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2013 DIGILAW 1417 (PAT)

Faiyaz Ahmed v. State of Bihar

2013-12-10

KISHORE K.MANDAL

body2013
ORDER In all the three writ petitions, order dated 26.12.2009 passed by the District Teachers Appointment Appellate Tribunal, Araria (for short “the Tribunal”) passed in Case No. 01/2008 has been challenged. Certain consequential reliefs have also been prayed. They have thus been clubbed together and heard with the consent of the parties. The order present shall govern them. 2. Relevant background facts of the case shall be noticed from C.W.J.C. No. 1168 of 2010. This Court would also notice few more relevant facts stated in C.W.J.C. Nos. 1783 of 2010 and C.W.J.C. No. 9200 of 2010. 3. In the year 2006, an advertisement was published at the State Government level for appointment of Panchayat Teachers (for short “PTs”) in different Gram Panchayats within the State of Bihar. Present case relates to appointment of PTs in Gram Panchayat Raj Raghunathpur South under Bhargama Block in the district of Araria. 15 posts in different categories fell for appointment within the said Gram Panchayat. According to the writ petition, four posts were un-reserved. Out of remaining vacancy, four (04) were for unreserved (female), one post each was reserved for EBC, EBCF, SC, SCF, BC-I, BCF-I and RF. The appointments were to be made in accordance with the Bihar State Primary Teachers (Employment and Service Conditions) Rules, 2006 (for short “the Rules”) The minimum educational qualification for the PTs was Intermediate or equivalent. The petitioners filed applications enclosing necessary documents for appointment on the post of PTs. As per pleadings, 15th October to 17th October, 2006 were the dates fixed for counseling of the applicants. The petitioners claimed to have participated therein. On 10.11.2006, a panel on the basis of marks obtained in the Intermediate examination for different category was prepared for those candidates/applicants who had participated in the counseling. The petitioners have enclosed the merit list/panel prepared after such counselling at Annexure-2 series. The documents were thereafter verified. The merit list/panel was thereafter published inviting objection. No objection was filed by any one. The respondents in the first phase appointed altogether six (06) applicants/candidates who were issued appointment letters on 5.4.2007. The appointees besides the trained applicants include petitioner no. 4, petitioner no. 3 and petitioner no. 1 (all untrained candidates). Petitioner nos. 1, 3 and 4 were appointed against the post reserved for SC, unreserved and EBC category respectively. The respondents in the first phase appointed altogether six (06) applicants/candidates who were issued appointment letters on 5.4.2007. The appointees besides the trained applicants include petitioner no. 4, petitioner no. 3 and petitioner no. 1 (all untrained candidates). Petitioner nos. 1, 3 and 4 were appointed against the post reserved for SC, unreserved and EBC category respectively. On being appointed, they were posted in different schools where they claim to have joined on 5.5.2007. One of those appointees in the first phase namely Rubi Kumari died and, as such, 10 posts of PTs remained unfilled. The respondents initiated second stage of appointment on 5.6.2007 and a merit list was published. No objection was filed by any one within the stipulated time. Four (04) candidates were appointed in the second phase who all joined. Some seats still remained vacant and, as such, the respondents initiated third phase of appointment and a merit panel was again published against which no objection was filed. In the third phase, five (05) were appointed which include petitioner no. 5 (UR category) Petitioner nos. 2 and 6 were subsequently appointed under UR category on 29.6.2007 and they claimed to have jointed the post. The petitioners claimed to have undergone training successfully thereafter. The respondent nos. 7 to 16 who were also applicants filed a complaint before the respondent Block Development Officer alleging large scale illegalities committed in the selection process by the respondents with a view to favour the petitioners. The respondent Block Development Officer gave notice to the petitioners as well as the complainants and after perusing the materials placed on record submitted a report to the higher authorities on 14.6.2008 (Annexure-6). In the said report, the Block Development Officer found some of the appointments having been made by the respondents by adopting unfair means which had maligned the process of selection. Four of the appointees (petitioners of C.W.J.C. No. 1783 of 2010) were found illegally appointed and were directed to be removed. In so far as the other appointees were concerned, it was directed that their educational certificates and training certificates should be verified. In the meantime, the Tribunal constituted under Rule 18 of the Rules came into existence. The respondents filed an application raising a grievance with respect to wide spread illegalities committed by the Selection Committee of the concerned Gram Panchayat in the appointment of PTs. In the meantime, the Tribunal constituted under Rule 18 of the Rules came into existence. The respondents filed an application raising a grievance with respect to wide spread illegalities committed by the Selection Committee of the concerned Gram Panchayat in the appointment of PTs. The Tribunal issued notice to all concerned and thereafter passed an order dated 26.12.2009 (Annexure-1) in Case No. 01/2008 whereby on a perusal of the facts brought on record, it was found that the entire selection process had vitiated due to large scale illegalities and irregularities committed by the Selection Committee wherein the eligible candidates like the applicants were designedly left out from consideration. The appointment of only the trained candidates in the light of the relevant provisions of the rule and the circular were held valid. Accordingly, the selection and appointment of the writ petitioners were declared illegal obtained by illegal/culpable methods. Those appointments were directed to be terminated inasmuch as the persons constituting the Selection Committee including the Mukhiya was/were directed to be proceeded against by filing criminal case and for taking steps for his removal from the post of as the Mukhiya heads the Selection Committee. The respondents including the Selection Committee of the concerned Gram Panchayat was directed to initiate process of selection afresh and after providing an opportunity to the applicants/candidates to participate in the counseling under the supervision of the Block Development Officer, fresh selection and appointment was directed to be made. The said order has been impugned in the present writ petition. 4. In C.W.J.C. No. 1783 of 2010, the petitioners were found appointed illegally by both the Block Development Officer as well as the Tribunal by the impugned order 26.12.2009. Being aggrieved by the order dated 14.6.2008 passed by the respondent Block Development Officer, the petitioners had filed C.W.J.C. No. 14233 of 2008 which was dismissed as withdrawn on 1.9.2010 noticing the submission of the petitioner(s) that a separate writ application (C.W.J.C. No. 1783 of 2010) was filed by the petitioner. 5. Being aggrieved by the order dated 14.6.2008 passed by the respondent Block Development Officer, the petitioners had filed C.W.J.C. No. 14233 of 2008 which was dismissed as withdrawn on 1.9.2010 noticing the submission of the petitioner(s) that a separate writ application (C.W.J.C. No. 1783 of 2010) was filed by the petitioner. 5. In C.W.J.C. No. 9200 of 2010, the writ petition filed by the petitioner was disposed of by order dated 9.2.2011 whereby considering the large scale illegalities committed by the respondents in the selection process, the order passed by the Tribunal was not interfered with and the petitioner was directed to participate in the counseling if he fulfilled the criteria/requirement which was directed by the Appellate Authority/Tribunal in the order. Aggrieved by the said order, the petitioner filed L.P.A. No. 722 of 2011. The writ appeal court having regard to the submissions made by the petitioner that two writ petitions being C.W.J.C. No. 1783 of 2010 and C.W.J.C. No. 1168 of 2010 questioning the same order passed by the Tribunal were pending consideration before this Court, set aside the order and directed the writ application to be considered along with those writ petitions. That is how the writ petition has been placed with these writ petitions for consideration and disposal. 6. Heard Mr. Rajeev Kumar Singh (in C.W.J.C. No. 1783 of 2010), Sri Rajendra Prasad Singh (in C.W.J.C. No. 1168 of 2010) and Dr. Shashi Shekhar Kishore (in C.W.J.C. No. 9200 of 2010) for the petitioners, Mr. Dhirendra Kumar Jha for the private respondents and counsel for the State. Parties have exchanged pleadings. 7. Mr. Rajendra Prasad Singh learned senior counsel submitted that the Tribunal erred in exercising jurisdiction in the matter as under the scheme of the Rules, no such application was/is maintainable. The private respondent had filed an application before the Block Development Officer prior to the constitution of the Tribunal. The said matter was considered and disposed of whereby some of the appointments (petitioners in C.W.J.C. No. 1783 of 2010) were only found to have been illegally made. In so far as the other appointees are concerned, the respondent Block Development Officer did not direct termination of their services. The Tribunal having replaced the Block Development Officer by virtue of amendment brought in the Rule effective from 25.8.2008, the matter could not have been raised before the Tribunal. No second appeal is provided under the Rule. In so far as the other appointees are concerned, the respondent Block Development Officer did not direct termination of their services. The Tribunal having replaced the Block Development Officer by virtue of amendment brought in the Rule effective from 25.8.2008, the matter could not have been raised before the Tribunal. No second appeal is provided under the Rule. The order dated 14.6.2008 (Annexure-6) passed by the Block Development Officer has not been challenged in this proceeding. The said order has, therefore, become final. In order to support his contention, he has relied on 2013 (2) P.L.J.R. 893 (Digvijay Kumar Vs. The State of Bihar and Ors.). 8. Mr. Rajeev Kumar Singh making arguments in support of C.W.J.C. No. 1783 of 2010 contended that although the petitioners were held illegally appointed by the respondent Block Development Officer but the said order was challenged before this Court by the petitioners in C.W.J.C. No. 14233 of 2008 wherein an interim order for maintaining status quo was passed. The said writ petition was subsequently dismissed as withdrawn since the petitioners had filed the present writ petition. The Tribunal could not have passed the order respecting the petitioners in the light of interim order passed by this Court in C.W.J.C. No. 14233 of 2008. 9. The counsel for the petitioners of C.W.J.C. No. 9200 of 2010 simply adopted the submissions made by Mr. Rajendra Prasad Singh. 10. Combating those submissions, counsel for the private respondents submitted that it is a case where large scale illegalities was/were committed by the official respondents which have resulted in appointments contrary to the provision of the Rules completely disregarding the claim of the respondents who had superior rights to be appointed in diverse categories. The allegations of illegalities committed in wholesome manner by the official respondents on the basis of part of the documents produced before the Block Development Officer were found substantiated. A bare perusal of the order of the Block Development Officer would reveal that official records pertaining to some of the petitioners were not produced before the respondent Block Development Officer. The appointments were made in several phases. Official records of some of the proceedings were only produced before him. Based on the enquiry made in the light of those records, the Block Development Officer found the appointments of some of the persons selected/appointed were made illegally and directed for their removal. The appointments were made in several phases. Official records of some of the proceedings were only produced before him. Based on the enquiry made in the light of those records, the Block Development Officer found the appointments of some of the persons selected/appointed were made illegally and directed for their removal. With regard to others, a direction was issued to verify the educational and other certificates produced by them. This was with a view to consider the grievance relating to those appointees. Since the matter with respect to them remained undecided by the Block Development Officer the respondents filed appeal before the Tribunal which had replaced the Block Development Officer wherein the matter was considered and after providing opportunity of hearing to both the parties and on perusal of the entire records, the Tribunal also found and held that the entire selection process for the reasons recorded therein stood vitiated in law. There was large scale bunglings committed by the Selection Committee in order to grant undue advantage to those favoured ignoring the bona fide claim of others including the applicant(s) (respondents herein). The Tribunal while setting aside the appointment(s) directed for recounseling of all the eligible candidates under the strict supervision of authority. Even if Tribunal is held to have no jurisdiction in the matter, the order does not merit to be interfered with since no prejudice is caused to the writ petitioners. If they have valid/genuine certificates and higher percentage of marks, they shall be eventually selected and appointed. The order of the Tribunal has caused no prejudice to any one including the petitioners. It has next been argued that from perusal of the provisions of the Rules, it does not appear that any such application/appeal is barred. In order to invoke the discretionary writ jurisdiction of this Court, the petitioners are legally obliged to demonstrate that non-invocation thereof would result in serious miscarriage of justice. In support of his contention, he has relied on a Division Bench judgment of this Court in the case of Kumari Gayatri Devi Vs. The State of Bihar [ 2013 (4) P.L.J.R. 341 ]. 11. On a consideration of rival submissions of the parties, it appears the sheet anchor of the challenge to the order passed by the Tribunal is lack of jurisdiction vested in the Tribunal to consider the appeal preferred by the private respondents. The State of Bihar [ 2013 (4) P.L.J.R. 341 ]. 11. On a consideration of rival submissions of the parties, it appears the sheet anchor of the challenge to the order passed by the Tribunal is lack of jurisdiction vested in the Tribunal to consider the appeal preferred by the private respondents. According to the petitioners, the private respondents had filed the appeal aggrieved by the order dated 14.6.2008 of the respondent Block Development Officer (Annexure-6). The contention is that the respondent Block Development Officer during the relevant time was the competent authority where such grievance relating to appointment of PTs could be raised. In fact, such a grievance was raised which was considered and disposed of by the Block Development Officer. The Tribunal was subsequently constituted by amending Rule 18 of the Rules. No appeal against the order of the Block Development Officer was maintainable. In order to appreciate the said contention of the petitioners, this Court would first examine whether the matter was finally disposed of by the respondent Block Development Officer. According to the petitioners, the selection and appointment of PTs in the Gram Panchayat in question was concluded in several phases. The Block Development Officer in his order dated 14.6.2008 (Annexure-6) has noticed that records of the Selection Committee with respect to only two phases were produced before him. Thos records were examined whereafter it was found and held that selection and appointment of some of the PTs (petitioners in C.W.J.C. No. 1783 of 2011) was the result of large scale illegalities committed by the respondent authorities and they were directed to be terminated. As about the other grievance relating to some of the present batch of writ petitions, a direction was issued to verify the genuineness of their certificates with reference to the records of the Selection Committee. The matter, therefore, was not disposed of finally as something more was required to be done by the Block Development Officer in the light of enquiry so directed by him under the said order. The grievance of the applicants (respondents herein), therefore, remained partly adjudicated upon and resolved. In the meanwhile, the Tribunal came into existence. The authority vested in Block Development Officer prior to amendment in the Rule was now vested in the Tribunal. The grievance of the applicants (respondents herein), therefore, remained partly adjudicated upon and resolved. In the meanwhile, the Tribunal came into existence. The authority vested in Block Development Officer prior to amendment in the Rule was now vested in the Tribunal. In such circumstances, the private respondents moved the Tribunal for resolution of their grievance relating to other appointees which was made in phased manner. The finding of the Block Development Officer of large scale illegalities committed by the members of the Selection Committee in appointment of some of the petitioners was not made the subject matter of challenge. This is apparent from the fact, which is not in dispute, that appointment of remaining PTs (writ petitioners herein) made in the same selection process which, according to the petitioners, continued in several phases was/were not upheld. On perusal of the order passed by the Block Development Officer (Annexure-6), it is explicit that consideration of grievance raised against the other appointees could not be made owing to non-furnishment/production of related records of the third phase or 4th phase of selection. The Block Development Officer, therefore, directed further enquiry and verification of certificates etc of the remaining selected/appointed PTs. The Block Development Officer based on appraisal of the part of the records produced before him, however, found that the selection process adopted by the Selection Committee was soaked with nepotism and favouritism and were carried out in gross violation of the prescribed procedure therefor. Before the Tribunal, the parties were heard and records were produced. The Tribunal upon careful perusal of the records and after hearing the parties concurred with the view taken by the Block Development Officer that the entire selection process undertaken by the respondents had vitiated in law due to the wholly unfair and illegal procedure adopted by the Selection Committee. The order of the Tribunal clearly records those illegalities which go to the root and vitiates the entire selection process. This Court, therefore, does not find substance in the submission of the petitioners that the matter was finally disposed of by the Block Development Officer and the correctness/legality thereof was challenged before the Tribunal. Once this Court finds the above, then the submission of the petitioner that the Tribunal lacked jurisdiction in entertaining and passing the impugned order falls to ground. 12. Once this Court finds the above, then the submission of the petitioner that the Tribunal lacked jurisdiction in entertaining and passing the impugned order falls to ground. 12. Counsel for the petitioners of C.W.J.C. No. 1783 of 2010 has contended that the Tribunal could not have passed any order against them in view of an interim order passed on 13.2.2009 on their writ petition being C.W.J.C. No. 14233 of 2008. The said contention appears to be misplaced. The writ petition was ultimately sought to be withdrawn by the petitioners. The Tribunal in its order has found that the grant of status quo by this Court on 13.2.2009 was not a hindrance in view of the order passed by the Block Development Officer on 14.6.2008 whereby the petitioners had already been directed to be terminated from service. This Court would thus find no error in the order passed by the Tribunal on the said ground. In the subsequent writ petition filed by the petitioners (C.W.J.C. No. 1783 of 2010), no such interim order was passed by this Court. The writ petition, as noticed above, earlier filed by the petitioners was ultimately sought to be withdrawn. 13. Furthermore, in the exercise of its power under Article 226 of the Constitution of India, this Court would consider whether substantial justice, in the facts and circumstances of the case, has been meted out to the parties. The Block Development Officer upon perusal of part of the records produced before him and considering the stand of the parties found that selection process undertaken by the respondents had become malignant. Based on records, appointment of some of the appointees (petitioners of C.W.J.C. No. 1162 of 2010) were held illegal and they were directed to be terminated. With regard to the other appointees, in absence of the furnishment of relevant documents no adjudication was made. Their appointment(s) was/were not upheld. On the contrary, the Block Development Officer directed further verification/scrutiny of certificates relating to other appointees with reference to the records of the Selection Committee. The Tribunal on consideration of submissions of the parties also came to the same conclusion and held that the selection/appointment of remaining appointees were also made in similar manner and, therefore, those appointments were also declared illegal/vitiated in law. The Tribunal on consideration of submissions of the parties also came to the same conclusion and held that the selection/appointment of remaining appointees were also made in similar manner and, therefore, those appointments were also declared illegal/vitiated in law. Having done so, the Tribunal directed for fresh counseling of the petitioners as well as the respondents under the supervision of the Block Development Officer providing an opportunity to both the parties for being selected and appointed in accordance with the laid down procedure. The said order of the Tribunal, therefore, does not prejudice the petitioners. If they have rightful and superior claim, they shall be selected. This is another aspect of the matter which has persuaded this Court not to invoke its extraordinary and discretionary writ jurisdiction. This Court may usefully notice the view expressed by a Division Bench of this Court in the case of Kumari Gayatri Devi @ Gayatri (supra) rendered in somewhat analogous circumstance(s) whereby interference with the order impugned therein was declined and it was observed as under in paragraph 9:– “We feel no difficulty in expressing the view that if any of the individual teachers affected by the impugned order has sufficient merit and eligibility he/she will have a good chance of getting reappointed on the post in question. Hence, no real prejudice will be caused to the meritorious individuals because the process of selection has to be done afresh in which all eligible persons will be entitled to apply. The fresh process must be conducted fairly under proper supervision of responsible officials authorized by the District Magistrate, Araria.” 14. For the reasons abovenoted, this Court declines interference with the impugned order dated 26.12.2009 passed by the Tribunal in Case No. 01/2008. Let the respondents carry out the direction(s) issued by the Tribunal as quickly as possible preferably within 10 weeks from the date of receipt/production of a copy of this order before respondent Nos. 5 and 7. 15. All the three writ applications are dismissed. There shall be no order as to costs.