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2013 DIGILAW 885 (PAT)

Gopal Kumar Thakur v. State of Bihar

2013-07-26

MIHIR KUMAR JHA

body2013
CAV JUDGMENT Heard learned counsel for the parties. 2. The prayer of the petitioner in this writ application reads as follows:- "------- for the quashing of the order dated 8/9/11 issued by the Respondent No.2 in Case No. 37/11, as contained in Memo No. 734, dated 8/9/11 whereby and where under the appointment of the petitioner as Nagar Panchayat Higher Secondary Teacher has been cancelled. Further the consequential orders as contained in Memo No. 667 and Memo No. 595, dated 3/4/12 and 13/4/12 issued by the Deputy Development Commissioner, Jamui and District Programme Officer, Jamui respectively whereby and whereunder it has been ordered that the appointment made on or after 8/1/11 will be cancelled.” 3. Learned counsel for the petitioner in support of the aforementioned prayer has submitted that a bare reading of the order passed by the District Teachers Employment Appellate Tribunal, Jamui (hereinafter to be referred to as ‘the Tribunal’) would go to show that no notice of the case filed by the respondent no.9 had been served on the petitioner and yet the Tribunal had passed an adverse order directly affecting the interest of the petitioner whose continuance in service has been brought to an end by the impugned order passed by the Tribunal. He has further submitted that even the two consequential orders, one passed by the Deputy Development Commissioner, Jamui dated 3.4.2012 and the order passed by the District Programme Officer (Establishment) Jamui dated 13.4.2012 as contained in Annexure-2 & 3 to the writ application have also been passed without affording an opportunity of hearing to the petitioner. 4. Proceeding further, he has submitted that the appointment of the petitioner on the post of Biology Teacher was made on the basis of his being a candidate of Most Backward Category (EBC) for which the post of Biology Teacher was reserved. Mr. Singh in this regard has submitted that there would be no comparison between the case of the petitioner and that of the respondent no.9, inasmuch as, the respondent no.9 was a candidate of General category and, therefore, if the post of Biology Teacher was not reserved for General category, he could not have been appointed against the post on which the appointment of the petitioner was made. Reliance in this regard has also been placed on a roaster communicated by the District Education Officer, Jamui in the letter dated 29.11.2008 to show that out of sixteen vacancies, three of them were meant for Most Backward Category and only eight posts were earmarked for General category. 5. Ms. Nivedita Nirvikar, learned counsel for the State while defending the impugned orders contained in Annexure Nos. 1, 2 & 3 has submitted that from the order of the Tribunal, it would be clear that the petitioner had not appeared before the Tribunal despite issuance of notice by the Tribunal to him. As with regard to the Annexure 2 & 3, it is her case that since they were only by way of implementation of the order of the Tribunal, no notice was required to be served on the petitioner. In this regard, she has also drawn attention of this Court towards an order dated 25.6.2012 in CWJC No. 10609 of 2012 wherein the same impugned order of the Tribunal was not interfered with by this Court by holding that since the enquiry as directed by the Tribunal had not been held, the decision of the Tribunal alone could not be treated as an order of termination of the concerned teacher. 6. Learned counsel for the respondent no.9, having almost adopted the submission of Mrs. Nivedita Nirvikar, learned counsel for the State, has only made further addition that the Deputy Development Commissioner, Jamui after passing of the impugned order as contained in Annexure-2 had gone to issue notice to all concerned including the petitioner and, thereafter, on 22.6.2013, a decision was taken for cancelling the appointment of the petitioner and its being substituted by the appointment of respondent no.9. 7. Having regard to the materials on record and the aforementioned submissions, the first and foremost question would be as to whether the petitioner was issued notice by the Tribunal. In this regard, whatever has been recorded by the Tribunal in the impugned order by itself would be sufficient to hold that no notice was ever served on the petitioner. 7. Having regard to the materials on record and the aforementioned submissions, the first and foremost question would be as to whether the petitioner was issued notice by the Tribunal. In this regard, whatever has been recorded by the Tribunal in the impugned order by itself would be sufficient to hold that no notice was ever served on the petitioner. The Tribunal in this regard had held as follows:- ^^&&&&&ekeys dh foLr`r tkudkjh ,oa uSlfxZd U;k; ds n`f”Vdks.k ls fu;ksftr lHkh f’k{kdksa dks lnL; lfpo ds ek/;e ls izkf/kdkj ds i=kad 669 fnukad 30-07-2011 }kjk dkj.k i`PNk dh ekax dh xbZA izkf/kdkj ds mDr i= dks lacaf/kr inkf/kdkjh }kjk izkIr ugha fd;k x;kA mDr laca/k esa izkf/kdkj ds i=kad 682 fnukad 12-08-2011 }kjk ftyk f’k{kk inkf/kdkjh teqbZ ls i=kpkj dh xbZ ,oa mUgha ds ek/;e ls izkf/kdkj ds i=kad 683 fnukad 12-08-2011 }kjk dkj.k i`PNk dh izfr layXu djrs gq, fnukad 06-09-2011 dks lquokbZ esa mifLFkr djkus dk vuqjks/k fd;k x;k ysfdu iqu% vuqjks/k djus ds ckotwn dksbZ Hkh ftyk Lrj ds f’k{kk foHkkx ds inkf/kdkjh u rks mifLFkfr gq, vkSj u gh muds }kjk fnukad 08-01-11 dks fu;qDr fd;s x;s f’k{kdksa dks lquokbZ ds nkSjku dkj.k i`PNk nkf[ky djus ds fy, mifLFkr djkuk lqfuf’pr fd;k x;kA Qyr% lwpuk ds ckotwn Hkh dksbZ Hkh fu;ksftr f’k{kd dkj.k i`PNk nkf[ky djus ds fy, mifLFkr ugha gq,A iwoZ esa ckj&ckj vuqjks/k djus ij Hkh rRdkfyu lnL; lfpo lg vuqeaMy f’k{kk inkf/kdkjh teqbZ izkf/kdkj }kjk vihyh; oknksa ds lquokbZ ds nkSjku mifLFkr ugha gq, vkSj lquokbZ dk;Z esa dksbZ lg;ksx ugha fn;kA** 8. As would be apparent, it was the Member Secretary who was asked by letter no. 669 dated 30.7.2011 to get the notice served on all the employed teachers which would also include the petitioner but, then, that letter of the Tribunal dated 30.7.2011 for whatsoever reason was not received by the Member Secretary. The subsequent correspondence of the Tribunal with the District Education Officer vide letter no. 682 dated 12.8.2011 would go to show that it was the District Education Officer, Jamui who was asked to appear before the Tribunal and not the petitioner and other appointed teachers. The Tribunal virtually had surrendered its authority in the matter of service of notice on the Member Secretary and/or District Education Officer, Jamui. 682 dated 12.8.2011 would go to show that it was the District Education Officer, Jamui who was asked to appear before the Tribunal and not the petitioner and other appointed teachers. The Tribunal virtually had surrendered its authority in the matter of service of notice on the Member Secretary and/or District Education Officer, Jamui. In that view of the matter, this Court will have no difficulty in holding that the personal service of notice of the application of the respondent no.9 was not affected. 9. There would be no difficulty in again holding that the two consequential orders as contained Annexure 2 & 3 were passed by the Deputy Development Commissioner, Jamui and District Programme Officer (Establishment) without notice to the petitioner inasmuch as in Paragraph no.8 of the counter affidavit it has been stated as follows:- “8. That statement made in para 12 to 18 of the writ petition it is stated that the one the application of respondent no.9 Parshuttam Kumar Pandey the District Teacher Appointment Appellate Authority, Jamui issued notice to petitioner but it is evident from order sheet itself it appears that petitioner did not choose to enter his appearance and file reply before the appellate authority and therefore the appellate authority after looking into the materials available on record has passed the impugned order which is binding on the departmental authority. However, it is submitted that he order issued by DDC, Jamui contained in memo no. 667 dated 03.04.12 and the order passed by DPO, Jamui contained in memo no. 595 dated 13-04-2012 have been issued in compliance of the order of the District Appellate Authority for which any notice or show cause was not required to be given. It is further stated that the order of the District appellate authority is detailed and a speaking order.” 10. As noted above, there is no proof of service of notice on the petitioner by the Tribunal and the order of the Tribunal as contained in Annexure-1, was definitely passed without ensuring service of notice on the petitioner. 11. It is further stated that the order of the District appellate authority is detailed and a speaking order.” 10. As noted above, there is no proof of service of notice on the petitioner by the Tribunal and the order of the Tribunal as contained in Annexure-1, was definitely passed without ensuring service of notice on the petitioner. 11. As with regard to the two consequential orders as contained in Annexure 2 & 3 passed by the Deputy Development Commissioner, Jamui and District Programme Officer (Establishment), it stands admitted from the aforementioned paragraph no.8 of the counter affidavit of the respondent no.5 that they had proceeded on the basis that since notices were also served on the petitioner by the Tribunal, there was no need to issue show-cause notice to them before passing the impugned orders as contained in Annexure 2 & 3. 12. The plea of the private respondent no. 9 that such notices were issued by the Deputy Development Commissioner, Jamui in the month of February, 2013 leading to the order dated 22.06.2013 again cannot be a proof of service of notice on the petitioner in relation to the three impugned orders. The following portion of the affidavit of the private respondent no.9 in fact would go to show that he is talking about same notice which led to passing of the order dated 22.6.2013:- “3. That it is stated that in the light of the order passed by the District teachers appointment appellate authority and the order passed by the Hon’ble High Court, Patna, the District Education officer Jamui by his memo no. 1553 dated 22.06.2013 examined the entire matter after given the opportunity to all concerned and passed a order with regard to illegality and irregularity of the said appointment.” 13. From the aforesaid stand of the respondent no.9, it becomes clear that after cancellation of appointment of the petitioner, the issue relating to filling up of the vacant post of the Teachers arose, there was some sort of proceeding before the Deputy Development Commissioner/District Education Officer but then that proceeding or its notice cannot be a substitute for defending the impugned orders contained in Annexure 1, 2 & 3 which were passed way back on 8.9.2011, 3.4.2012 and 13.4.2012 respectively. 14. 14. This Court, therefore, could have no difficulty in quashing the order passed by the Deputy Development Commissioner, Jamui dated 3.4.2012 as contained in Annexure-2 and the order passed by the District Programme Officer (Establishment), Jamui dated 13.4.2012 so far it relates to the petitioner but it will refuse to so inasmuch as the same impugned order of Tribunal having been made subject matter of CWJC No. 10609 of 2012 (Nikhil Vs. The State of Bihar & Ors.) was not interfered with by giving the following reason:- “Having considered the submissions made on behalf of the parties and having perused the order of the Tribunal, the Court holds that the observations of the Tribunal are more in the nature of an adverse inference in absence of necessary assistance being rendered to it by the official respondents by filing proper replies and producing records. Drawing an adverse inference, it has prima facie opined that the appointments do appear to be in consonance with the law. No orders for termination of any have been passed. Directions have been given to the Department to scrutinize the appointments and take action in accordance with the merit list and law. Any apprehension of the petitioner that his service has been terminated is misconceived. His continuance in service shall depend upon the result of the enquiry that the respondents are required to hold by order of the Tribunal. On the suggestion of the State, the order of the Tribunal is directed to be complied with within a maximum period of six months from the date of receipt and/or production of a copy of this order.” 15. Thus, as this Court had found the order of the Tribunal only to the extent of a direction for initiating enquiry to scrutinize the appointment and take action in accordance with the merit list, there would be no need to interfere with the order of the Tribunal specially when this Court has found the two consequential orders contained in Annexure 2 & 3 to be violation of the principle of natural justice. The petitioner who had also been appointed on the post of Biology Teacher was, therefore, required to be given a notice by the Deputy Development Commissioner before holding that all appointment including the appointment of the petitioner made on or after 8.1.2011 was bad. The petitioner who had also been appointed on the post of Biology Teacher was, therefore, required to be given a notice by the Deputy Development Commissioner before holding that all appointment including the appointment of the petitioner made on or after 8.1.2011 was bad. For the same reason, the consequential order passed by the District Programme Officer (Establishment) Jamui dated 13.4.2012 cannot be sustained. 16. This Court would, however, find that in the order dated 25.6.2012 in the case of Nikhil (supra), there was a direction to the official respondents to comply the order of the Tribunal and, therefore, if the compliance earlier was made in violation of the principle of natural justice by removing the petitioner without any show-cause notice and/or opportunity of hearing, this Court, in order to maintain parity, would also direct the Deputy Development Commissioner, Jamui to place the whole matter before the Committee and issue a show-cause notice to the petitioner and take further decision as with regard to the appointment on the post of Biology Teacher claimed by the respondent no.9 strictly in accordance with law. 17. In order to facilitate the early disposal of such matter by the Deputy Development Commissioner, Jamui, this Court would direct that both the petitioner and the respondent no.9 to appear before the Deputy Development Commissioner, Jamui on 12.08.2013 whereafter the Deputy Development Commissioner shall fix another date after affording opportunity of hearing to the petitioner and the respondent no.9. On that day, the petitioner must file his show-cause reply with regard to the justification of his appointment on the post of Biology Teacher despite his being untrained and having lesser marks than the respondent no.9 who is not only trained but has a higher marks in graduation as against the petitioner. 18. It will be also open for the petitioner to place any material to show that the post of Teacher, in question, was to be filled up only from the candidate of category of Most Backward Category and that as per roaster to be followed for the post in question, the appointment of the respondent no.9, a candidate of General Category was impermissible. 19. 19. The Deputy Development Commissioner, thereafter, having afforded an opportunity of hearing to both the petitioner and the respondent no.9 shall take a decision in accordance with law and dispose of the inter-se claim of the petitioner vis-à-vis respondent no.9 by a reasoned order within a period of three months i.e. on or before 15th November, 2013. 20. As the petitioner is continuing on the basis of the interim order passed by this Court on 27.6.2012, he will be allowed to continue till the final order is passed by the Deputy Development Commissioner, Jamui in the manner indicated above and the Deputy Development Commissioner shall get the matter decided by the fu;kstu bdkbZ without being in any way influenced by the letter no. 1553 dated 22.6.2013 of the District Education Officer, Jamui. 21. It is, however, made clear that if the petitioner does not appear before the Deputy Development Commissioner, Jamui on 12.8.2013 and/or does not file his show-cause reply defending his appointment before the Deputy Development Commissioner, Jamui, it will be open for him (Deputy Development Commissioner, Jamui) to pass final order ex-parte on the basis of the materials on record. 22. With the aforementioned observations and direction, this application is disposed of.