Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No. 14195 of 2012 ====================================================== Renuka Kumari, W/o Pankaj Kumar Choudhary, R/o Village- Chakdah, P.S.- Rajnagar, District- Madhubani .... .... Petitioner 1. The State of Bihar Versus 2. The Director, Primary Education, Government of Bihar, Patna 3. The District Magistrate, Madhubani 4. The District Education Officer, Madhubani 5. The District Programme Officer (Establishment), Madhubani 6. Block Development Officer, Madhubani 7. The Block Education Officer, Madhubani 8. The Member, District Teachers Employment Appellate Authority, Madhubani 9. The Mukhiya, Ranti Gram Panchayat, Rajnagar, Madhubani 10. The Panchayat Secretary Branti Gram Panchayat, Rajnagar, Madhubani 11. Sudha Kumari, W/o Laxminath Mishra, R/o Village- Chakdah, P.S.- Rajnagar, District- Madhubani .... .... Respondents ====================================================== Appearance : For the Petitioner : Mr. Gagan Deo Yadav, Advocate For the Respondent No.11 : Mr. T. N. Maitin, Sr. Advocate Ms. Anju Mishra, Advocate For the State ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA
Legal Reasoning
: Mr. Kundan Bhadur Singh, SC 22 ORAL ORDER 7 24-09-2013 Heard counsel for the parties. The petitioner being aggrieved by an order dated 29.06.2013 passed by the District Teacher Employment Appellate Authority, Madhubani (hereinafter referred to as the “Tribunal”) in Patna High Court CWJC No.14195 of 2012 (7) dt.24-09-2013 2/13 Appeal Case No. 836/08/11 has moved before this Court primarily on three rounds, namely; (i) the Tribunal had failed to take into account that the petitioner was one of the 11 candidates who were present in course of counselling held on 28.02.2009 whereas the private respondent no. 11 despite service of notice of counselling had chosen not to appear for such counselling, (ii) and since the counselling of others including the petitioner was held on 28.02.2009 and the respondent no. 11 in her complaint filed before the Tribunal had nowhere stated that she had not attended the counselling at any other appointing unit, Panchayat or Prakhand, the Tribunal ought to have not entered into speculation by assuming that since the house of the respondent no. 11 was existing at 500 yards it could not be imagined that the respondent no. 11 could not have turned up for the counselling if such notice was on her; and (iii) the petitioner was in fact the best candidate in the general category inasmuch as she belonged to the economically backward category for which there was no vacancy but even her selection and appointment on the basis of her highest marks in the General category cannot be faulted specially when the procedure of counselling and other procedure was followed not only in the Patna High Court CWJC No.14195 of 2012 (7) dt.24-09-2013 3/13 case of the petitioner but also four others who were appointed along with the petitioner. Learned counsel for the State has filed the counter affidavit and the supplementary counter affidavit wherein it has been stated that the finding arrived by the Tribunal with regard to the petitioner having lesser marks than respondent no. 11 and respondent no. 11 not having given the notice of counseling would automatically lead to inescapable conclusion that appointment of petitioner was bad both in fact and in law. Learned counsel for the State in this regard has submitted that whatever records were available in the Panchayat would and produced before the Tribunal would go to show that some sort of selection procedure was followed but then as most of the documents were claimed to be missing and there is a new Panchayat Secretary who was not handed over the charge and the entire documents relating to earlier appointment by his predecessor. Learned counsel for the respondent no. 11, on the other hand has submitted that the finding of the Tribunal in setting aside the appointment of the petitioner is based on cogent reasons and that should not be lightly interfered by this Court specially when the respondent no.11 had successfully proven that the petitioner was given 20 additional weightage points on the basis of and Patna High Court CWJC No.14195 of 2012 (7) dt.24-09-2013 4/13 experience certificate which by itself did not inspire confidence inasmuch as the same was issued only on the basis of an affidavit filed by the petitioner herself. As with regard to the story of the counselling she has submitted that when the Panchayat Secretary did not issue the required notice as required in the press communiqué as issued by the education department in the newspaper, it would be very difficult to anyone to prove that such alleged counselling was actually held. In the considered opinion of this Court the Tribunal had to first decide as to whether the procedure for appointment of the Panchayat Teacher was done in view of the Bihar Panchayat Primary Teacher( Appointment and Service Conditions) Rules, 2006 (hereinafter referred to as the “Rules). At least the Rules envisages publication of advertisement, inviting application, its being scrutinized and, thereafter, preparation of a draft merit list and inviting objection thereto before preparation of final merit list. Counselling in fact comes as a last step. In fact this aspect of the matter gets clarified in the counter affidavit filed by the Director, Primary Education who was specifically directed to file affidavit stating as to whether any appointment could be made on 13.08.2010 on the basis of counselling held on 28.02.2009. In this regard, the Director, Primary Education has fully explained which Patna High Court CWJC No.14195 of 2012 (7) dt.24-09-2013 5/13 being relevant for the purpose of this case is quoted herein below : “5. That with regard to the specific query made by this Hon’ble Court, it is most respectfully submitted that the present issue relates to 2nd phase appointment of Panchayat teachers under Rule 2008. 6. That it is stated and submitted that in follow up to the said Rule 2008, further guidelines had been issued by the department vide notification No. 3151 dated 25.08.2008 which laid down the different steps required to be followed in maters of selection /appointment of Panchayat teacher which in brief states that after receipt of applications, the same were to be complied, preparation of merit list and it is during the cause of preparation of merit list that candidates were to be called for verification of marks from their respective originals. That after preparation of final merit list, counselling of candidates was to be conducted on the date fixed during the course of which verification of educational certificates and selection of Schools for the purpose of posting was to letter of be made and employment to the candidates. issuance of thereafter 7. That it requires to be clarified that the initial procedure of verification of marks with its respective original as provided in the aforesaid notification dated 25.08.2008, in practice at the district level offices is loosely termed as counselling whereas counseling is the stage after preparation of merit list basically for the purpose of verification of educational certificates and for selection of schools as it stands clarified under Sub-Rule (XII) of Rule 2006. 8. That the advertisement published in the Newspaper on 8th July 2010 which had been in connection with of Panchayat/Pakhand teachers 2008 states the different dates fixed for counseling of different category of candidates. appointment phase 2nd 9. That thus in terms of the aforesaid advertisement, counseling of candidates was to be conducted on the different dates and thereafter letter of employment was to be issued.” From the reading of the aforementioned affidavit Patna High Court CWJC No.14195 of 2012 (7) dt.24-09-2013 6/13 coupled with statutory provisions of the Rules it becomes very clear that counselling is actually the last stage. This Court from the materials on record would however find that somewhat counselling has been done earlier and the merit list has been prepared thereafter. This become very clear from the documents produced by the respondent Panchayat Secretary which goes to show that the merit list of 106 candidates in all was prepared and signed on 15.12.2009 whereas the alleged counselling is said to have been held on 28.02.2009. It would, therefore, be very easy for this Court to hold that such counselling which was held prior to issuance of merit list was bad but then this Court would withhold from recording its conclusive opinion because there are documents produced by the respondent Panchayat Secretary before this Court which goes to show that there was yet another merit list which was prepared and sent to the office of the District Education Officer. It, therefore, becomes very clear that there was a fault on the part of the Panchayat Secretary and the Mukhia in projecting as with regard to availability of merit list as allegedly prepared and in any event its credibility becomes doubtful when persons having lesser marks were placed above which in turn would go to show that for preparation of the merit list the education qualification Patna High Court CWJC No.14195 of 2012 (7) dt.24-09-2013 7/13 which was not to be recognized under the order of the Government of Bihar and were to be removed from the merit list in fact were taken into consideration.
Decision
In view of the above one thing becomes very clear that on 15.12.2008 no merit list was finally prepared for being sent but thee is an indication that such merit list had been sent which was received by the officials of education department on or before 13.01.2009. Before this Court Mr. Ram Binod Mishra, Block Education Officer has appeared in person and has submitted that the merit list sent to Madhubani office of education department and that he has got no knowledge of such merit list which is referred in the resolution of the Panchayat Selection Committee dated 15.12.2008 inasmuch as the same may have been directly sent by the Panchayat Secretary to the district office of the Bihar Education Project at Madhubani. In that view of the matter, it was necessary for the Tribunal to look into the original records to find as to whether the procedure for preparation of final merit list as prescribed in the Rules was followed in letter and spirit. The Tribunal however has failed to do so and has proceeded on the basis of limited information given to it. In all fairness, if the Tribunal had itself Patna High Court CWJC No.14195 of 2012 (7) dt.24-09-2013 8/13 seen the existence of the merit list dated 15.12.2009 the story of the counselling as brought forward by the Panchayat Secretary and also supported by the petitioner to have been held on 28.02.2009 had to be disbelieved by the Tribunal but it had miserably failed to look into this crucial aspect. The further failure on the part of the Tribunal in examining the case of the petitioner vis-à-vis respondent no. 11 in true perspective is also reflected by a speculative finding wherein it has gone to hold that since the house of the respondent no. 11 was resident of a place adjacent at a distance of 500 yards from the Panchayat Bhawan, it was very difficult to presume that the counselling notice sent to the respondent no. 11 could not have been served on the respondent no. 11. The Tribunal in this regard failed to take into account that it was specific case of the respondent no. 11 that she had actually denied and opportunity to appear in the counselling held on 28.02.2009 and, therefore, there was factually an error with regard to service of notice under UPC so far it relate to the petitioner vis-à-vis respondent no. 11. In fact when the Tribunal has also left the matter in the half way by approving the experience certificate of the petitioner even without examining the relevant records, this Court would find it difficult to approve such order of the Tribunal for a simple Patna High Court CWJC No.14195 of 2012 (7) dt.24-09-2013 9/13 reason that if there was an doubt created about the experience certificate of the petitioner, the Tribunal had to go into the root of the matter. Such experience certificate of the petitioner as has been brought forward by the respondent no. 11 in her supplementary counter affidavit would itself go to show that the same was issued by the office of the District Mass Education Officer, Madhubani vide his letter no. 784 dated 13.11.2008 and was based on an affidavit filed by the petitioner that her such selection and appointment was as an Instructor in the non-formal education. In fact the said certificate was also to be examined after looking into the proof actually showing the petitioner working as an Instructor in the non-formal institution. If all these facts were mentioned in the experience certificate of the petitioner the Tribunal ought to have not only doubted it on the basis of the last line of the certificate which shows that such certificate was issued in view of this vacancy shown by the petitioner and the Tribunal ought to have directed the petitioner to produce the affidavit as also the documents referred to in the experience certificate. In the aforesaid circumstances when the Tribunal has proceeded in a most perfunctory manner, this Court will have difficulty in approving such order of the Tribunal which virtually takes away the appointment of the petitioner who had continued Patna High Court CWJC No.14195 of 2012 (7) dt.24-09-2013 10/13 on her part for a period of around three years. In nutshell as this Court has found that it is not only the petitioner vis-à-vis respondent no. 11 who are the best amongst the candidates and in fact the merit list is of 106 candidates whereas the alleged counselling notice has been sent to only 84 of them. This Court would according set aside the impugned order passed by the Tribunal and remit the matter back for reconsideration of the entire case of the petitioner vis-à-vis respondent no. 11 with specific reference to the entire selection procedure of Panchayat teacher in terms of Rule 9 of the Rules. The Tribunal will firstly look into as to whether a merit list prepared after publication of the draft merit list inasmuch as the register which has been produced before this Court and which is being handed over back to the Panchayat Secretary along with all the documents which has been produced before the Tribunal for effective reconsideration by the Tribunal, will go to show that at no point of time any draft merit list was prepared. In fact there is also no proof of even preparation of final merit list and its being published and therefore the Tribunal in all fairness will be required to go into the entire gamut of the process of selection and appointment of not only this petitioner but also all of others who were selected in the same selection process namely, Nitu Kumari, Patna High Court CWJC No.14195 of 2012 (7) dt.24-09-2013 11/13 Manoj Kumar, Ramnaresh Singh, Kamalnath Paswan, Baby Kumari, Gopal Krishna, about whom there is reference of selection and appointment in the proceeding dated 13.08.2010, 28.12.2010 and 29.12.2010. The Tribunal will also examine the experience certificate of the petitioner by not only calling for a report from the District Mass Education Officer, Madhubani but would also look into the documents produced by the petitioner as referred in her experience certificate such as her selection appointment and training as an Instructor in Non-Formal Education coupled with the proof of her actual working as an Instructor in the light of payment of remuneration made to her. After these documents are filed by the petitioner they will be sent to the District Mass Education Officer, Madhubani for its verification and the final decision on the merit point awarding of 20 weightage marks for experience to the petitioner will be taken by the Tribunal after considering all these materials. Finally the Tribunal will find out that if the appointment of the petitioner was vitiated on account of an invalid experience certificate which would took away 20 weightage marks and reduce her to 57.44%, it would not be required to go into the larger exercise of examining the appointment of others but if it finds that Patna High Court CWJC No.14195 of 2012 (7) dt.24-09-2013 12/13 the experience certificate of the petitioner is valid it may go to the larger issue by examining the entire selection procedure which may not only be confined to the case of the petitioner but all aforementioned persons who were appointed along with the petitioner and are still continuing on the basis of same selection process. If the Tribunal decides to take this recourse it would be necessary to issue notice to the aforementioned persons who are continuing on the basis of the same selection process as adopted as in the case of the petitioner. In the event, the Tribunal will find that the appointment of the petitioner is bad on account of award of 20 weightage points, to which she will not be entitled on account of the inadmissible experience certificate, the Tribunal will also look that as who is the best candidate for filling of these vacancies created on account of removal of respondent no. 11 and the petitioner. All this exercise will be completed by the Tribunal within a period of six months from the date of receipt of this order. The Panchayat Secretary, Ganga Prasad who is present in the Court is hereby directed to produce all the records before the Tribunal which has been kept in a sealed cover within a period of one week and the Tribunal shall commence its exercise as directed above on receipt of the copy of this order. Patna High Court CWJC No.14195 of 2012 (7) dt.24-09-2013 13/13 The impugned order passed by he Tribunal accordingly is set aside but it is made clear that since the petitioner was allowed to continue by an interim order of staying the operation of the order of the Tribunal, even though the petitioner may continue in service her salary shall be withheld till the final decision is taken by the Tribunal as directed above. With the aforesaid observations and direction this application is disposed of. (Mihir Kumar Jha, J) Ashwini/-