Letters Patent Appeal No. 424 of 2013 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.424 of 2013 In Civil Writ Jurisdiction Case No. 16444 of 2009 ====================================================== 1. Mukesh Kumar Son Of Sri Bindeshwar Singh Resident Of Village Husepur, P.O. Paigambarpur, P.S. Sakra (Bariyarpur O.P.), District Muzaffarpur .... .... Appellant/s Versus 1. The State Of Bihar Through The Director, Human Resources Department, Government Of Bihar, Patna 2. The Member, District Teachers Employment Appellate Authority, Muzaffarpur 3. The Director, Primary Education, Government Of Bihar, New Secretariat, Patna 4. The District Magistrate, Muzaffarpur 5. The District Superintendent Of Education, Muzaffarpur 6. The Block Development Officer, Sakra Block, District Muzaffarpur 7. Block Education Extension Officer, Sakra Block, District Muzaffarpur 8. The Panchayat Secretary, Gram Panchayat Raj Paigambarpur, Block Sakra, District Muzaffarpur 9. The Mukhia Gram Panchayat Raj Paigambarpur, Block Sakra, District Muzaffarpur 10. Smt. Pushpa Kumari Wife Of Mithilesh Kumar Village Husepur, P.S. Sakra, P.O. Paigambarpur, District Muzaffarpur .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Ajay Kumar Thakur, Adv. Mr. Imteyaz Ahmad, Adv. Mr. Nilesh Kumar, Adv. For the State : Mr. Devendra Kumar Sinha, Sr. Adv. For Respondent nos. 8 & 9 : Mr. Vijay Kumar Singh, Adv. Mr. Pankaj Kumar Singh, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA and HONOURABLE MR. JUSTICE VIKASH JAIN ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 3 21-06-2013 We have heard counsel for the Appellant and the appearing respondents. No one appears on behalf of respondent no. 10 despite valid service of notice. 2
Legal Reasoning
Patna High Court LPA No.424 of 2013 (3) dt.21-06-2013 2 / 6 The Appellant was terminated from the post of Panchayat Shikshak on 17.12.2007. The District Teachers Appointment Appellate Authority, Muzaffarpur, by its order dated 16.10.2009 in Appeal No. 1643 of 2009, declined to interfere. C.W.J.C. No. 16444 of 2009 questioning the same has also been dismissed on 29.1.2013 giving rise to the present Appeal. The order under Appeal simultaneously rejects C.W.J.C. No. 15204 of 2009 preferred by respondent no. 10 questioning her termination also. Learned counsel for the Appellant makes a short submission that if the termination of his appointment was on specified and disclosed grounds, the Tribunal could have not tested the validity on other grounds. Counsel for the State submitted that if there has been any procedural infirmity by taking into consideration materials beyond the order of termination, the matter may be remanded to the authorities for fresh consideration. The appellant came to be appointed as a Shiksha Mitra in the year 2003. The report dated 25.6.2007 of the District Superintendent of Education, Muzaffarpur, it is revealed that the appellant and respondent no. 10, both had 600 marks while being considered for appointment. The authorities opined that if both were equally situated, the date of birth of respondent no. 10 being earlier she should have been appointed. On 1.7.2006, the appellant acquired the 3 Patna High Court LPA No.424 of 2013 (3) dt.21-06-2013 3 / 6 status of a Panchayat Shikshak as a working Shiksha Mitra under the Bihar Panchayat Primary Teachers (Appointment and Service Conditions) Rules, 2006. His appointment was then terminated on 17.12.2007 on the aforesaid ground and also for violation of roster. On 7.1.2008, the Block Education Development Officer wrote to the District Superintendent of Education after making enquiry as directed that the appointment of the appellant was valid and according to roster. Respondent no. 10 was Intermediate and the Appellant an M.A. The order for termination dated 17.12.2007 of the Appellant was therefore not in consonance with the law. When no action was taken on the same, the petitioner approached this Court in C.W.J.C. No. 2797 of 2009 and was relegated to the remedy of Appeal before the Tribunal. We have gone through the pleadings in the writ application and the counter affidavit filed to the same as also the order of the Tribunal. The correctness of the report dated 7.1.2008 referred to hereinabove by us has not been denied in the counter affidavit to the writ petition. Dealing with
Decision
Paragraph-26 of the writ petition regarding the document, the counter affidavit at Paragraph-6 states that it needs no comment. We also find that the report dated 7.1.2008 finds no consideration by the appellate Tribunal also. The termination was based on two grounds:- (a) 4 Patna High Court LPA No.424 of 2013 (3) dt.21-06-2013 4 / 6 that the appellant was junior by date of birth to respondent no. 10 and (b) that his appointment was bad for violation of the roster. In so far as the first ground is concerned, it looses its relevance after respondent no. 10 has been terminated and upheld by the Tribunal that she was basically ineligible to be considered for appointment being a Ward member at the relevant point of time. In so far as the second ground is concerned, the order of the Tribunal stands completely vitiated when it fails to take the report dated 7.1.2008 into consideration eschewing a relevant material. If the order for termination was based on the aforesaid grounds, the Tribunal could not have created a third case for itself that the appellant was ineligible for appointment on the ground that he was an L.I.C. agent at the relevant time. We need not consider whether being an L.I.C. agent was an ineligibility or not for the simple reason that it was not the ground for termination. While it was not open for the Tribunal to create a third case different from what the authorities had brought before it, it is not open for the respondents before the Court to support the termination on another ground not mentioned in the order of termination. We are therefore not persuaded to consider the submission of the respondents that the matter be remanded. In (2001) 1 SCC 610 (State Govt. Houseless Harijan Employees Association Vs. State of Karnataka and 5 Patna High Court LPA No.424 of 2013 (3) dt.21-06-2013 5 / 6 Ors.) it has been held at Paragraph-49 as follows:- “49. The basis on which the learned Single Judge dismissed the appellant’s writ petition was that there was no approval of the appropriate Government to the acquisition, namely, the absence of the third factor noted above. This was not the ground on which withdrawal from the acquisition had been made and it was not open to the State Government to justify its decision on any other ground. As held by this Court in Mohinder Singh Gill vs. Chief election Commr. a “When statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out” The Tribunal could not have created a third case with regard to the LIC agency not mentioned in the termination order as held in (1977)3 SCC 532 (Siddu Venkappa Devadiga V. Rangu S. Devadiga) observing as follows:- “8……………It is well-settled, having been laid down by this Court in Trojan and Co. Ltd. V. RM. N.N. Nagappa Chettiar and Raruha Singh V. Achal Singh that the decision of a case cannot be based on grounds outside the plea of the parties, and that it is the case pleaded which has to be found. The High Court therefore went wrong in ignoring this basic principle of law, and in making out an entirely new case which was not pleaded and was not the subject-matter of the trial.” 6 Patna High Court LPA No.424 of 2013 (3) dt.21-06-2013 6 / 6 Similar view has been taken in A.I.R. 1978 Patna 351 (Sheikh Abdul Sattan Vs. Bibi Rahazani & Ors.) observing at Paragraph-2 as follows:- to travel beyond “2. ………….A party cannot the be allowed pleadings…………It is clear that the District Judge made out a new case for the plaintiff-respondent 1st party which had no foundation in the plaint. It is well settled that the decision of a case cannot be based on grounds outside the plea of the parties and that it is the case pleaded which was to be found: Siddu Venkappa Devadiga vs. Smt. Rangu S. Devadiga, AIR 1977 SC 890…..” We have arrived at the finding that the termination was wrong and contrary in law, but was effected after the appellant acquired the status of a Panchayat Shikshak and the order of the Tribunal as well as the termination are unsustainable, the Appellant stands reinstated as a Panchayat Shikshak. The orders dated 17.12.2007, 16.10.2009 and 29.1.2013 are set aside. The Appellant stands reinstated. The Appeal is allowed. (Navin Sinha, J) (Vikash Jain, J) P. Kumar/-