Patna High Court
Case Details
Patna High Court CWJC No.17195 of 2012 (4) dt.29-07-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE NO.17195 OF 2012 ================================================== MD. ZIAUDDIN SON OF MD. ALAMUDDIN RESIDENT OF VILLAGE - SIRSI, P.S. - KHODAWANDPUR, DISTRICT - BEGUSARAI. .... .... PETITIONER/S VERSUS 1.THE STATE OF BIHAR 2.THE DISTRICT TEACHER APPOINTMENT APPELLATE AUTHORITY, BEGUSARAI 3.THE COMMISSIONER-CUM-SECRETARY, HUMAN RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA 4.THE SPECIAL SECRETARY-CUM-DIRECTOR, HUMAN RESOURCES DEPARTMENT, PRIMARY EDUCATION, GOVT. OF BIHAR 5.THE DISTRICT MAGISTRATE, BEGUSARAI 6.THE IN-CHARGE OFFICER, DISTRICT DEVELOPMENT BRANCH, DISTRICT - BEGUSARAI 7.THE DISTRICT SUPERINTENDENT OF EDUCATION, BEGUSARAI 8.THE BLOCK DEVELOPMENT OFFICER, BACHWARA BLOCK, BEGUSARAI 9.THE BLOCK EDUCATION EXTENSION OFFICER, BACHWARA BLOCK, BEGUSARAI 10.THE MUKHIYA, GRAM PANCHAYAT RAJ, BHIKHAMCHAK, BACHWARA BLOCK, DISTRICT - BEGUSARAI 11.THE PANCHAYAT SECRETARY, GRAM PANCHAYAT RAJ, BHIKHAMCHAK, BACHWARA BLOCK, DISTRICT - BEGUSARAI 12.MD. NAZRE IMAM SON OF MD. KALAM RESIDENT OF VILLAGE - ARWA, P.S. - BACHWARA, DISTRICT - BEGUSARAI. .... .... RESPONDENT/S =================================================== Appearance : For the Petitioner/s:Mr. Satyavrat Verma For the Respondent/s:Mr. Sunil Kr. Mandal SC24 =================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 4/ 29-07-2013 Heard learned counsel for the parties. 2. Assailing the impugned order dated 29.8.2012 passed by the District Teachers Employment Appellate Tribunal, Begusarai (hereinafter referred to as ‘the Tribunal’), Mr. Satyavrat Verma, learned counsel appearing on behalf of the petitioner has submitted that since Patna High Court CWJC No.17195 of 2012 (4) dt.29-07-2013 2 the respondent no.12 had not appeared in the course of counselling for the selection and appointment on the post of Prakhand Teacher between 04.10.2006 to 11.10.2006, he should not have been allowed to raise any sort of objection to the appointment of the petitioner on 17.03.2007 which was made after publication of the merit list on 20.10.2006. In this regard he has also relied on the provision under Rule-9(Kha) of Bihar Panchayat Teachers Appointment Rules, 2006 and has submitted that only objection against the merit list had to be submitted within a period of seven days whereas Respondent no. 12 had filed his application questioning the appointment of petitioner on 24.04.2007 i.e., after more than a month of the appointment of the petitioner and beyond the period of five months from the date of publication of the merit list.
Legal Reasoning
3. Mr. Verma has also tried to assail the impugned order on the ground that respondent no. 12 has been taking wavering stand with regard to his claim for appointment and in this regard reliance has been placed on two inquiry reports which according to him is in favour of the petitioner. 4. Mr. Syed M. Ashraf, learned counsel appearing on behalf of respondent no. 12 on the other hand has submitted that it is the case of Patna High Court CWJC No.17195 of 2012 (4) dt.29-07-2013 3 respondent no. 12 had been edged out for bestowing favour on the petitioner. In this regard he has submitted that respondent no. 12 has secured 57.88 per of marks as against the petitioner securing 55.66 per cent marks. He has also sought to rely on the 2006 Rules according to which the counselling cannot precede the preparation of the merit list. 5. Learned counsel for the State has not only supported the impugned order passed by the Tribunal but has more or less adopted the argument of respondent no. 12. 6. Before this Court would analyze the aforementioned submissions it would be necessary to record certain basic facts as noticed in the order of the Tribunal and also stated in the writ petition. 7. One post of Urdu teacher in Gram Panchayat Bhikhamchak in Bachhwara Block of the District of Begusarai was sought to be filled up from the candidates of general category in the year 2006 for which both the petitioner and respondent no.12 in addition to others had filed their applications. It is the case of the petitioner that after filing of the application all the applicants were informed of the date of counselling which was to commence from 4.10.2006 to 11.10.2006. The petitioner has Patna High Court CWJC No.17195 of 2012 (4) dt.29-07-2013 4 produced the copy of the application receipt register as Annexure 3 to the writ application and has submitted that after such counselling of the candidates a merit list was drawn on 20.10.2006 in which though the name of the petitioner had figured but as the respondent no.12 had not appeared his name did not figure either in the counselling register or in the merit list. According to the learned counsel for the petitioner the appointment of the petitioner was made on 7.3.2007. 8. It is the further case of the petitioner that his such appointment dated 7.3.2007 was assailed by respondent no.12 before the District Magistrate of Begusarai District by filing an application on 24.4.2007 and on this application a report was submitted by the Block Development Officer, Bachhwara on 16.5.2007 to the District Magistrate, Begusarai, wherein it was stated that there was some sort of discrepancy in selection of the petitioner because in the merit list the name of respondent no.12 was there but since he (respondent no.12) had not appeared in course of counselling, his appointment had not been made. According to the petitioner this was followed by yet another report of the Block Development Officer, Bachhwara dated 7.6.2007 wherein he had informed Patna High Court CWJC No.17195 of 2012 (4) dt.29-07-2013 5 the In-charge Officer of the District Development unit of Begusarai that while it was true that the persons having lesser mark than respondent no.12 had been appointed on the post of Urdu Teacher but he had not been appointed because he had not appeared in course of counselling. According to the petitioner, respondent no.12 had again filed another representation on 5.7.2007 on which the matter was again referred to the Block Development Officer, Bachhwara and an order was passed on 27.11.2007 cancelling the appointment of the petitioner with a consequential direction for appointment of respondent no.12 on the post of Urdu Teacher. According to the petitioner, against the aforementioned order dated 27.11.2007 passed by the Block Development Officer, Bachhwara he had moved the Director, Primary Education who by his order dated 11.1.2008 had stayed operation of the order dated 27.11.2007 and had directed the Collector of Begusarai district to dispose of the representation of the petitioner in accordance with law. 9. It, however, appears that when nothing was done in pursuance of the order of the Director, Primary Education dated 11.1.2008 the petitioner had filed C.W.J.C.No. 2798/2008 in which on 10.2.2009 an interim order was passed staying Patna High Court CWJC No.17195 of 2012 (4) dt.29-07-2013 6 operation of the order dated 27.11.2007 while issuing notice to respondent no.12 of this case. The petitioner on the strength of the aforementioned interim order had also rejoined the post and had also started getting payment of salary for which actually he had also filed a contempt application, M.J.C.No. 1149/2009 which was disposed of on 6.5.2010 with an observation that the payment of salary of the petitioner would be made after his joining was accepted. 10. It has to be noted that while the petitioner on one hand had moved the Director, Primary Education as also this Court by filing C.W.J.C.No. 2798/2008 he had also filed an application before the Tribunal being Case No. 61/2008. In fact during the pendency of the writ application when the order of the Block Development Officer in favour of respondent no.12 had not been complied he too had filed his case before the Tribunal being Case No. 410/2009. However, all these applications i.e. Case No. 61/2008 and Case No. 410/2009 had remained pending due to pendency of C.W.J.C.No. 2798/2008 before this Court which
Decision
was disposed of on 28.6.2011 without interfering with the impugned order passed by the Block Development Officer dated 27.11.2007 and by only Patna High Court CWJC No.17195 of 2012 (4) dt.29-07-2013 7 giving liberty to the petitioner to approach the Tribunal against the aforementioned order dated 27.11.2007 wherein it was directed that the operation of the order dated 27.11.2007 would remain stayed till disposal of the case filed by the petitioner. In the light of the aforementioned observation the petitioner had filed another case before the Tribunal being Case No. 188/2011 and all these cases have been disposed of by the impugned order of the Tribunal dated 29.8.2012 which has again been assailed by the petitioner in this writ application. 11. It has to be noted that on 3.1.2013 an interim order was passed by this Court staying the impugned order of the Tribunal dated 29.8.2012. 12. In the background of the aforementioned facts the first and foremost issue would be as to whether the selection and appointment of the petitioner on the post of Panchayat Urdu Teacher was justified. In fact when this Court has not interfered with the order dated 27.11.2007 even in the last order dated 28.6.2011 passed in C.W.J.C.No. 2798/2008 its relevance becomes important, inasmuch as the petitioner has also assailed this order in addition to the order of the Tribunal. The aforementioned order dated Patna High Court CWJC No.17195 of 2012 (4) dt.29-07-2013 8 27.11.2007 reads as follows: “dk;kZy; iz[k.M fodkl inkf/kdkjh] cNokM+k vkns’k Jh utjs bZeku firk eks0 dyke xzke vjok ds f’k{kd fu;kstu laca/kh ifjokn dh tkWp dh xbZ gS Jh bZeke ,oa iapk;r lfpo Hkh[kepd ds i{k dks lquk x;k vkosnu iath ds (cid:216)e la0&46 ij vkosnu izkIr gS mnwZ vH;FkhZ dh es/kk lwph dh nks dkih fn[kkbZ xbZ gS] tks fnukad 20-10-2006 izdkf’kr gS ,d es/kk lwph esa eqf[k;k ,oa iapk;r lfpo dk gLrk{kj gS ftlesa Jh utjs bZeke dk uke fy[kkdj dkVk gqvk gSA nwljh es/kk lwph esa eqf[k;k ,oa iapk;r lfpo ds gLrk{kj ds vykos iwoZ iz[k.M f’k{kk izlkj inkf/kdkjh] cNokM+k }kjk 30-04-2007 ,oa iwoZ iz[k.M fodkl inkf/kdkjh ds }kjk 7-6-2007 dks lhu fd;k x;k gSA bl izdkj nksuks es/kk lwph esa dkQh fojks/kkHkkl gSA es/kk lwph i;Zos{kd }kjk lR;kfir ugha gSA fnukad&6-10-2006 dks dkmalfyax gqbZ ftlesa Jh utjsbZeke dks vuqifLFkr crk;k x;k gS rFkk bl vk/kkj ij mudk p;u ugh fd;k x;k gSA ysfdu es/kk lwph esa ik;s x;s fojks/kkHkkl ds dkmalfyax esa budh vuqifLFkfr lansgkLin gSA dkmalfyax esa budh mifLFkfr ds ckjs esa 1- eks0 olhe vdje firk eks0 ,djkHkwygd] 2- ektnk [kkrqu firk Lo0 eks0 Qjhn [kkWa] 3- lquhy dqekj firk Jh edqunso egrks] 4- iadt dqekj firk Jh edqunso egrksa 5- eks0 vkfon gqlSu valkjh firk eks0 lquqr valkjh] 6- jke foykl lkg firk Lo0 cklqnso lkg] 7- lkfgnk [kkue firk Lo0 eks0 :jhn [kka us iqf"V dh gSA ;s yksx Hkh dkmalfyax esa mifLFkr FksA Li"V gS fd dkmalfyax iath dks cny fn;k x;k gSA p;fur vHk;FkhZ eks0 ft;kmn~nhu firk eks0 vyhe mn~nhu dk izkIrkad&668@1200 dk izfr’kr 55-66 gS] tcfd Jh utjs bZeku dk izkIrkad Jh ft;kmn~nhu ls vf/kd gSA fu;er% vf/kd izkIrkad okys vH;FkhZ dk fu;sktu gksuk pkfg;s tks ugha gqvkA vr% fcgkj ljdkj ekuo lalk/ku fodkl foHkkx }kjk fuxZr fcgkj iapk;r izkjafHkd f’k{kd fu;kstu ,oa lsok ’krZ fu;ekoyh&06 dh /kkjk&18 esa izn(cid:217)k ’kfDr dk iz;ksx djrs gq, Jh ft;kn~nhu ds fu;kstu dks jn~n fd;k tkrk gS rFkk buds LFkku ij Jh utjs bZeku dk fu;kstu djus dk vkns’k fn;k tkrk gSA g0@& iz[k.M fodkl inkf/kdkjh] cNokM+k Kkikad&&&&&&& fnukad&&&&&&& izfrfyfi&iapk;r lfpo xzke ia0 jkt Hkh[kepd dks vuqikyukFkZ izsf"krA izfrfyfi& eks0 utjs bZeke firk eks0 dyke xzke vjok dks vuqikyukFkZ izsf"kr g0@& iz[k.M fodkl inkf/kdkjh] cNokM+k Kkikad& 1388 fnukad 27-10-2007 1- 2- 3- izfrfyfi& eks0 ft;kmn~nhu firk eks0 vyhemn~nhu izk0 fo0 ih-,e-f’k{kd tgkuiqj dks lwpukFkZA g0@& vLiLV iz[k.Mfodkl inkf/kdkjh] cNokM+kA 13. From bare reading of the aforementioned order it would be clear that the same was passed by the competent authority who at the relevant point Patna High Court CWJC No.17195 of 2012 (4) dt.29-07-2013 9 of time in the year 2007 was duly authorized to pass such an order in terms of Rule 18 of the Bihar Panchayat Teachers Appointment Rules, 2006 which at that point of time even upto 25.8.2008 had authorized only the Block Development Officer to decide any dispute arising out of employment on the post of Panchayat Teacher. This Court in fact fails to understand as to how the Director, Primary Education in his order dated 11.1.2008 had sought to stay operation of the aforementioned order which as a matter of fact was an illegal order. The very fact that the petitioner even after such order could not get any relief and had to file his first case before the Tribunal being Case No. 61/2008 only after the Tribunal came into existence on 25.8.2008 would be a proof of the fact that the first application filed by the petitioner before the Tribunal was not maintainable because an earlier order passed by the Block Development Officer under Rule 18 could not have been assailed before the Tribunal either directly or indirectly even in the name of claiming payment of salary. It has to be noted that the interim order passed by this Court in C.W.J.C.No. 2798/2008 assailing the same order dated 27.11.2007 came to be passed only on 10.2.2009 wherein the petitioner had not mentioned about his Patna High Court CWJC No.17195 of 2012 (4) dt.29-07-2013 10 filing of Case No. 61/2008 because even at the time of disposal of the writ application on 28.6.2011 this Court had given a liberty to the petitioner to challenge the aforementioned order dated 27.11.2007. The petitioner, therefore, had conveniently suppressed the fact of filing of his first case before the Tribunal, Case No. 61/2008 in C.W.J.C.No. 2798/2008. 14. In any event the finding of the Block Development Officer, the competent authority as with regard to appointment of the petitioner, was quite clear because it was found therein that there were two merit list, one containing the signature of Mukhiya and the Panchayat Secretary in which the name of respondent no.12 was written and thereafter struck off and in the other merit list which was signed by the Mukhiya, Panchayat Sachiv and also seen by the Block Education Officer, Bachhwara on 30.4.2007 and the Block Development Officer on 7.6.2007 there were glaring inconsistency, inasmuch as neither of the merit list were verified by the competent Supervisor. In the said order it was also clearly mentioned that the counselling was held on 6.10.2006, whereas the merit list was prepared on 20.10.2006 and the Block Development Officer had found that in fact the counselling Patna High Court CWJC No.17195 of 2012 (4) dt.29-07-2013 11 register itself had been changed on account of which respondent no.12 having 57.88% marks was eliminated from the race by the petitioner securing 55.66% marks. 15. This order dated 27.11.2007, however, was passed without notice and/or opportunity of hearing to the petitioner and that is how the Tribunal has in view of the directions given by this Court in the order dated 28.6.2011 in C.W.J.C.No. 2798/2008 gone into the whole issue afresh and has recorded the following finding: “eks0 utjs beke] tks okn la0 410@09 dk vihykFkhZ rFkk okn la0 188@11 dk foi{kh la0 5 gS] us izkf/kdkj ds funs’k ij fu;kstu gsrq fn, x, vkosnu dk ewy izkfIr jlhn izLrqr fd;k gSA lkFk gh iapk;r lfpo us izkf/kdkj ds funs’k ij vkosnu izkfIr iath izLrqr fd;k gS ftlds (cid:216)ekad 46 ij eks0 utjs beke dk uke vafdr gSA eks0 utjs beke dk Li"V dFku gS fd mlus dkmaflfyax esa Hkkx fy;k ,oa dkmaflfyax iath esa gLrk{kj fd;k rFkk izkIrkad ds vk/kkj ij esjhV fyLV esa mldk uke izdkf’kr gqvkA utjs beke dk vkjksi gS fd eqf[k;k ,oa iapk;r lfpo us "kM;a= dj ,oa ft;kmnn~hu ds esy esa vkdj dkmaflfyax iath dk ist ua0 5 cny fn;k ftlij utjs beke dk gLrk{kj Fkk ,oa vuqfpr rjhdk viukdj ft;kmnn~hu dk fu;sktu dj fy;kA iapk;r lfpo dk izfrosnu ,oa ft;kmnn~hu dk dFku gS fd utjs beke us dkmaflfyax esa Hkkx ugha fy;kA izkf/kdkj ds funs’k ij utjs beke us dkmaflfyax esa Hkkx ysus ds leFkZu esa iadt dqekj] lquhy dqekj clhe vdje] ’kkfgnk [kkue ,oa jkefoykl lkg dks izkf/kdkj esa mifLFkr fd;kA bl loksa us iwNs tkus ij dgk fd fu/kkZfjr frfFk ij utjs beke dkmaflfyax esa mifLFkr FksA bu yksxksa us vius vius dFku ds leFkZu esa ’kiFk i= Hkh izLrqr fd;k gSA utjs beke ds dkmaflfyax ds fnu bu vH;fFk;ksa dk Hkh dkmaflfyax gqvk FkkA ;|fi ft;kmnn~hu }kjk Hkh jkenqykj egrksa] d‘".k dqekj] lqjs’k lguh] lqnhi dqekj] egsUnz lkg] fiaVq dqekj] ckS/kh dqekjh dks mifLFkr fd;k x;k ftUgksus ’kiFk i= nsdj dgk gS fd ftl fnu ft;kmnn~hu dh dkmaflfyax gq;h ml fnu utjs beke dkmaflfyax es mifLFkr ugha FksA iz[kaM fodkl inkf/kdkjh] cNokM+k us vius tkap esa ik;k gS fd mnwZ vH;FkhZ dh es/kk lwfp dh nks dkWih mUgs fn[kkbZ x;h tks fnukad&20-10-2006 dks izdkf’kr gSA ,d es/kk lwfp esa eqf[k;k ,oa iapk;r lfpo dk gLrk{kj gSA ftles utjs beke dk uke fy[kdj dkVk gqvk gSA nwljh es/kk lwfp esa eqf[k;k ,oa iapk;r lfpo ds gLrk{kj ds vykos iwoZ iz[kaM f’k{kk inkf/kdkjh }kjk fnukad& 30-04-07 ,oa iwoZ iz[kaM fodkl inkf/kdkjh }kjk fnukad&07-06-07 dks lhu (Seen) fd;k x;k gSA bl izdkj nksuks es/kk lwfp esa dkQh fojks/kkHkkl gSA es/kk lwfp i;Zos{kd }kjk lR;kfir ugha gSA tkap izfrosnu esa ;g Patna High Court CWJC No.17195 of 2012 (4) dt.29-07-2013 12 Hkh vafdr gS fd dkmaflfyax eas utjs beke dks vuqifLFkr crkdj mldk p;u ugha fd;k x;k gSA ysfdu es/kk lwfp esa ik, x, fojks/kkHkkl ls dkmaflfyax esa utjs beke dh vuqifLFkfr lansgkLin gSA iz[kaM fodkl inkf/kdkjh ds tkap izfrosnu ls utjs beke ds bl dFku dh iqf"V gksrh gS fd og dkmaflfyax esa mifLFkr Fkk ysfdu ft;kmnn~hu ds esy esa vkdj eqf[k;k ,oa iapk;r lfpo us "kM~;a= dj dkmaflfyax iath dk og ist cny fn;k ftlij utjs beke dk gLrk{kj FkkA utjs beke ds dkmaflfyax esa mifLFkr jgus ds dFku ds leFkZu esa olhe vdje] lquhy dqekj] iatd dqekj] jkefoykl lkg] lkfgnk [kkue us ’kiFk i= fn;k gS ,oa Lo;a izkf/kdkj esa mifLFkr gksdj dgk gS fd dkmaflfyax esa utjs beke mifLFkr FkkA iz[kaM fodkl inkf/kdkjh ds tkap esa ;g ik;k x;k gS fd esjhV fyLV esa utjs beke dk uke ’kkkfey Fkk ftls okn esa gVk fn;k x;k] vFkkZr dkmaflfyax iath dks cny fn;k x;k gSA iapk;r lfpo }kjk bldk dksbZ dkj.k ugha crk;k x;k gSA utjs beke dks baVj esa 57-88 izfr’kr izkIrkad gS tcfd ft;kmnn~hu dks baVj ds lerqY; ijh{kk esa 55-66 izfr’kr izkIrkad gSA bl izdkj utjs beke dks ft;kmnn~hu ls vf/kd izkIrkad gSA fu;kstu esa es/kk vad dh ljsvke vuns[kh ugh dh tk ldrh gSA orZeku le; eas jksth jksVh dh leL;k bruh fodV gS ,oa csjkstxkjh ds vuqikr esa ukSdjh dh la[;k bruh de gS fd ,d in ds fy, lSdM+ksa] gtkjksa vH;FkhZ u flQZ vkosnunsrs gS cfYd fu;kstu ikus gsrq ,Mh pksVh ,d dj nsrs gSA vf/kd izkIrkad gksus ij dksbZ vH;FkhZ dkmaflfyax esa mifLFkr ugh gksxk ;g ckr lkekU; :i ls Hkh fo’oluh; ugha izrhr gksrk gSA vfHkys[k ij miyC/k lHkh lk{;@dkxtkrksa dk voyksdu fd;k] iz[kaM fodkl inkf/kdkjh] cNokM+k dk tkap izfrosnu Kkikad 1308] fnukad&27-11-07 ,oa eqf[k;k rFkk iapk;r lfpo ds izfrosnu ij fopkj fd;kA ft;kmnn~hu ,oa utjs beke ds vf/koDrk ds ekSf[kd@fyf[kr cgl ij fopkj fd;kA miyC/k rF;] lk{; ,oa ifjfLFkfr ,oa izfrosnuksa dh foospuk ls lkfcr gksrk gS fd eks0 utjs beke us fu;sktu gsrq vkosnu fn;k Fkk rFkk dkmaflfyax esa Hkkx fy;kA utjs beke dk es/kk vad Hkh ft;kmnn~hu ls vf/kd gS ftl vk/kkj ij og iapk;r mnwZ f’k{kd in ij fu;kstu ikus dk okfto gdnkj gSA ysfdu eqf[k;k ,oa iapk;r lfpo }kjk es/kk vad dks njfdukj dj "kM;a= dj utjs beke dks dkmaflfyax esa vuqifLFkr crk;k x;k ,oa vuqfpr rjhdk viukdj eks0 ft;kmnn~hu dk fu;kstu fd;k x;kA mijksDr ifjfLFkfr es eks0 utjs beke ds izkIrkad ls de izkIrkad/kkjh eks0 ft;kmnn~hu ds fu;kstu dks voS/k ?kksf"kr fd;k tkrk gS ,oa iapk;r fu;kstu lfefr dks funs’k fn;k tkrk gS fd Ng lIrkg ds vanj ft;kmnn~~hu ds fu;kstu dks voS/k ?kksf"kr gksus ls mRiUu iapk;r mnwZ f’k{kd ds in ij esjhV …izkIrkad‰ ds vk/kkj ij eks0 utjs beke ds fu;kstu ds laca/k esa vko’w;d fu.kZ; ysaA (underlining for emphasis) 16. In view of the aforementioned finding and especially its underlined portion there remains no iota of doubt that respondent no.12 was sought to be edged out by the petitioner despite Respondent no. 12 being a better candidate of merit. The very Patna High Court CWJC No.17195 of 2012 (4) dt.29-07-2013 13 fact that the Tribunal had found not only the counselling register to have been interpolated but also merit list to have been changed, as was also found by the Block Development Officer in his order dated 27.11.2007 will leave nothing for speculation that the Tribunal has gone into all the relevant records and the documents for arriving its aforementioned finding in favour of respondent no.12. 17. Mr. Verma, learned counsel for the petitioner, however, has re-emphasized the aspect relating to respondent no.12 being not present in course of counselling in between 4.10.2006 to 11.10.2006. According to him, once respondent no.12 had not appeared in course of counselling he was automatically disentitled for being considered for selection and appointment on the post of Panchayat Teacher. 18. In the considered opinion of this Court the whole procedure of appointment of Panchayat Teacher having been codified in the 2006 Rules nothing can be left for speculation as to how the counselling has to be made. The counselling according to this Court would be the last stage. This would become clear from the provision of Rule-9 of Bihar Panchayat Prarambhik Shikshak(Niyogan and Patna High Court CWJC No.17195 of 2012 (4) dt.29-07-2013 14 Seva, Sart) Niyamawali-2006, relevant portion whereof reads as follows:- 9- fu;kstu dh izf(cid:216);k& (i) jkT; ljdkj iz[k.M f’k{kdksa ds fu;kstu gsrq le;≤ ij iapk;r lfefr dks rFkk iapk;r f’k{kdksa ds fu;kstu gsrq xzke iapk;rksa dks inksa dh la[;k miyC/k djk;sxhA (ii) iapk;r lfefr@uxj iapk;r }kjk dksfVokj iz[k.M f’k{kd rFkk iapk;r f’k{kd ds fjDr inksa dh lwpuk dk izdk’ku iwjs iz[k.M@iapk;r esa de&ls&de 15 fnuksa rd ds fy, fd;k tk;sxkA (iii) fofgr izi= …vuqlwph&1‰ esa vkosnu i= iz[kaM f’k{kd ds fy, iz[kaM f’k{kk izlkj inkf/kdkjh ds ;gk¡ rFkk iapk;r f’k{kd ds fy, xzke iapk;r ds lfpo ds ;gk¡ izkIr fd;k tk;sxkA izkfIr ds ckn rqjUr ,d izkfIr jlhn nh tk;sxh@Hksth tk;sxhA (iv) iz[k.M f’k{kd ds fu;kstu gsrq iSuy& …d‰ iz[k.M f’k{kd ds fu;kstu gsrq iSuy iz[k.M&Lrj ij iapk;r lfefr ds izeq[k dh v/;{krk esa xfBr iapk;r lfefr ds }kjk es/kk vadksa ds vk/kkj ij rS;kj fd;k tk;sxkA es/kk vadksa dh x.kuk fuEu izdkj dh tk;sxh& …1‰ eSfV“d@mPprj ek/;[email protected];V &izkIrkad dk izfr’kr …2‰ nks o"khZ; izf’k{k.k@ch0,y0,M0 &izkIrkad dk izfr’kr ijUrq ;fn dksbZ vH;FkhZ nks o"khZ; izf’k{k.k rFkk ch0,y0,M0@ch0,M0@lh0ih0,M0 dh fMxzh izkIr fd;k gks rks muds }kjk nkok fd;s x;s fdlh ,d izf’k{k.k ds izkIrkad ds izfr’kr dks es/kk vad esa tksM+k tk;sxkA 1[…[k‰ [k.M …d‰ ds 1 vkSj 2 tksM+dj rFkk tksM+ dks nks ls Hkkx nsus ij tks izfr’kr gksxk] ogh vH;FkhZ dk es/kk vad gksxk ; ijUrq fu;e 4 ds mi&fu;e …2‰ esa mfYyf[kr vH;fFkZ;ksa ds ekeys esa 1 o"kZ ;k vf/kd f’k{k.k vuqHko ds fy, 20 vad muds es/kk vad esa tksM+s tk;saxsA] …x‰ ijUrq ’kkjhfjd f’k{kk f’k{kd ds fu;kstu gsrq iSuy vyx ls rS;kj fd;k tk;sxkA (v) iapk;r f’k{kd ds fu;kstu gsrq iSuy& …d‰ iapk;r f’k{kd ds fu;kstu gsrq iSuy xzke iapk;r ds eqf[k;k dh v/;{krk esa xfBr lfefr ds }kjk es/kk vadksa ds vk/kkj ij rS;kj fd;k tk;sxkA es/kk vadksa dh x.kuk fuEu izdkj dh tk;sxh& ijUrq ;fn dksbZ vH;FkhZ us nks o"khZ; izf’k{k.k rFkk ch0,y0,M0 nksuksa dh fMxzh izkIr fd;k gks rks muds }kjk nkok fd;s x;s fdlh ,d izf’k{k.k ds izkIrkad ds izfr’kr dks es/kk vad esa tksM+k tk;sxkA 1[…[k‰ [k.M …d‰ ds 1 vkSj 2 tksM+dj rFkk tksM+ dks nks ls Hkkx nsus ij tks izfr’kr gksxk] ogh vH;FkhZ dk es/kk vad gksxk ; ijUrq fu;e 4 ds mi&fu;e …2‰ esa mfYyf[kr vH;fFkZ;ksa ds ekeys esa 1 o"kZ ;k vf/kd f’k{k.k vuqHko ds fy, 20 vad muds es/kk vad esa tksM+s tk;saxsA] (vi) nksuksa Lrjksa ds f’k{kdksa ds fu;kstu gsrq iSuy fuekZ.k ds (cid:216)e esa leku vad izkir gksus ij] ftudh tUefrfFk igys gksxh] mUgsa iSuy esa ¯ij LFkku fu/kkZfjr gksxkA (vii) iSuy fuekz.k gsrq lfefr dk xBu rFkk vuqeksnu& izkIr vkosnu&i= ds vk/kkj ij iSuy dk fuekZ.k fuEufyf[kr lfefr ds }kjk fd;k tk;sxk& (d) iz[k.M f’k{kd ,oa ’kkjhfjd f’k{kk f’k{kd gsrq& (i) iapk;r lfefr ds izeq[k & v/;{k Patna High Court CWJC No.17195 of 2012 (4) dt.29-07-2013 15 (ii) iapk;r f’k{kd ds fu;kstu gsrq iSuy & lnL; (iii) iapk;r lfefr ds f’k{kk lfefr }kjk p;fur ,d lnL; & lnL; …izeq[k iq:"k gksus ij p;fur lnL; efgyk gksxh‰ (iv) i[kaM f’k{kk izlkj inkf/kdkjh & lnL; ([k) iapk;r f’k{kd gsrq& (i) xzke iapk;r dk eqf[k;k & v/;{k (ii) xzke iapk;r ds f’k{kk lfefr }kjk p;fur ,d lnL;& lnL; …izeq[k iq:"k gksus ij p;fur lnL; efgyk gksxh‰ (iii) iapk;r lfefr dk og lnL; ftuds {ks= dk vf/kdka’k Hkkx iM+rk esa iapk;r ml gks & lnL; (iv) iapk;r vFkok iapk;r ds fudVLFk ek/;fed fo|ky; dk ftyk f’k{kk inkf/kdkjh }kjk euksuhr ,d f’k{kd & lnL; (v) xzke iaapk;r lsod & lnL; lfpo 2[ijUrq mijksDr nksuksa lfefr;ksa esa p;fur lnL; dk dk;Zdky ,d o"kZ dk gksxkA] fVIi.kh& iapk;r lfefr dh f’k{kk lfefr rFkk xzke iapk;r dh f’k{kk lfefr xfBr ugha gksus dh fLFkfr esa iz[k.M f’k{kk izlkj inkf/kdkjh ds }kjk iapk;r lfefr@ xzke iapk;r ds ,d lnL; lfefr ds lnL; euksfur dj ldsaxsA (viii) iSuy rS;kj gks tkus ij mls lkoZtfud fd;k tk;sxkA fdlh izdkj dh vkif(cid:217)k nsus gsrq ,d lIrkg dk le; fn;k tk;sxkA izkIr vkif(cid:217)k dk fujkdj.k dj iSuy dks vfUre :i fn;k tk;sxkA (iX) iz[k.M f’k{kdksa rFkk iapk;r f’k{kdksa ds fu;kstu gsrq rS;kj iSuy dk vuqeksnu (cid:216)e’k% iapk;r lfefr ,oa xzke iapk;r ds }kjk fd;k tk;sxkA (x) p;fur vH;fFkZ;ksa dks bfPNr fo|ky;ksa esa fu;kstu es/kk ds vk/kkj ij rS;kj iSuy ds vuqlwph AA esa vafdr izkFkfedrk ds vojksgh&(cid:216)e esa mijksDr lfefr }kjk dkmfUlfyax ds vk/kkj ij fd;k tk;sxkA 1[ijUrq iz[k.M f’k{kd ds inLFkkiu esa bl ckr dk /;ku j[kk tk;sxk fd Lukrd ;ksX;rk/kkjh f’k{kdka dk inLFkkiu e/; fo|ky; esa gks ftlesa ls U;wure nks f’k{kd foKku ds gksaA Lukrd ;ksX;rk/kkjh foKku f’k{kd ugha feyus ij bUVj ;ksX;rk/kkjh foKku f’k{kd dk inLFkkiu ds vk/kkj ij fd;k tk;sxkA] (xi) p;fur vH;FkhZ dks fu;kstu i= …vuwlwphAAA‰ Hkstk tk;sxkA lgefr&i= ds vk/kkj ij ;ksxnku Lohd‘r fd;k tk;sxkA 19. From the perusal of Rule-9, sub-clause-8, it would be clear that once the application is received a draft panel has to be prepared on merits as per the provision made in the Rule-9(v). It is this panel which has to be made public inviting Patna High Court CWJC No.17195 of 2012 (4) dt.29-07-2013 16 objection and after filing of objection within a period of one week of the draft merit list, the panel has to be finalized. Such merit panel thereafter has to receive approval of the appointing unit i.e. the Panchayat Samiti or the Gram Panchayat. The process of counselling which comes under Rule-9(x) in fact happens to be only for the purposes of allocation of post on the basis of the aforementioned merit list in course of posting of the persons in the concerned schools. It is at this stage the candidates have to give their consent. 20. Thus, there would be no difficulty in rejecting the submission of learned counsel for the petitioner, inasmuch as, he himself admits that the counselling was held earlier in between 04.10.2006 to 11.10.2006 whereas the merit list was published on 20.10.2006. That itself was definitely against the provision of Rules and in fact that precisely was/is the grievance of respondent no. 12 before the authorities and the Tribunal. This Court would find that the petitioner on being appointed on 07.03.2007 despite having lesser marks than respondent no. 12 it was respondent no.12 who had initially moved the District Magistrate whereafter the matter was gone into by the prescribed authority namely the Block Development Officer who at the Patna High Court CWJC No.17195 of 2012 (4) dt.29-07-2013 17 relevant point of time under Rule-18 was having the power to decide the dispute. The dispute in fact was also decided in favour of respondent no. 12 by holding that the appointment of the petitioner was bad because he had lesser marks than respondent no. 12. 21. As a matter of fact when the Tribunal has itself held that the counselling register was changed and its page no.5 was removed as well as merit list containing the name of respondent no.12 was also interfered, much emphasised submission of Mr. Verma on the plea of counselling also looses its significance. In fact from the bare perusal of the original documents, as contained in Annexures 3 and 4, it would transpire that in the period of 4.10.2006 to 11.10.2006 only applications were received and verified as would be apparent from the entry made at the top page of the register with the heading ‘Gram Panchayat Bhikhamchak Panchayat Shikshak Niyojan, 2006 Awedan Patra Ki Janch’. Therefore, whatever was done between 4.10.2006 to 11.10.2006 cannot be equated with the counselling and inasmuch as it was only a scrutiny of all the applications. It is not the case of the petitioner that respondent no.12 was not an applicant and in fact when both the Block Development Officer and the Patna High Court CWJC No.17195 of 2012 (4) dt.29-07-2013 18 Tribunal had found that the name of respondent no.12 was entered in the merit list before its being struck off as noticed by the Block Development Officer in his order dated 27.11.2007, nothing would be left for speculation that someone was working for the protecting the interest of the petitioner despite his having lower marks and merit than respondent no.12. The very fact that the petitioner could manage the stay order from the Director, Primary Education against the order of the Block Development Officer, the competent authority under Rule 18 of 2006 Rules would go to show the influence exerted by the petitioner for protecting his illegal appointment which was clearly tainted with malice and fraud. 22. The reliance placed by Mr. Verma on the two enquiry reports of the Block Development Officer dated 16.5.2007, as contained in Annexure 8, and another report dated 7.6.2007 (Annexure 9) for the purposes of showing that respondent no.12 was not present in course of counselling has to be first of all appreciated in the light of overall contents of those reports and secondly the plea of counselling as is understood in terms of Rule 9(x) as discussed above. In fact in the first report dated 16.5.2007 the Block Development Officer had Patna High Court CWJC No.17195 of 2012 (4) dt.29-07-2013 19 categorically mentioned with regard to existence of the name of respondent no.12 in the merit list which was found to be scored over. In the first report of the B.D.O. submitted to the District Magistrate, Begusarai, there is nothing which can actually go to show that the selection and appointment of the petitioner was made in a justified manner. Similarly, the reliance placed on the second report of the B.D.O. dated 7.6.2007 only on the plea of absence of respondent no.12 in course of counselling will have little meaning when the counselling has been actually made a substitute of screening of the application as has been already discussed above. In any event both these reports are prior to the order passed by the B.D.O., the competent authority authorized under Rule 18 of 2006 Rules who by his order dated 27.11.2007 had found the appointment of the petitioner to be bad and had directed for his removal and appointment of respondent no.12 in place of the petitioner. 23. As discussed above, the matter, however, became complicated on account of non-compliance of the principles of natural justice by the B.D.O. while passing his order dated 27.11.2007 and for this error on the part of the B.D.O. it is respondent no.12 who has suffered for a period of more than five Patna High Court CWJC No.17195 of 2012 (4) dt.29-07-2013 20 years, inasmuch as the petitioner even after having lesser marks and merit than respondent no.12 has been able to continue in service either on the strength of an illegal interim order of stay passed by the Director, Primary Education or an interim order passed by this Court in C.W.J.C.No. 2798/2008 or under the threat of the contempt in M.J.C.No. 1149/2009 and again on the basis of interim order passed by this Court in the present writ application on 3.1.2013. Thus, in the light of the aforementioned discussions when this Court is fully satisfied that the Tribunal has gone to the root of the matter and has discovered that the appointment of the petitioner was bad both on fact and in law, it must approve the findings of the Tribunal which by dismissing the case of the petitioner has also approved the reasoning recorded in the order of the B.D.O. dated 27.11.2007 which in fact has merged with the impugned order of the Tribunal. 24. In the result, this writ application is dismissed and the interim order passed earlier on 3.1.2013 is hereby vacated and the Panchayat Secretary (respondent no.11) is hereby directed to ensure that the direction issued by the Tribunal in favour of respondent no.12 is complied in letter and spirit within a period of one month from the date of receipt of this order. Ranjan (Mihir Kumar Jha, J)