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2014 DIGILAW 63 (PAT)

Mukesh Kumar v. State of Bihar

2014-01-16

NAVIN SINHA, VIKASH JAIN

body2014
NAVIN SINHA, J.:–The present appeal arises from the order dated 13.3.2013 dismissing CWJC No. 792 of 2010. The learned Single Judge declined to interfere with the order of the District Teachers Appointment Tribunal, Saharsa dated 31.8.2009 terminating the appointment of the appellants on a challenge held out by Respondents 8 and 9. 2. Learned Counsel for the appellants submitted that the order of the Tribunal is exparte without notice to them. They have been deprived of the appointment without giving them an opportunity of defence making the order void an initio. If the candidates above the appellants did not appear for counseling despite notice there was no illegality in the appointment of the appellants. Similarly because appellant no. 2 may have been a relative of the Panchayat Secretary was not sufficient to invalidate his appointment if he was otherwise eligible. The selection was not made singularly by Panchayat Sachiv but by a Selection Committee. Notices had been sent to the candidates including the private respondents by speed post notwithstanding which they did not appear. It was next submitted that earlier the matter had been examined by the BDO who was statutory authority under Rule 18 of the Bihar Primary Panchayat Teachers (Appointment and Service Conditions) Rules, 2006. The BDO found the appointment of the appellants to be valid. This order was never challenged and attained finality. The creation of the Tribunal in August 2008 in lieu of BDO therefore did not warrant fresh examination of the appointment applying the principles of res- judicata. 3. Counsel for the State invited our attention to the order of the Tribunal and submitted that rampant illegalities had been committed during the appointment. The Panchayat Sachiv appointed his own relatives not once but twice. The Tribunal had adequately discussed that the so called proof in support of despatch of notice by postal certificate to the was not counter signed by the Postal Department and rightly disbelieved by the Tribunal. It was lastly submitted that appellants were noticed by the Tribunal through the Principal of the School where they were teaching. In support of the same the private respondents in their counter affidavit had enclosed the notice signed in acknowledgement by the two appellants at Annexures R4 and R4/1. No rejoinder to the same had been filed by the appellants before the Writ Court. 4. We have examined the order of the Tribunal again. In support of the same the private respondents in their counter affidavit had enclosed the notice signed in acknowledgement by the two appellants at Annexures R4 and R4/1. No rejoinder to the same had been filed by the appellants before the Writ Court. 4. We have examined the order of the Tribunal again. On the first occasion the Panchayat Sachiv appointed his own brother-in-law Shiv Shankar Kumar bypassing six candidates with higher marks by taking the plea that the candidates did not appear for counseling. Shiv Shankar Kumar subsequently resigned. The Panchayat Sachiv now appointed appellant no. 2, his own brother, bypassing 23 candidates. The Tribunal applying common sense and logic rightly held that it defeats prudent understanding why candidates who had applied for a post would en masse fail to appear if they had been validly noticed. Similarly appellant no. 2 came to be appointed ignoring six candidates with higher marks when the Tribunal opined for like reason that it was a personal favour doled out to appellant no. 1 with no explanation coming forth why would candidates en masse not appear after having applied if they had actually been noticed. 5. The appellants in their writ petition at para 26 supported by Annexures 9 and 10 stated that notices had been sent by speed post. Annexures are evidence that notice was sent under postal certificate disbelieved by the Tribunal lacking any sign in confirmation by the Postal Department. True it is that in para 53 of the memo of appeal the appellants have done a volte face contending that notices vide Annexures 9 and 10 were sent by UPC. The presumption that attaches to a registered letter of delivery does not apply to a communication by postal certificate. The fact that approximately 29 candidates with higher marks did not appear en masse raises serious doubts about despatch of notice and/or timely despatch of notice. The Appellants have not been able to rebut the same. 6. The counter affidavit filed by the private respondents 8 and 9 before the Writ Court containing Annexure R4 and R4/1 amply demonstrate that notices were served upon the appellants through the Principal duly acknowledged by the two appellants. The Appellants have not been able to rebut the same. 6. The counter affidavit filed by the private respondents 8 and 9 before the Writ Court containing Annexure R4 and R4/1 amply demonstrate that notices were served upon the appellants through the Principal duly acknowledged by the two appellants. If they chose voluntarily not to enter appearance before the Tribunal even after being made aware of the proceeding initiated against them it does not lie for them to allege violation of principles of natural justice. In (2004) 6 SCC 299 (N. K. Prasada Vs. Government of India) it was observed at para 24 as follows– 24. The principles of natural justice, it is well settled, cannot be put into a straitjacket formula. Its application will depend upon the facts and circumstances of each case. It is also well settled that if a party after having proper notice chose not to appear, he at a later stage cannot be permitted to say that he had not been given a fair opportunity of hearing……..” Similar view has been taken in (2013) 2 SCC 740 (SBI Vs. Narendra Kumar Pandey). 7. The facts of the present case are eloquent. The Panchayat Sachiv ignoring 23 candidates with higher marks first appointed his brother-in-law and when the brother-in-law resigned the Panchayat Sachiv again ignoring the candidates with higher marks appoints his own brother. It is not the case of the appellants that the Panchayat Sachiv did not participate in the deliberations of the Selection Committee. The law in this regard stands well settled in A. K. Kraipak Vs. Union of India (1969) 2 SCC 262 . The appellants contend denial of hearing by the Tribunal. Specific assertion has been made in para 29 of the writ petition that no notice to show cause or opportunity of hearing was provided. But no rejoinder was filed to the counter affidavit of the private respondents 8 and 9. The service of notice on the appellants is therefore an admitted fact. If we were to invoke the principles in (1995) 3 SCC 757 (Dhananjay Sharma Vs. State of Haryana) the appellants by filing a false affidavit in a judicial proceeding have committed a criminal contempt. 8. Quite apparently a wrong statement of fact well within the knowledge of the appellants was made by them deliberately with an intention to misuse judicial process to obtain advantage. State of Haryana) the appellants by filing a false affidavit in a judicial proceeding have committed a criminal contempt. 8. Quite apparently a wrong statement of fact well within the knowledge of the appellants was made by them deliberately with an intention to misuse judicial process to obtain advantage. In (2003) 1 SCC 390 (Mahender Pratap Vs. Krishan Pal) it has been observed that such acts done with an intention to mislead the court demand appropriate deterrent action like dismissal of their cases with costs, prosecution for perjury or initiation of contempt proceedings by the court lest the judicial process would continue to be polluted and misused by undeserving parties who have no real grievance or cause.– “Such false cases not only contribute to the workload of the court and kill its precious time but create hurdles in the ways of genuine litigants who sincerely need assistance of the court for obtaining justice.” 9. The observations of the Supreme Court in (2010) 2 SCC 114 (Dalip Singh Vs. State of U.P) are apposite as follows:– “2. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.” 10. We have no reason to interfere with the order under appeal. 11. We are satisfied that the present case calls for deterrent orders. We therefore direct that the State Government is at liberty to proceed against the Panchayat Sachiv in accordance with law in view of the findings of the Tribunal which have now attained finality. We are further satisfied to dismiss the appeal with a cost of Rs. 25,000/- each against both the appellants to be paid to the State Government and recoverable as a public demand. The appeal is dismissed.