Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.1055 of 2012 ====================================================== Tripurari Prasad S/O Harinandan Mandal Resident Of Village- Boudhi Thika (Kharainch), P.S- Khaira, District- Jamui. .... .... Petitioner Versus 1. The State Of Bihar Through The Director, Primary Education Human Resources Department Bihar, Patna. 2. The Director, Primary Education Human Resources Department Bihar, Patna. 3. The District Teacher Employment Appellate Authority Jamui District Jamui Through Its Member. 4. The Member District Teachers Employment Appellate Authority Jamui District- Jamui. 5. District Magistrate Jamui District Jamui. 6. The District Superintendent Of Education Jamui District- Jamui. 7. District Education Officer Jamui District- Jamui, District- Jamui 8. The Sub Divisional Education Officer Jamui District- Jamui. 9. The Block Development Officer Khaira District- Jamui. 10. The Block Education Extension Officer Khaira, District- Jamui. 11. The Panchayat Secretory Gram Panchayat Raj Kageshwar Block- Khaira, District- Jamui. 12. Dharmendra Kumar S/O Sri Bishundeo Mandal Resident Of Village- Jhundo (Jituadih), P.S- Jhundo, P.S- Khaira, District- Jamui. .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Khurshid Alam, Adv. Mr. Ram Sumiran Rai, Adv. For the Respondent/s : Mr. Vinay Kriti Singh Sc5 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 3 18-07-2013 Heard counsel for the parties. Mr. Khurshid Alam, learned counsel appearing on behalf of the petitioner, while assailing the impugned order dated 24.11.2011 passed by the District Teachers Employment Appellate Tribunal, Jamui in Case No. 146/2010 has submitted that the
Legal Reasoning
impugned order is bad on two scores. Firstly, because the Tribunal has not insured about the service of notice on the petitioner while Patna High Court CWJC No.1055 of 2012 (3) dt.18-07-2013 2 recording the finding of his absence despite issuance of notice. Secondly, he has submitted that the appointment of the petitioner had been made against the post reserved for Extremely Backward category on the basis of his being under visibility quota of visual
Legal Reasoning
handicapped. According to Mr. Alam respondent no.9, the complainant before the Tribunal, was belonging to Backward category for whom there was no vacancy in the lot of six post to be filled up. Mr. Alam also explains that out of six posts while two were meant for unreserved category, one was reserved for unreserved female category, while the other one was reserved for E.B.C. category and the fifth post was reserved for B.C. female category and the sixth and the last post was reserved for the Scheduled Caste Female category. According to him, therefore, even if respondent no.9, the complainant before the Tribunal, had more marks, he could not have been appointed as there was no vacancy for the post of Backward category. Counsel for respondent no.9 has submitted that first of all there is a clear finding that the notices were served on the petitioner and yet he did not choose to appear before the Tribunal and therefore, the plea of violation of principles of natural justice cannot be sustained. He has further submitted that in any event whatever explanation has been given by the petitioner in Patna High Court CWJC No.1055 of 2012 (3) dt.18-07-2013 3 justification of his appointment was never placed by any of the authority of the Panchayat, inasmuch as there was complete non- cooperation on the part of the Panchayat Secretary and the Mukhiya who did not obey the order of the Tribunal by producing the records as was summoned by the Tribunal. He has further submitted that as a matter of fact a separate category of handicapped was drawn in which the name of the petitioner is figured at Sl.No.8 while the name of respondent no.9 is figured at Sl.No.6. Therefore, respondent no.9 being a better candidate among physically handicapped category than the petitioner, the appointment of the petitioner was definitely against the settled norms of appointment on merit. In this regard he is quite emphatic that both petitioner and respondent no.9 and in fact many others had applied only for the handicapped category. Learned counsel for the State in absence of any counter affidavit filed by him has only chosen to support the order of the Tribunal by submitting that respondent no.9 was a better candidate on merit and if both petitioner and respondent no.9 were belonging to physically handicapped category, the direction of the Tribunal for appointing respondent no.9 cannot be faulted either on fact or in law. In the considered opinion of this Court the whole order Patna High Court CWJC No.1055 of 2012 (3) dt.18-07-2013 4 of the Tribunal has been passed in a very slip slot manner. First of all if the Tribunal was sure that the notices were issued to the petitioner and yet he did not choose to appear it had to record the mode of service of notice. The first mode recorded in the impugned order of service of notice on the petitioner through Mukhiya and the Panchayat Secretary can be of no avail, inasmuch as the Mukhiya and the Panchayat Secretary had not appeared before the Tribunal to say that they had served notice on the petitioner. Therefore, there was no service report of notice on the petitioner. Similar is the position with regard to the notice allegedly sent to the petitioner by post. There is no mention as to whether such letter was sent by registered post or ordinary post. In fact when respondent no.9 in his counter affidavit has enclosed copy of the alleged notice dated 22.6.2011, contained in letter no. 301 of the Tribunal that also does not give any impression as to whether the said letter was even sent because there is no address of the petitioner mentioned therein. In fact the name of the petitioner only has been recorded alongwith the Panchayat Sachiv without there being any address. Counsel for respondent no.9 submits that there must have been an envelop in which the said letter has been sent. Unfortunately this Court cannot presume the thing unless the Patna High Court CWJC No.1055 of 2012 (3) dt.18-07-2013 5 records would show that the notice of the Tribunal was ever served on the petitioner. First point, therefore, must be decided in favour of the petitioner. There is yet another reason to find the order of the Tribunal to be totally vulnerable. The Tribunal even if it had found that respondent no.9 was having more marks than the petitioner, it had no reason to issue straightway direction for appointment of respondent no.9 because in that case recruiting unit, the Panchayat, had to consider all the candidates who were in physically handicapped category. From the list produced by respondent no.9 himself it is clear that above respondent no.9 there were at least five candidates in the physically handicapped category. This Court is not aware as to whether the post was reserved for handicapped category of E.B.C. or B.C. and in fact this aspect of the matter had to be gone into by the Tribunal by finding out as to in which category the petitioner and respondent no.9 had been considered. Unfortunately this aspect has been totally ignored by the Tribunal. Thus, for the reasons indicated above, this Court does not find that the Tribunal has decided the case in a correct manner. The impugned order passed by the Tribunal is, accordingly, quashed and the matter is remitted back to the Tribunal where now Patna High Court CWJC No.1055 of 2012 (3) dt.18-07-2013 6 both petitioner and respondent no.9 shall appear on 2nd September, 2013, whereafter the Tribunal will hear them afresh and pass its order after looking into the original records of selection of the petitioner. It is made clear that the Panchayat Secretary in case he fails to produce the documents as directed by the Tribunal relating to selection of the petitioner and respondent no.9, he will be subjected to disciplinary proceeding to be initiated by the Collector of the District on receipt of such information by the Tribunal. The Tribunal, however, must make endeavor to pass its fresh order on remand within a period of four months from the date of appearance of both the parties. (Mihir Kumar Jha, J) surendra/-