Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18926 of 2013 ====================================================== Md. Almash Hussain Ansari @ Almash Hussain, Son of Late Samrul Haque Ansari, resident of village- Lahagaria P.O.- Manman, Via- Barsoighat, P.S.- Barsoi, Dist.- Katihar. Versus 1. The State of Bihar, through the Principal Secretary, Human Resources .... .... Petitioner/s Development Department, Government of Bihar, Patna 2. The Director, Primary Education, Bihar, Patna 3. The District Teacher Emplacement Appellate Authority, Katihar through Its Member 4. The District Education Officer, Katihar 5. The District Programme Officer (Establishment), Katihar 6. The Block Development Officer, Balrampur, Katihar 7. The Block Education Extension Officer, Balrampur, Katihar 8. The Mukhiya, Gram Panchayat Raj Shahpur, Balrampur, Katihar 9. The Panchayat Secretary, Gram Panchayat Raj Shahpur, Balrampur, Katihar 10. The Headmaster, Naya Primary School Benabari Shahpur, Balrampur, Katihar . .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s
Legal Reasoning
: Mr. Bhola Prasad, Advocate. Mr. Mukesh Kumar Jha, Advocate. For the Respondent/s : Mr. Shashi Bhushan Kumar, S.C. 7 Mr. A.K.Mishra, A.C. to S.C. 7. ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 12-11-2013 Heard learned counsel for the parties. The petitioner in this writ application has assailed the order passed by the District Teacher Employment Appellate Tribunal in Appeal No. 222 of 2012 whereby and whereunder the case of the petitioner for his being appointed and continued as Panchayat Teacher has been rejected. 2 Patna High Court CWJC No.18926 of 2013 (2) dt.12-11-2013 2 / 5 Mr. Bhola Prasad , learned counsel for the petitioner, has submitted that the Tribunal has committed an error in non- suiting the petitioner only on the ground that he could not produce appointment letter whereas the fact remains that the petitioner had fully explained the reason for non-production of his appointment letter . Mr. Prasad has submitted that as a matter of fact after the petitioner was appointed on 30.12.2010 on vacancy created due to removal of one Fanishwar Nath Das, his original appointment letter was taken and retained by the Block Education officer who did not return it to the petitioner and the Headmaster of the school where the petitioner had posted also, did not allow the petitioner to join. Mr. Prasad in this regard has also relied upon two documents namely, Annexure-2- a compilation of the details of all the candidates which also contains letter no. and the date of appointment of the petitioner as also the name of the petitioner showing appeal filed before the Tribunal. On the other hand, while supporting the order of the Tribunal, learned counsel for the State has submitted that the concluded finding of fact recorded by the Tribunal on the basis of the material on records cannot be lightly interfered by this Court because the Tribunal had held that the petitioner as a matter of fact was never appointed. He has also submitted that the story of the petitioner in handing over his original appointment letter to the Block Education Officer in relation to an appointment on the post of Panchayat Teacher does not seem to be correct because the joining by a Panchayat Teacher is not to be given before a Block Education Officer and in fact such a Panchayat Teacher was required to submit joining report to Headmaster of the school in terms of appointment letter issued by Panchayat Secretary and Mukhia. 3 Patna High Court CWJC No.18926 of 2013 (2) dt.12-11-2013 3 / 5 In the considered opinion of this Court a dispute in the nature as to whether the petitioner was ever issued an appointment letter is a question of fact and since the petitioner had claimed existence of such an appointment letter, it was for him to prove the same either by producing his appointment letter or a photocopy thereof or at least leading the evidence to show that after the service of Fanishwar Nath Das was terminated on 23.12.2010 and a resultant vacancy had emerged, the prescribed procedure for appointment of Panchayat Teacher was undergone. The petitioner however had miserably failed to adduce any evidence to show that the prescribed procedure for appointment was undergone and therefore merely on the basis of an alleged statement prepared by the Block Education Officer sometime in the month of February 2012 as contained in Annexure-2 containing the name of the petitioner it could not have been proved the appointment of the petitioner. The matter can be viewed from another angle inasmuch as if the petitioner was appointed on 30.12.2010 and had gone to submit his joining, there was no requirement for him to give his appointment letter to Block Education Officer because for Panchayat Teacher, the appointing Unit is the Panchayat and joining has to be accepted by the Headmaster in question. Therefore, it remains a mystery as to how the petitioner could have gone to the Block Education Officer for submission of his joining so as to enable the Block Education Officer to retain the original copy of appointment letter of the petitioner. In any event, if the case of the petitioner is believed that a vacancy had emerged on 23.12.2010 on account of removal of Fanishwar Nath Das, there is nothing on record to show that the prescribed procedure under Bihar Panchayat Elementary Teacher 4 Patna High Court CWJC No.18926 of 2013 (2) dt.12-11-2013 4 / 5 (Employment & Service Conditions) Rules, 2006 was undergone for filling up the resultant vacancy. The list which has been produced by the petitioner, in fact, goes to show that even persons having lesser marks or being placed below in the panel were already appointed on 14.08.2010 and the petitioner possessing qualification Intermediate was not appointed whereas Manirul Haque and Prabha Rajdhar had already been appointed on 14.08.2010. In that view of the matter, it does not stand to reason as to why the appointment of the petitioner was made on 30.12.2010 in isolation without considering the case of any other person. At least nothing has come on record to show that within a period of seven days after emerging of the vacancy, the Panchayat had taken the steps for filling up the vacant post of Fanishwar Nath Das by way of appointment of the petitioner. In that view of the matter, the finding recorded by the Tribunal to the following effect:- ^^mHk; i{kksa ds fo}ku vf/koDrkvks a dk iw.kZ cgl lqukA vfHkys[k dk voyksdu fd;kA iapk;r lfpo us Hkh vfHkys[kh; izek.k ds lkFk Li"V fd;k gS vihykFkhZ dk uke es/kk lwph esa rFkk dkmaflfyax iath es a vafdr ugha gS vkSj dkmaflafyax esa vihykFkhZ vuqifLFkr FkkA blfy, mldk fu;kstu ugha gqvk gsA es/kk lwph rFkk dkmaflafyax iath esa vihykFkhZ dk u rks uke afdr gS vksj u gLrk{kj gh gSA ftlls Li"V gksrk gS fd og dkmaflafyax esa vuqifLFkr FkkA blds vfrfjDr dkmaflafyax iath esa of.kZr eSfVzd] bUVj] izf'k{k.k ,oa vuqHko dh dafMdk esa vihykFkhZ ds fo"k; esa dqN Hkh vafdr ugha gS ftlls Li"V gksrk gS fd izfroknhx.k dk dFku vihykFkhZ dkmaflafyax dh frfFk esa vuqifLFkr FkkA vr% vihykFkhZ dk nkok fujk/kkj gks tkrk gSa blds vfrfjDr vihykFkhZ us vius fu;kstu ls lacaf/kr fu;qfDr dk dksbZ Hkh izek.k i= ;k fu;qfDr i= dh Nk;k izfr Hkh vfHkys[k es a layXu ugha fd;k gS ftlls Li"V gks lds fd mldk fu;kstu gqvk FkkA bl laca/k ekuuh; mPp U;k;ky; iVuk ds 5 Patna High Court CWJC No.18926 of 2013 (2) dt.12-11-2013 5 / 5 C.W.J.C. No. 5921/008 lgtknh [kkrqu cuke jkT; ljdkj ,oa vU; esa fnukad 11-07-2008 dks ikfjr vkns'k ds vkyksd esa ekuo lalk/ku fodkl foHkkx fcgkj iVuk ds fo}ku iz/kku lfpo vatuh dqekj flag ds Kkikad 7@eq- 1&571@08 ek- iVuk fnukad 19&11&2008 ds }kjk dkmaflafyax esa ;fn dksbZ vihykFkhZ vuqifLFkr gqvk gS vkSj mifLFkfr ds lanHkZ es a dksbZ vfHkys[kh; izek.k izLrqr ugha fd;s tkus ij vihykFkhZ dk nkok fujk/kkj gks tkrk gS tSlk fd mijksDr of.kZr C.W.J.C. esa vihykFkhZ lgtknh [kkrqu dk nkok [kkfjt fd;k x;k gSA fu"d"kZr% vihykFkhZ dk vihyokn la[;k 222@2012 ewy vfHkys[k dk voyksdu dj lla?k"kZ [kkfjt fd;k tkrk gSA** cannot be said to be erroneous either on fact or in law. The Tribunal infact has examined the issue with the help of original records including the merit list and counselling register and has recorded a finding that the prescribed procedure was never gone into for filling up the vacancy and infact the petitioner was never appointed. Let it be noted that the Government has banned any appointment on the post of Panchayat/Prakhand Teacher at second phase after 31.12.2010 and therefore, this Court in view of the inclusion of the said post in the third phase is also not inclined to issue any direction for considering the case of the petitioner on the post of Panchayat Teacher. Considering all these aspect, this Court does find any merit in the writ application. It is, accordingly, dismissed. Sujit/- (Mihir Kumar Jha, J)