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2013 DIGILAW 360 (PAT)

Digvijay Kumar v. State Of Bihar

2013-03-15

AJAY KUMAR TRIPATHI

body2013
ORDER A piquant kind of situation has arisen in the present writ application in a circumstance which is required to be noted in some detail. 2. The issue relates to appointment of Panchayat Teacher under Gram Panchayat Raj Sahil Rampur in the district of Muzaffarpur. In the earlier round of exercise for such selection or appointment, counseling was done on 22.12.2006, but then given a go-bye. At the intervention of the Block Education Extension Officer, who gave a direction that the selection list so prepared was not in accordance with rules or the law, a second round of counseling, therefore, was held on 29.12.2006. In this counseling private-respondent came to be appointed, which was objected to by the present petitioner who moved the erstwhile Appellate Authority or the designated authority, i.e., Block Development Officer, Bochahan in the district of Muzaffarpur. A detailed order of the Block Development Officer is Annexure-13 to the writ application. This order annulled the appointment of the private-respondent. The order is dated 04.02.2008. 3. Aggrieved by this order, the private-respondent moved the High Court by filing a writ application. Writ application was heard and disposed off with an observation that the petitioner of that case was free to move the District Teachers Employment Appellate Tribunal, which was in place. When the writ application was disposed off, the Tribunal was supposed to take the place of the Block Development Officer as the forum for such adjudication. Order of the Learned Single Judge of the High Court is Annexure-17. 4. Armed with this order, the private-respondent moved the Tribunal. The Tribunal’s decision contained in Annexure-18 has now been rendered which has a fall out upon the present petitioner and, therefore, the present writ application. 5. Learned senior counsel representing the petitioner contends that when the order was passed by the Block Development Officer on 04.02.2008, he was the competent authority to hear such disputes. Creation of the Tribunal is a subsequent event, which came into existence by virtue of notification, dated 25.08.2008. Tribunal was vested with the jurisdiction instead of the Block Development Officer. Therefore, any order which had already been passed by the Block Development Officer fully and finally could not be put through any scrutiny by a forum which had coordinate power vested in it. The Tribunal was not an Appellate Authority over and above the Block Development Officer. Tribunal was vested with the jurisdiction instead of the Block Development Officer. Therefore, any order which had already been passed by the Block Development Officer fully and finally could not be put through any scrutiny by a forum which had coordinate power vested in it. The Tribunal was not an Appellate Authority over and above the Block Development Officer. Therefore, the order of the Block Development Officer was not amenable to any judicial scrutiny by the Teachers Employment Appellate Tribunal. 6. Learned senior counsel relies on a decision, which has been rendered by a Division Bench of this Court in the case of State Election Commission Vs. Punam Kumari reported in 2009 (2) PLJR 189 . Reliance has been placed on paragraph 10 of the said decision, which according to the learned senior counsel has relevance and squarely covers the present situation. Paragraph 10 of the said decision is reproduced hereinbelow. “10. As noted above, on the basis of the judgment and order under appeal the matter has been gone in by the Commission and the Commission has rendered a decision. The question is whether the decision is valid or not. For what we have discussed above it appears to us that the disqualification mentioned in Section 135 of the Act cannot be gone in by the Commission. The Commission being a creature of the Statute can function and discharge its duties within the four corners of the Statute and cannot assume or be vested with any power which has not been vested in it by the Statute. If the Commission had no authority to go into the question, as was decided by it, such authority could not be vested in it by exercising power under Article 226 of the Constitution of India, for the simple reason that the Article 226 authorizes the Court to uphold legal right of a citizen which right stands vested in the citizen and that signifies that the writ court cannot vest any right in a citizen which does not vest in him (emphasis mine). That being the situation, the conclusion would be that the decision of Election Commission rendered on the basis of the command of the writ court being a decision rendered by a Forum non-juris, the same is invalid.” 7. That being the situation, the conclusion would be that the decision of Election Commission rendered on the basis of the command of the writ court being a decision rendered by a Forum non-juris, the same is invalid.” 7. Taking into consideration the ratio of the decision of the Division Bench, the present case could also be said to be of similar kind in the sense that there was no occasion for the Learned Single Judge to create any jurisdiction in the Tribunal. Merely because a Tribunal had come into place by the date the High Court order was passed. What is of significance is that the order of the Learned Single Judge was passed on the so called prayer or request of the private-respondent himself. Mere disposal of the writ application with such a liberty would not amount to vesting jurisdiction in a forum which do not have jurisdiction, because at the cost of repetition, it can be fairly and squarely said that the Tribunal was not created as an Appellate Authority over the decision of the earlier designated authority, namely, Block Development Officer. 8. No doubt, in matters, which remained pending before the Block Development Officer and in which orders were not finally passed, such matters or disputes could go before the Tribunal, but that was not the issue in the present case. The order contained in Annexure-13 has been passed in the month of February, 2008 at a point of time, when there was no Tribunal contemplated or in the horizon. Any adjudication on the said order of B.D.O. could only have been made at the level of the High Court. Despite approaching the High Court, challenging the order of the Block Development Officer, the private-respondent missed the basic essence of law that the order of BDO could not be put under review by knocking at or invoking the jurisdiction of the Tribunal at the instance of the observation made by the High Court. 9. Learned counsel for the private-respondent submits that the order of the Block Development Officer has been passed without hearing him and to that extent the order is required to be interfered with. There are many other submissions with regard to the correctness or otherwise of the decision of the Block Development Officer. 9. Learned counsel for the private-respondent submits that the order of the Block Development Officer has been passed without hearing him and to that extent the order is required to be interfered with. There are many other submissions with regard to the correctness or otherwise of the decision of the Block Development Officer. But with due respect to learned counsel for the private-respondent, this Court is not evaluating the correctness or otherwise of the order of the Block Development Officer. The issue raised in the present Writ application is the correctness of the order of the Tribunal contained in Annexure-18 and whether the tribunal could entertain the complaint of the private-respondent and re-adjudicate the issue. 10. In my opinion the Tribunal had no power to sit in appeal against a final order of Block Development Officer and, therefore, any order rendered by the Tribunal is beyond jurisdiction with no effect. 11. The writ application is allowed. The impugned order, contained in Annexure-18, dated 26.07.2010 passed in Case No. 7 of 2010 is hereby quashed. 12. Before parting, the Court would like to record for future reference that the Tribunals must ensure that they will not entertain any application for adjudication against a final decision of a Block Development Officer, as they do not have any power in this regard to sit in appeal or review such decisions.