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2012 DIGILAW 1612 (PAT)

Raj Kishore Dinkar v. State Of Bihar

2012-12-03

NAVIN SINHA

body2012
ORAL ORDER Both the writ applications arise out of order dated 29.8.2012 passed by the District Teachers Employment Appellate Tribunal, Motihari in Case No.627/11. The three petitioners in C.W.J.C. No.19312/12 were applicant Nos.4, 2 and 1 respectively before the Tribunal. Applicant No.3 is not before the Court. In question was the appointment of the petitioners in C.W.J.C. No.16917/12 along with one Manish Verma and Fatima Begum impleaded as party respondents in both applications also. Since the parties between whom the dispute substantively arises are before the Court as petitioner and respondents respectively in both applications, they are being disposed by this common order. 2. The three petitioners in C.W.J.C. No.19312/12 were appointed as Shikshamitra in the year 2004. A complaint with regard to the same was made by the two petitioners in C.W.J.C. No.16917/12 along with the aforesaid Manish Verma and Fatima Begum. A three member enquiry committee report was submitted on 30.3.2007 that the appointment of the three in C.W.J.C. No.19312/12 was contrary to law for reasons mentioned in the report. In the meantime, the petitioners in C.W.J.C. No.16917/12 preferred Appeal Case No.92/09 before the Tribunal. The Tribunal on 9.9.2009 directed to act in accordance with the three member enquiry committee report in accordance with law. The petitioners in C.W.J.C. No.19312/12 came to be removed from service on 31.1.2008/1.2.2008, indisputably without any show cause notice or opportunity to defend their appointments. They were not impleaded as party in Case No.92/09 also. The petitioners in C.W.J.C. No.16917/12 came to be appointed on 7.5.2009 pursuant to the order in Case No.92/09. 3. The petitioners in C.W.J.C. No.19312/12 challenged their removal before the Court. Having been relegated to the Tribunal, the impugned order came to be passed. 4. The Tribunal in the impugned order has held that the petitioners in C.W.J.C. No.16917/12 could not have been appointed as their claim originated against a wrong denial of appointment on the post of Shikshamitra, a post which stood abolished from 1.7.2006. It also held that the appointment of the petitioners in C.W.J.C. No.19312/12 was contrary to the law relying on certain government communications. It also held that the appointment of the petitioners in C.W.J.C. No.19312/12 was contrary to the law relying on certain government communications. The report of the three member enquiry committee was brought to the attention of the Tribunal by the petitioners in C.W.J.C. No.16917/12, but it does not appear from the order of the Tribunal that a copy of the three member enquiry committee report was placed before it and that it had the occasion to consider the same. 5. Learned counsel for the petitioner in C.W.J.C. No.16917/12 has relied upon a Bench decision reported in 2012(1) P.L.J.R. 107 (Rima Kumari vs. State of Bihar) to contend that if the petitioners in C.W.J.C. No.19312/12 were wrongly appointed as a Shikshamitra and their term renewed, mere continuance on 1.7.2006 upon promulgation of the Bihar Panchayat Primary Teachers (Appointment and Service Conditions) Rules, 2006 would not condone the illegality in the appointment and permit them to retain the benefit. Unfortunately for him, the same judgment holds that the petitioners in C.W.J.C. No.16917/12 are not entitled to any relief after 1.7.2006 and creation of the post of Panchayat Shikshak pursuant to alleged wrongful denial as Shikshamitra in 2004 on the ground that the post stood abolished. 6. In C.W.J.C. No.4332 of 2007 a similar view has been taken, affirmed in L.P.A. No.393 of 2008. That clinches the issue insofar as the petitioners in C.W.J.C. No.19312/12 are concerned and there is no occasion for the Court to find fault with the order of the Tribunal with regard to them. C.W.J.C. No.16917/12 is therefore dismissed. 7. Insofar as the petitioners in C.W.J.C. No.19312/12 are concerned, their removal on 31.1.2008/1.2.2008 without a show cause notice or hearing purportedly in pursuance of the order of the Tribunal in Appeal Case No.92/09 is apparently not sustainable. They may have been entitled to an order for reinstatement on ground of that procedural illegality but for the three member enquiry committee report brought by the petitioner in C.W.J.C. No.16917/12. The order of the Tribunal notices that the official respondents did not produce any selection records. It does not appear from the order of the Tribunal that the enquiry report was placed before it. It was certainly a relevant material for proper adjudication by the Tribunal. The decision that may have followed from the Tribunal after examining the same is an entirely different matter. It does not appear from the order of the Tribunal that the enquiry report was placed before it. It was certainly a relevant material for proper adjudication by the Tribunal. The decision that may have followed from the Tribunal after examining the same is an entirely different matter. It is therefore held that the order of the Tribunal with regard to the petitioners in C.W.J.C. No.19312/12 stands vitiated as relevant materials were withheld from the Tribunal for effective adjudication. The Court however in its discretionary jurisdiction declines immediate reinstatement to them only for violation of Principles of Natural Justice. 8. Learned counsel for the petitioner in C.W.J.C. No.19312/12 has relied upon 2009(4) P.L.J.R. 318 (Chandradeo Prasad vs. State of Bihar) and 2009(2) P.L.J.R. 929 (Alok Kumar vs. State of Bihar) to contend that once they acquired the status of a Panchayat Shikshak on 1.7.2006 pursuant to initial appointment as a Shikshamitra, the past appointment was a closed chapter and the nature of the initial appoint could not be gone into. 9. Having gone through the two judgments, the Court finds it difficult to hold that any such proposition has been laid down contrary to the specific findings in this regard in the case of Rima Kumari (supra) relied upon by the petitioner in C.W.J.C. No.16917/12. 10 The impugned order of the Tribunal in Case No.627/11 in its present form is therefore held to be unsustainable with regard to the petitioners in C.W.J.C. No.19312/12. This shall not result in reinstatement, as observed earlier. The Tribunal shall hear them afresh including any other appointment challenged by them excluding the petitioners in C.W.J.C. No.16917/12. The Tribunal shall then pass a fresh reasoned order considering all aspects of the matter including the three member enquiry committee report dated 3.3.2007. Once the order in Case No.627/11 has been set aside by the Court, it cannot be looked into by the Tribunal for any purpose and there has to be a fresh reasoned order. Dependent on the fresh order that may be passed by the Tribunal, the authorities shall proceed further in the matter including publication of fresh advertisement, if required, in which the parties can undoubtedly apply afresh to be considered in accordance with law on the post of Panchayat Shikshak. 11. The application stands disposed.