Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12731 of 2011 ====================================================== Sudha Kumari, S/O Sri Devkant Chaudhary, R/O Village - Bhadaiya, P.O.- Bhadaiya,Via - Mohaddinagar, P.S. - Mohaddinagar, Distt. Samastipur Versus .... .... Petitioner 1. The State Of Bihar through Principal Secretary, Govt. Of Bihar, Patna 2. The Commissioner Cum Secretary, Human Resources Department, Govt. Of Bihar, Patna 3. The Director, Primary Education, Govt. Of Bihar, Patna 4. The District Magistrate, Samastipur 5. The District Superintendent of Education Cum District Programme Co- Ordinator, Samastipur 6. The Block Development Officer, Dalsingsarai, Samastipur 7. The Block Education Extension Officer, Dalsinghsarai, Samastipur 8. The Mukhiya, Gram Panchayat Raj Sultanpur Ghataho, Distt. - Samastipur 9. The Secretary, Gram Panchayat Raj Sultanpur Ghataho, Distt. - Samastipur 10. The President, District Employment Appellate Tribunal, Samastiur 11. Sunita Kumari, D/O Sri Ramchandra Singh, R/O Village - Ghataho, P.O. - Ghataho, Distt. - Samastipur, at present Sunita Kumari, Panchayat Teacher, Navsrijit Prathmik Vidyalaya, Banghara, Mushari, Dalsingsarai Distt. - Samastipur .... .... Respondents ====================================================== Appearance : For the Petitioner : Mr. Niranjan Kumar & Mr. Mrityunjay Kumar, Advocates For the S t a t e : Mr. Chaitanya Swaroop, A.C. to G.P.12 For Respondent no.8 : Mr. Dhanendra Chaudhary, Advocate For Respondent no.9 : Mr. Pramod Kumar, Advocate For Respondent no.11 : Mr. Uday Bhanu Roy & Mr. Binit Kumar, Advocates ====================================================== CORAM: HONOURABLE MR. JUSTICE SHAILESH KUMAR SINHA ORAL ORDER 9 04-09-2013 Heard learned counsel for the petitioner, the State, respondent no.11 as also learned counsel for respondents no.8 and 2
Legal Reasoning
Patna High Court CWJC No.12731 of 2011 (9) dt.04-09-2013 2 / 6 9. The petitioner is aggrieved by the order dated 20th of June, 2011 passed in Appeal No.1474 of 2011 by the District Teachers’ Employment Appellate Authority, Samastipur, as contained in Annexure 11, as also the order dated 10th of January, 2012 in Appeal No.1591 of 2011 filed by respondent no.11, as contained in Annexure 17. By the order dated 20th of June, 2011 (Annexure 11), the appeal of the petitioner against the appointment of respondent no.11 on the post of Panchayat Teacher upon hearing was dismissed and by order dated 10th of January, 2012 in Appeal No.1591 of 2011 (Annexure 17), the appellate authority set aside the order dated 7.11.2011 passed by the concerned Mukhiya directing the Headmaster of the concerned School to cancel the appointment of Respondent no.11. It is submitted on behalf of the petitioner that for her selection to the post of Panchayat Teacher on the basis of the certificate of the academic qualification, the petitioner as well as respondent no.11, both, were called for in the counselling under the rules. Pursuant to the said counselling held on 28th of February, 2009, the candidates were required to submit their consent for such appointment after receiving communication. The petitioner did not receive any intimation to receive the appointment and gave 3 Patna High Court CWJC No.12731 of 2011 (9) dt.04-09-2013 3 / 6 her consent and as such, she could not appear on the date fixed i.e., 14th of August, 2010; with the result respondent no.11, although had secured lesser marks than the petitioner, was selected and appointed. It is submitted that the petitioner assailed such appointment of respondent no.11 by filing Appeal No.1474 of 2011, which was, however, dismissed on the ground that the petitioner did not appear on the date fixed for giving her consent i.e. 14th of August, 2010 even though noticing that the petitioner was having higher marks than respondent no.11. On the complaint being made before the concerned Mukhia with respect to the appointment of respondent no.11, the Mukhia having found that the petitioner has secured higher marks than respondent no.11 set aside the appointment of respondent no.11. However, the said order of Mukhia was set aside by the District Teachers’ Employment Appellate Authority by order dated 10th of January 2012 (Annexure 17). In sum and substance, it is submitted that in view of the fact that the petitioner has higher marks than respondent no.11, the petitioner ought to have been appointed on
Legal Reasoning
the post of Panchayat Teacher. Learned counsel for the petitioner further submits that the petitioner did not receive the communication on 14.8.2010 and as such, she did not appear. Learned counsel submits that the certificate produced by 4 Patna High Court CWJC No.12731 of 2011 (9) dt.04-09-2013 4 / 6 respondent no.11 is a forged document which would appear from Annexure B to the counter affidavit filed on behalf of respondent no.8-Mukhiya written by the District Superintendent of Education- Cum-District Programme Co-ordinator, Bihar Education Project, Samastipur. Learned counsel submits that even though the petitioner was present on 14.8.2010, she was not given the appointment letter. Learned counsel for the petitioner has produced web copy of the order dated 23rd of July, 2012 passed in CWJC No.12666 of 2012, order dated 21st of March, 2012 passed in CWJC No.15037 of 2008 and the order dated 3rd of July, 2012 in CWJC No.11018 of 2012 for the proposition that if there is forgery in the appointment, then delay would not come in the way. Learned counsel for respondent no.11, on the other hand, submits that even though the appeal was filed by the petitioner after a good delay, but the appellate authority considered the appeal of the petitioner on merits and having found on the basis of the materials placed before the appellate authority that the petitioner did not appear on 14.8.2010 and further no consent was given by her for her appointment, respondent no.11 being the only candidate in the said category was appointed. Accordingly, the appeal of the petitioner was dismissed. It has further been contended that the order has been passed by the 5 Patna High Court CWJC No.12731 of 2011 (9) dt.04-09-2013 5 / 6 appellate authority and there is no appeal against the aforesaid order nor the Mukhiya has got any jurisdiction under the rules to set aside or to interfere with the order passed by the District Teachers’ Employment Appellate Authority. Accordingly, on the appeal being filed by respondent no.11 against the order of the Mukhia passed on 7.11.2011 directing the Headmaster for cancelling the appointment of respondent no.11 has been set aside by the Appellate Authority as per Annexure 17. In other words, learned counsel supports the orders, as contained in Annexure 11 and 17. Learned counsel for the respondent-Mukhiya has filed counter affidavit stating the procedure for such appointment. No counter affidavit has been filed on behalf of the respondent-Panchayat Secretary. Learned counsel, however, submits that the petitioner ought to have been appointed. Considering the submissions of the parties and their respective pleadings as also the impugned orders, as contained in Annexures 11 and 17, it would appear that the matter is not in dispute that the petitioner had secured higher marks that respondent no.11 although there are some more candidates, who have also secured higher marks than the petitioner as also respondent no.11. Nonetheless, the appeal filed by the petitioner 6 Patna High Court CWJC No.12731 of 2011 (9) dt.04-09-2013 6 / 6 was dismissed by the Appellate Authority on having found, as a matter of fact, that the petitioner did not appear on the date fixed i.e., 14.8.2010 for submitting the consent for such appointment. According to the impugned order, it is only respondent no.11, who had appeared on the aforesaid date i.e., 14.8.2010 and as such, she was appointed. The appellate authority has after considering all the facts in detail dismissed the appeal. In the above circumstances, I do not find any reason to interfere with the impugned orders. The writ application is, accordingly, dismissed. PNM (Shailesh Kumar Sinha, J)