not complied by the Panchayat by including the name of the petitioners in the list of candidates, there was no occasion for them to file an objection to the merit list. The order of the Tribunal, therefore, cannot be sustained either on fact or in law. Patna High Court CWJC No.3232 of 2013 (6) dt.11-09-2013 7 The impugned order passed by the Tribunal, therefore, is set aside and the matter is remitted back to the Tribunal to decide the complaint of the petitioners in the light of the observations and findings given above and the Tribunal must make its best of efforts to decide the case expeditiously but only after giving notice to all those persons included in the merit list having higher marks than both the petitioners and respondent no.8. Since respondent no.8 has already been appointed and is continuing on the said post, his further continuation and payment of salary will abide by the result decided by the Tribunal. With the aforementioned observation and direction, this
Arguments
Mrs. Soni Srivastava, learned counsel appearing on behalf Patna High Court CWJC No.3232 of 2013 (6) dt.11-09-2013 2 of the petitioners, has submitted that the Tribunal while passing the aforementioned order dated 22.6.2011 has completely failed to take into account its own earlier order dated 2.10.2009/ 27.4.2010, as contained in Annexure 3, whereby and whereunder this very grievance of the petitioners of their application being not entertained by the concerned Panchayat was gone into by the Tribunal and it was held that refusal of acceptance of the application filed by the petitioners within time (on 11.11.2008) by the concerned authority of Panchayat was wholly illegal and that their cases should be considered alongwith the other candidates because they had secured higher marks. She has further submitted that in view of the aforementioned findings already arrived by the Tribunal on 2.10.2009, vide Annexure 3 to the writ application, the Tribunal in all fairness ought to have not decided the case in a very summary manner unless it was satisfied that the order dated 2.10.2009/ 27.4.2010 despite being communicated was not acted by the Panchayat on account of any deliberate lapse or latch on the part of the petitioners. According to her there is, however, no such finding recorded by the Tribunal in the impugned order dated 22.6.2011. In the considered opinion of this Court Mrs. Srivastava seems to be correct. As a matter of fact when this Court finds that Patna High Court CWJC No.3232 of 2013 (6) dt.11-09-2013 3 the private respondent no.8, Prahlad Paswan, with 47.66% marks has been appointed against the sole post year-marked for the Scheduled Caste category, whereas the two petitioners having 54.22% and 49.77% marks have been edged out, there would be little left for this Court but to accept the submission of Mrs. Srivastava that the cases of the petitioners were deliberately not considered in order to favour respondent no.8. Mr. Subodh Kumar Jha, learned counsel appearing on behalf of the private respondent no.8, however, has tried to wriggle out of the situation by explaining that mere endorsement of rejection on the registered cover allegedly containing the two applications of the two petitioners on 17.11.2008 should not have been accepted by the Tribunal without going into the content of that registered letter. In the considered opinion of this Court such submission would literally amount to sitting over the finding of the Tribunal already arrived by it in its earlier order dated 2.10.2009/ 27.4.2010. Since that order of the Tribunal has remained unassailed by anyone including respondent no.8 and has become final today that order cannot be indirectly challenged by respondent no.8, especially when the same had been passed by the Tribunal after perusing the evidence as is recorded therein. Patna High Court CWJC No.3232 of 2013 (6) dt.11-09-2013 4 Mr. Jha has then submitted that since the appointments were made on the same day in a large number of Panchayat and the petitioners were also applicants in their own Panchayat it cannot be said with certainty as to whether the petitioners had approached the authorities of the Gram Panchayat, Singhara North after issuance of the order dated 27.4.2010 and thus, the appointment of respondent no.8 on 13.8.2010 cannot be faulted because if the petitioners themselves had not taken steps for protecting their limited right which was given to them by the order of the Tribunal, they cannot complain before the Tribunal after appointment of respondent no.8 had been made. This submission of Mr. Jha would have made some headway if the petitioners had not moved the Tribunal both before appointment of respondent no.8 as also after appointment of respondent no.8. The case of the petitioners right from the beginning was that though they had higher marks and yet they are being edged out by rejection of the application and that is how the Tribunal in the first instance had directed the Gram Panchayat in question to consider the case of the petitioners. More over, the petitioners have brought on record a representation filed by them, vide Annexure 4, which would go to show that they were keen for consideration of case for appointment after the order of the Patna High Court CWJC No.3232 of 2013 (6) dt.11-09-2013 5 Tribunal was passed in their favour. Even otherwise a judicial notice can be taken of this fact that any unemployed person having been armed with an order would not have vested the opportunity of consideration for appointment so given by the Tribunal. This Court would, therefore, find that the appointment of respondent
Decision
application is disposed of. (Mihir Kumar Jha, J) surendra/-