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2011 DIGILAW 139 (PAT)

Anil Kumar Jha v. State of Bihar

2011-01-21

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ORDER 1. In all the three writ applications, petitioners are aggrieved by the order dated 03.12.2008 passed by the District Magistrate, Araria in Miscellaneous Case No. 03 of 2008-2009, whereby the District Magistrate cancelled the appointment of the petitioners as Panchayat Teachers in Jagir Parasi Gram Panchayat in the district of Araria. The District Magistrate, Araria further directed the B.D.O. to make fresh appointments of Panchayat Teacher and to lodge the F.I.R. against the persons responsible for the irregularities. 2. Petitioners joined in pursuance to their appointment as Panchayat Teacher in April, 2007. Subsequently under some complaint, the enquiry was conducted by Block Development Officer, Kursakanta who found no irregularities and submitted a report to the S.D.O. which was ultimately transmitted to the District Magistrate. Subsequently vide Letter No. 135(A) dated 12.12.2007, without giving any notice or giving opportunity to the petitioners and similarly situated persons, petitioners have been terminated. The said order of termination came to be challenged before this Court in C.W.J.C. No. 680 of 2008. The said writ application was disposed off on 12.02.2008 by quashing the order of termination as well as the enquiry report with a direction to the District Magistrate, Araria to consider the issue of the legality of the appointment of the petitioners in accordance with law and take a fresh decision within a period of 12 weeks in following words:- "The impugned order is purported to be based on certain procedural irregularities alleged to have been committed in the selection process. At Annexure-8 is an enquiry report authored by the same person who has, issued Annexure-12. It states to the contrary. The finding therein is that there was no procedural irregularity. The Court has gone through Annexure-8 also. In view of the nature of the order proposed to be passed, all that the Court observes is that even Annexure-8 leaves much to be desired. The issue involved presently are purely administrative based on facts. No questions of law are involved. The Court therefore declines to take the administrator's burden. The writ is therefore disposed with directions to the respondent No.3, the District Magistrate, Araria to consider the issue of the legality of the appointment of the petitioners in accordance with law and take a fresh decision and arrive at a fresh determination thereupon in accordance with law. The Court therefore declines to take the administrator's burden. The writ is therefore disposed with directions to the respondent No.3, the District Magistrate, Araria to consider the issue of the legality of the appointment of the petitioners in accordance with law and take a fresh decision and arrive at a fresh determination thereupon in accordance with law. Let such fresh determination be done by him within a maximum period of 12 weeks from the date of receipt production of a copy of this order. The order at Annexure-8 & 12 are set aside to that extent only for purposes of re-determination afresh in accordance with law. The writ application stands disposed with the aforesaid direction." 3. In pursuance to the aforesaid order of this Court, the District Magistrate. Araria in miscellaneous Case No. 03 of 2008-2009 vide order dated 03.12.2008 canceled the appointment of all the 18 Panchayat Teachers on finding irregularities in the appointment and directed the B.D.O., Kursakanta to make fresh appointment and also directed to lodge the F.I.R. against the persons responsible for committing the irregularities as contained in Annexure-12 which is the impugned order in the present proceeding. 4. The order dated 03.12.2008 came to be challenged before this Court in C.W.J.C. No. 11421 of 2009 by similarly situated person, Ram Saran Mandal. The said writ, application was disposed off on 30.10.2009 with a direction to the Block Education Extension Officer, Kursakanta as well as the Mukhiya and Panchayat Secretary of Gram Panchayat Jagir Parasi to reinstate the petitioners and other similarly situated persons like the petitioners with all consequential benefits, since this Court found nothing specific with regard to irregularities alleged against the petitioners in the said case and the appointments were found to be made in a proper manner in the earlier enquiry. The relevant extract of the order dated 30.10.2009 reads as follows:- "Petitioner had earlier moved before this Court by filing C.W.J.C. No. 680 of 2008 as the Block Development Officer, Kursakanta had directed for cancelling petitioner's appointment as Panchayat teacher by holding an ex-parte enquiry on some vague allegations of irregularity in the selection process. The Block Development Officer in his order did not disclose as to who were the persons aggrieved, on whose complaint such an enquiry was initiated by the Block Development Officer and in an ex-parte enquiry order of termination was passed. The Block Development Officer in his order did not disclose as to who were the persons aggrieved, on whose complaint such an enquiry was initiated by the Block Development Officer and in an ex-parte enquiry order of termination was passed. The writ application filed by the petitioner was disposed of and the order of Block Development Officer was quashed, matter was remanded for re-determination of issue afresh, in accordance with law. In the light of the direction issued in the writ application, the District Magistrate, Araria himself conducted an enquiry, but in that enquiry specific case of the petitioner was neither considered nor decided. No finding was recorded, so far petitioner's selection/appointment is concerned. There is no such finding that ignoring candidature of any eligible person, having better marks in the petitioner, or more capable for being appointed on the post, was ignored. The impugned order only discloses that a random enquiry was conducted. None of such persons, whose appointments/selections were either noticed or given opportunity to file any objection, defending their selection/appointment. Counsel for the petitioner submits that on the basis of some vague complaints and vague findings petitioner's appointment, legally done observing all formalities has been cancelled by the authorities. The Block Development Officer had also not disclosed names of complainants due to which enquiry was conducted. Similarly, the District Magistrate also did not go into this question that who were persons aggrieved on account of the appointment of petitioner and others in that selection process. Considering the vagueness of the complaints as well as vague finding recorded by the District Magistrate, which do not disclose any specific illegality committed by the Appointment Committee in the case of the petitioner. The impugned order dated 3.12.2008 passed by the District Magistrate, Araria in Misc. Case No. 03/2008-2009 is quashed. The Block Education Extension Officer, Kursakanta as well as Mukhiya and Panchayat Secretary, Gram Panchayat Raj jagir Parasi, District-Araria are directed to reinstate the petitioner and other similarly situated persons like the petitioner on his posts with all consequential benefits. 5. The order dated 30.10.2009 passed in C.W.J.C. No. 11421 of 2009 came to be challenged in L.P.A. No. 13 of 2010 by some of the persons whose intervener application was not allowed by the writ courts where the order of learned Single Judge passed in C.W.J.C. No. 11421 of 2009 was upheld. 5. The order dated 30.10.2009 passed in C.W.J.C. No. 11421 of 2009 came to be challenged in L.P.A. No. 13 of 2010 by some of the persons whose intervener application was not allowed by the writ courts where the order of learned Single Judge passed in C.W.J.C. No. 11421 of 2009 was upheld. So far as the petitioners of the said writ application is concerned, the last portion of the order which was conferred to the other similarly situated persons were deleted by the L.P.A. Court, vide order dated 25.01.2010. The relevant portion of the L.P.A. order reads as follows:- "In view of the aforesaid, we are of the considered opinion that the controversy stood restricted to the first respondent and its employer. In a case of challenge to the order of termination, a third party, cannot claim to be a necessary party. Ordinarily so saying, we would have rejected this appeal but it is perceptible from the order of the learned. Single Judge that the benefit of reinstatement has been extended to other similarly situated persons. In our considered opinion, such relief could not have been granted to other similarly situated persons as the writ petition was filed by a singular writ petitioner and a finding has been recorded that his appointment was valid. In view of the aforesaid, while not entertaining the application for leave, we only modify the order of the learned Single Judge that the benefits extended' therein will stand extended to the writ petitioner alone. The application as well as the appeal stand disposed of accordingly." 6. Subsequently, one of the similarly situated terminated Panchayat Teacher challenged the order of District Magistrate dated 12.02.2008 in C.W.J.C. No. 13520 of 2010 and the said writ application was allowed keeping in view of reason and parity of fact in following words :- "Having perused the order of the Collector-cum-District Magistrate, as impugned, as also the judgment of this Court in the case of Ramsharan Mandal (supra) being C.W.J.C. No. 11421 of 2009, I find that the facts are similar and the similar judgment is called for. Thus, in my view, on parity of reasons and parity of facts I am constraint to hold that the order of the Collector, as passed in Misc. Case No. 3 of 2008-2009 being dated 3, 12.2008 cannot be sustained and is quashed. Thus, in my view, on parity of reasons and parity of facts I am constraint to hold that the order of the Collector, as passed in Misc. Case No. 3 of 2008-2009 being dated 3, 12.2008 cannot be sustained and is quashed. The petitioner consequently would be entitled to be reinstated forthwith and she would be entitled to full remuneration for the period she has worked with the aforesaid observations and directions, the writ petition is disposed of." 7. A consolidated counter affidavit has been filed on behalf of the State. In that no specific irregularities with regard to the present petitioners has been pointed out, but in course of argument, Leaned counsel for the State pointed out that one of the petitioner, Neelam Kumari's signature was not found matching on the application form and counseling register whereas with regard to petitioner Neelam Kumari and Rina Kumari, their names appear to have been entered subsequently on the counseling registered. With regard to the same, only suspicion has been raised by the District Magistrate as no expert opinion was taken for reaching to that conclusion and in view of the fact that earlier the B.D.O. found no irregularities which was accepted by the S.D.O. and in view of the fact that considering all these facts the writ application of similarly situated persons have been allowed by this Court, the appointment of the petitioners seems to be true in light of the documents available on record. 8. On perusal of the impugned order of the District Magistrate and also the judgment of this Court in Ramsharan Mandal(supra) being C.W.J.C. No. 11421 of 2009 and Rekha Devi (supra) being C.W.J.C. No. 13520 of 2010 and on finding that the case of the petitioners are not distinguishable from the case of similarly situated other persons, this Court will like to further add that the objection under Rule 9(4) has to be filed under Bihar Panchayat Elementary Teachers (Employment and Service Condition) Rule, 2006 within a period of one week of the publication of the panel but the impugned order does not reflects that any order was filed within the stipulated time. It is well settled law that if the procedure demands a thing to be done in a particular manner then that thing has to be done in that particular manner or not at all. 9. It is well settled law that if the procedure demands a thing to be done in a particular manner then that thing has to be done in that particular manner or not at all. 9. Thus, in view of this Court, on parity of reason and facts, the impugned order of the District Magistrate, Araria dated 03.12.2008 passed in Miscellaneous Case No. 03/2008-2009 is hereby quashed. The petitioners are consequently entitled to be reinstated forthwith. It is made clear that petitioners will be entitled for the salary only for the period they have worked so far as arrears are concerned but the period in. which they were not in service, that period will be computed for continuity of their services and other purposes. 10. With the aforesaid observations, the writ applications are allowed.