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2013 DIGILAW 1352 (PAT)

Kumari Sunita Sudha v. State Of Bihar

2013-11-29

KISHORE KUMAR MANDAL

body2013
ORDER Aggrieved by her non selection as untrained Prakhand Teacher against Scheduled Caste category in the selection process undergone by the selection committee of Panchayat Samiti Udakishunganj in the District of Madhepura the private respondent herein filed a writ petition being CWJC No. 9601 of 2008. This Court by an order dated 16.2.2010 (Annexure A to the counter affidavit of respondent no.10) dismissed the application giving liberty to the petitioner to file an appeal before the District Teachers’ Employment Appellate Authority/Tribunal which came into existence in terms of Rule 18 of the Bihar Panchayat Elementary Teacher (Employment & Service Conditions) Rule 2006 (for short ‘the Rule’). It was observed that in case such an appeal is preferred within one month it should be considered and decided on merit in accordance with law. Consequently, the respondent no.10 filed an appeal bearing Appeal Case No. 04 of 2010. The appellate Authority/Tribunal by order dated 22.6.11 (Annexure-6) after hearing the parties and analyzing the facts brought on record, allowed the same whereby selection and appointment of the writ petitioner was held illegal and the respondent no.10 was held entitled to be appointed to the post of Prakhand Teacher. The said order of the Tribunal dated 22.6.11 has been impugned in the present writ petition. 2. There is no dispute that the writ petitioner as well as the respondent no.10 both belong to Scheduled Caste category and both of them are untrained. The petitioner obtained 361 marks in the Intermediate level examination whereas the respondent no.10 obtained 431 marks in the Intermediate examination. As per the Rule provisions, the candidates obtaining higher percentage of marks in the Intermediate level examination is to be preferred. According to the petitioner, she made an application for appointment on 31.8.06 and on notice she appeared for counselling. Having been found most suitable she was selected and appointed. The respondent no.10 did not choose to appear in the counselling which was held on 29.9.06. On being selected the petitioner was offered appointment letter dated 22.11.07 and she joined as the Block Teacher, Upgraded Middle School, Rampur Deharu within Udakishunganj Block. The respondent no.10 did not file any grievance application before the competent authority against her such selection. The respondent no.10 did not choose to appear in the counselling which was held on 29.9.06. On being selected the petitioner was offered appointment letter dated 22.11.07 and she joined as the Block Teacher, Upgraded Middle School, Rampur Deharu within Udakishunganj Block. The respondent no.10 did not file any grievance application before the competent authority against her such selection. Instead, she filed a writ petition in this Court and in the light of the order dated 16.2.2010 she filed the appeal before the Tribunal which was allowed by the order dated 22.6.2011. The Tribunal erred in not considering the case of the petitioner while passing the aforesaid order and hence the writ petition. 3. Heard Mr. Sharda Nand Mishra for the petitioner, Mr. Bibhakar Tiwari for the respondent no.10 and counsel for the State. The parties have exchanged pleadings. 4. Learned counsel for the petitioner, while assailing the order of the Tribunal, has contended that although the petitioner obtained lesser percentage of marks than the respondent no.10 but the fact of the matter is that the respondent no.10 had not elected to appear in the counselling. It is next contended that the application was filed by the respondent no.10 beyond the time prescribed therefor. The order passed by the Tribunal is non speaking/non reasoned order inasmuch as the case of the petitioner has not been considered. The respondent no.10 has taken vacillating stand about filing of her objection/grievance against selection of the petitioner before the Authorities. This creates a serious doubt about filing any such application by the respondent no.10. 5. Learned counsel for the respondent no.10, on the other hand, submits that even from the report of BEO (Annexure-5) submitted on her grievance application it would appear that the application was filed by her within time. Filing application by her beyond the prescribed time was not an issue raised by the petitioner before the Tribunal. Such grievance is, therefore, being raised before this Court for the first time. The same is, therefore, fit to be rejected. Referring to the order dated 3.8.11 passed in the present case, it has been submitted that the petitioner initially submitted before this Court that she was not afforded due opportunity of hearing to her by the Tribunal. Such grievance is, therefore, being raised before this Court for the first time. The same is, therefore, fit to be rejected. Referring to the order dated 3.8.11 passed in the present case, it has been submitted that the petitioner initially submitted before this Court that she was not afforded due opportunity of hearing to her by the Tribunal. The order passed by the Tribunal and the order sheet of the said appeal enclosed along with the counter affidavit filed by the respondent no.10 amply demonstrate that adequate opportunity was afforded to both the parties including the writ petitioner. Drawing attention of the Court to the order passed by the Tribunal, it has been submitted that the same is well reasoned order. The Tribunal framed issues and discussed the materials placed on record by the parties and thereafter concluded that the appointment of the writ petitioner was made in an arbitrary /illegal manner. No fault, therefore, can be found with the said order passed by the Tribunal exercising extraordinary and discretionary writ jurisdiction of this Court. 6. On perusal of the order passed by the appellate Authority/Tribunal, it appears that the Tribunal considered the case of the parties in great detail. On perusal of the records of the selection process undergone in the present case and after hearing the parties it was found that the selection Committee without informing the respondent no.10 about the counselling permitted the petitioner to participate in the counselling scheduled to be held between 26.9.06 to 29.9.06. As per notice, counselling of trained candidates was scheduled from 26.9.06 to 29.9.06. On 29.9.06 the counselling of 14 applicants/candidates were done. Clandestinely the writ petitioner was shown to have participated in the counselling at Sl. No. 13, typed copy whereof has been enclosed as Annexure-1. In the column ‘Prashikshan’ it was shown 1988-90 against the writ petitioner. There is no controversy that the petitioner is an untrained candidate and pursued the Intermediate of Arts course between 1988-90. In all fairness, the respondent no.10 was entitled to be appointed against said post having secured higher percentage of marks than the writ petitioner in the Intermediate of Arts Examination. The Tribunal has recorded a clear finding that the case of the writ petitioner that in spite of notice the respondent no.10 did not appear at the counselling on the dates fixed for such counselling was not found substantiated. The Tribunal has recorded a clear finding that the case of the writ petitioner that in spite of notice the respondent no.10 did not appear at the counselling on the dates fixed for such counselling was not found substantiated. On the contrary, the Tribunal found that with a view to give undue advantage to the writ petitioner she was shown as trained candidate and was shown to have participated in the counselling on the dates which was fixed for counselling of the trained candidates only. As about delay in raising the issue before the appropriate authority against such selection of the writ petitioner the Tribunal on appreciation of the materials placed before it found that there was no undue delay in filing such application. This issue raised by the petitioner would not hold much water in view of the direction issued by this Court on the writ petition filed by the petitioner. The Tribunal afforded opportunity of hearing to both the parties and perused all the materials placed before it and passed the order which appears to be well reasoned. This Court does not find any illegality much less patent illegality in the order passed by the Tribunal meriting interference therewith. The application lacks merit. Dismissed. 7. No costs.