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2011 DIGILAW 2230 (PAT)

Rajni Bara v. State of Bihar

2011-11-09

NAVIN SINHA

body2011
ORDER Heard learned Counsel for the petitioner and the State. The petitioner, a Panchayat Teacher, belonging to the Scheduled Tribe, is aggrieved by the order dated 19.1.2010 passed by the District Teachers Appointment Appellate Tribunal, Bhagalpur setting aside her appointment as having been made contrary to law in violation of the reservation roster. 2. Learned Counsel for the petitioner submits that she was appointed as a Shiksha Mitra on 7.2.2006. Relying on a Bench decision reported in 2009 (2) PLJR 929 (Alok Kumar Vs. The State of Bihar) it is submitted that the time limit or filing of complaints by an aggrieved against such appointment was 30 days. No such complaint was filed. The Bihar Panchayat Primary Teachers (Appointment and Service Conditions) Rules 2006 (hereinafter called the Appointment Rules) was promulgated on 1.7.2006. By virtue of Rule 20 the petitioner holding the post of Shiksha Mitra on that date automatically by operation of law acquired the status of a Panchayat Teacher. Assuming that her appointment could have been scrutinized even at this stage, the matter had to be considered by the Block Development Officer under Rule 18. Though no period of time is prescribed for filing of a complaint under the Rules, it has to be understood as having to be filed within a reasonable time. The complaint in question was filed much belatedly on 20.8.2009 by the new incumbent Mukhiya before the Appellate Tribunal (hereinafter referred to as the Tribunal) directly on 20.8.2009. The Bihar Panchayat Primary Teachers (Appointment and Service Conditions) (Amendment) Rules 2008 (hereinafter called the Amended Rules) promulgated on 25.8.2008 provides that an appeal shall lie before the Tribunal from the orders passed by the Block Development Officer under Rule 18.The impugned order passed directly by the Appellate Authority is not only without jurisdiction but also deprives the petitioner of an appellate remedy. 3. Counsel for the State contends that the impugned order returns a finding that the vacancy against which the petitioner was appointed belonged to the Scheduled Caste category. Under the Reservation Rules of 1991, if no scheduled caste candidate was available the vacancy was required to be carried forward for three years whereafter it could have been transferred to the Scheduled Tribe category. The very appointment of the petitioner as a Shiksha Mitra was therefore contrary to the reservation roster. Under the Reservation Rules of 1991, if no scheduled caste candidate was available the vacancy was required to be carried forward for three years whereafter it could have been transferred to the Scheduled Tribe category. The very appointment of the petitioner as a Shiksha Mitra was therefore contrary to the reservation roster. That being so the petitioner cannot be held to have acquired the status of Panchayat Teacher on 1.7.2006. The appointment was ab initio void. 4. The counter affidavit and the supplementary counter affidavit filed by the respondents do not allege that the petitioner did not hold the requisite qualification for being appointed as a Shiksha Mitra and/or a Panchayat Teacher. There is no explanation in the two counter affidavits that if reservation roster was not followed on 7.2.2006 why the matter was not enquired into within reasonable time if not within 30 days. Rule 11 of the Appointment Rules visualizes examination of documents. The power for scrutinising the appointment of the petitioner under Rule 20 of the Appointment Rules was again available to the respondents. There shall be a presumption that they found no irregularity in the same. In any event the operation of the reservation roster was the responsibility of the respondents and not of the petitioner. If the reservation roster has been violated the petitioner cannot be visited with the consequence simplicitor unless those who violated the reservation roster are first made answerable. There is no allegation in the order of the Tribunal of the petitioner having manipulated and knowingly obtained a wrong appointment contrary to the roster. 5. Even after the petitioner acquired the status of Panchayat Teacher on 1.7.2006, nonetheless importing the principles contained in Rule 18 of the Appointment Rules no complaint was filed with regard to her appointment within reasonable time. If the Rules do not stipulate any time period for filing such complaint, a period of three-four months can certainly be considered sufficient for filing such complaint. Where no period of time was prescribed in the law the Supreme Court in (1969) 2 SCC 187 (State of Gujarat Vs. Patil Raghav Natha) has held at paragraph 12 as follows:- “12. It seems to us that Section 65 itself indicates the length of the reasonable time within which the Commissioner must act under Section 211. Where no period of time was prescribed in the law the Supreme Court in (1969) 2 SCC 187 (State of Gujarat Vs. Patil Raghav Natha) has held at paragraph 12 as follows:- “12. It seems to us that Section 65 itself indicates the length of the reasonable time within which the Commissioner must act under Section 211. Under Section 65 of the Code if the Collector does not inform the applicant of his decision on the application within a period of three months the permission applied for shall be deemed to have been granted. This section shows that a period of three months is considered ample for the Collector to make up his mind and beyond that the legislature thinks that the matter is so urgent that permission shall be deemed to have been granted. Reading Sections 211 and 65 together it seems to us that the Commissioner must exercise his revisional powers within a few months of the order of the Collector. This is reasonable time because after the grant of the permission for building purposes the occupant is likely to spend money on starting building operations at least within a few months from the date of the permission. In this case the Commissioner set aside the order of the Collector on October 12, 1961 i.e more than a year after the order and it seems to us that this order was passed too late.” 6. The complaint was filed on 20.8.2009. It was not filed before the Block Development Officer who is the statutory authority and was required to dispose the same within 30 days. An appeal lay before the Appellate Tribunal. If the Appellate Tribunal usurped the powers of the Block Development Officer undoubtedly its order is without jurisdiction and causes great prejudice to the petitioner as she has been deprived of the remedy of an appeal. The order of the Tribunal is without jurisdiction when it usurps the powers of the Block Development Officer. 7. In (2010) 11 SCC 557 (Manohar Lal Vs. Ugrasen) it has been held at paragraph 23 as follows:– “23. Therefore, the law on the question can be summarised to the effect that no higher authority in the hierarchy or an appellate or revisional authority can exercise the power of the statutory authority nor can the superior authority mortgage its wisdom and direct the statutory authority to act in a particular manner. Therefore, the law on the question can be summarised to the effect that no higher authority in the hierarchy or an appellate or revisional authority can exercise the power of the statutory authority nor can the superior authority mortgage its wisdom and direct the statutory authority to act in a particular manner. If the appellate or revisional authority takes upon itself the task of the statutory authority and passes an order, it remains unenforceable for the reason that it cannot be termed to be an order passed under the Act.” 8. The Court cannot shut its eyes to the fact that there is no allegation of the petitioner not being a qualified person for the post of Panchayat Teacher. She has been discharging duties as such since 7.2.2006. It is not the case of the respondents that they have received any allegations regarding dismal performance or incompetence for duty by the petitioner. She can certainly be said to have gained expertise and proficiency as a Teacher. She shall undoubtedly be in a better position to discharge duties as a Teacher than a new incumbent. It is not the case of the respondents that any scheduled caste candidate has been deprived consideration because of her appointment. On the contrary the order of the Tribunal clearly states that there was no claimant from the scheduled caste. If the reservation roster was to be carried for three years, had any claimant been there from the scheduled caste within that period the matter may or may not have been different. 9. Upon consideration of the entire matter whether it be the validity of the appointment not challenged within time, lack of jurisdiction when the Appellate Authority usurped the powers of the Block Development Officer or the long years of experience that the petitioner has acquired without there being any claimant from the scheduled caste category, the Court finds it difficult to uphold the validity of the impugned order dated 19.1.2010. It is accordingly set aside. The writ application stands allowed. ?