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2014 DIGILAW 7 (PAT)

Rajesh Kumar v. State Of Bihar

2014-01-02

KISHORE K.MANDAL

body2014
ORDER In this writ petition filed under Article 226 of the Constitution of India the petitioner has prayed for setting aside the order dated 24.2.10 passed by the District Teachers’ Appointment Appellate Authority, Darbhanga (for short “Appellate Authority”) in case no. 505 of 2009 (Suresh Das Vs. Block Development Officer, Bahardurpur). In the second writ petition the petitioner has prayed for issuance of appropriate order/direction in the nature of mandamus commanding the respondents to act as per the order passed by the Appellate Authority in case no. 505 of 2009. Petitioner of CWJC No. 5981 of 2010 is respondent no.10 in CWJC No. 5425 of 2010. Both the matters have, therefore, been heard together with the consent of the parties. Order present will govern them. 2. Certain facts drawn from CWJC No. 5425 of 2010, which are not in dispute, may be noticed at the onset. 3. The process of selection and appointment of Panchayat Teacher (for short “PT”) was taken up in Pirri Gram Panchayat within Bahadurpur Block in the District of Darbhanga. The petitioners of both the cases being untrained applied for their appointment. The percentage of marks obtained by a candidate in the Intermediate of Arts/Science Examination is/was the sole criteria for selection of such PTs. The writ petitioner of CWJC No 5425 of 2010 had secured 52.11% at the said examination whereas the respondent no.10 (petitioner of CWJC No. 5981 of 2010) had secured 56.33%. Both the petitioners belonged to Extremely Backward Class (Male) (for short “EBC”) category. Altogether 16 posts of PTs was advertised for appointment in the said Gram Panchayat for which selection process was initiated in the year 2006-07 against which approximately 1333 applications were filed and received. The petitioner filed his application along with the requisite certificates/mark sheets. Similarly the respondent no.10 had also submitted application annexing therewith the requisite certificates/documents. The respondent-District Magistrate by communication dated 3rd October, 2006 (Annexure-4) provided the roster points to the said Gram Panchayat. On perusal whereof, it appears that two out of total 16 posts was/were earmarked for appointment in EBC category. According to the writ petitioner counseling of the applicant(s)/candidate(s) was held on 10-10-2006 and 11-10-2006. The writ petitioner namely Rajesh Kumar had appeared in the said counseling whereas respondent no.10 did not appear. A provisional merit list was prepared and published on 8.11.2006 (Annexure-5) wherein the petitioner Rajesh Kumar figured at Sl. According to the writ petitioner counseling of the applicant(s)/candidate(s) was held on 10-10-2006 and 11-10-2006. The writ petitioner namely Rajesh Kumar had appeared in the said counseling whereas respondent no.10 did not appear. A provisional merit list was prepared and published on 8.11.2006 (Annexure-5) wherein the petitioner Rajesh Kumar figured at Sl. No. 36. The respondent no. 10 did not figure therein. Several complaints were lodged by the applicants/candidates against such selection and preparation of the provisional merit list. The Panchayat Secretary of the concerned Gram Panchayat also approached the respondents alleging therein that certain names were deceitfully inserted as the candidates who had filed applications within the time prescribed therefor. The matter was referred to the respondent Block Development Officer, Bahadurpur who was then the competent authority to consider such allegations/grievances and appeal case no. 1 of 2007-2008 was registered. The Block Development Officer having examined the matter by an order dated 9.1.2008 (Annexure-11) directed the Panchayat Secretary and Mukhiya of the concerned Gram Panchayat to proceed afresh from the stage of preparation of the provisional panel/merit list and complete the process of selection as per the Rules under the supervision of the authorities. While doing so, the Block Development Officer also found that counseling said to have been earlier held on 10.10.2006 and 11.10.2006 was under serious doubt. It was, therefore, directed in the said order that fresh counseling of the candidates be done under the strict supervision of the members of the selection committee as well as Block Education Extension Officer on 14.1.2008 and 16.1.2008. The writ petition asserts that in the light of the said order of the Block Development Officer a final merit list of ten candidates was prepared on 12.1.2008 (Annexure-14) and only six seats remained vacant/unfilled for which no merit list was prepared. Since the respondent no.10 had not participated in the counseling earlier held on 10.10.2006 and 11.10.2006 his name did not figure in the provisional merit list dated 8.11.2006 and in the final select list dated 12.1.2008 (Anenxure-14). Accordingly, the appointment letters were issued to those who figured in the final select list on 12.1.2008 (Annexure-14) including the writ petitioner. The petitioner claims to have joined the post on 22.1.2008. The respondent no. 10 (Suresh Das) appeared for counseling on 14.1.2008/16.1.2008. Since the seat earmarked for the EBC category had been filled up he was not offered appointment. Accordingly, the appointment letters were issued to those who figured in the final select list on 12.1.2008 (Annexure-14) including the writ petitioner. The petitioner claims to have joined the post on 22.1.2008. The respondent no. 10 (Suresh Das) appeared for counseling on 14.1.2008/16.1.2008. Since the seat earmarked for the EBC category had been filled up he was not offered appointment. The respondent no.10 aggrieved by his non selection due to illegal/arbitrary exercise of power by the authorities filed a writ petition in this Court vide CWJC No. 14140/2008 which was withdrawn by order dated 10-4-2009 (Annexure-17) granting him liberty to approach the Appellate Authority which had already become functional. Accordingly, the respondent no.10 filed the aforesaid objection/appeal before the Appellate Authority which was considered and allowed by the order dated 24.2.2010 (Annexure-1) which has been impugned in the present writ petition. 4. Per contra, the case of the respondent no.10 is that he having obtained higher percentage of marks than the writ petitioner was also an applicant but he was by illegal/fraudulent means not permitted to participate in the counseling held on 10-10-2006 and 11-10-2006. Similarly, other candidates were also clandestinely not allowed to participate in the counseling although they were applicants and present. The respondents particularly the Panchayat Secretary and the Mukhiya adopted unfair means in order to favour the writ petitioner and others and after the order passed by the respondent-Block Development Officer a merit list of 39 untrained applicants was prepared on 12.1.2008 on the basis of fake counseling held on 12.1.2008. The respondent Block Development Officer by a communication dated 11.1.2008 had specifically directed for fresh counseling to be held in the light of his order dated 9.1.08 (Annexure-11) on 14.1.08 and 16.1.08. No date of counseling was ever fixed to be held on 12.1.08 which is the case of the writ petitioner. As per order of the Block Development Officer and the provisions contained in Rule 9 (vii) (Kha) and 9 (viii) of the Bihar Panchayat Elementary Teacher (Employment & Service Conditions) Rules 2006 (for short “Rule”) after preparation of the provisional merit list an objection was required to be invited to make the said merit list (Medha Suchi) final before proceeding further to fix a date for counseling. It was never done in the present case. It was never done in the present case. Counseling was, in fact, done in the light of the order of the respondent-Block Development Officer on 14.1.2008 and 16.1.2008 and the final select list after counseling was thereafter prepared, copy whereof has been annexed as Annexure-A to the counter affidavit of the private respondents. The counseling register showing presence of the candidates for such counseling has been enclosed as (Annexure I/1). Even after preparation of the final select list (Annexure-A) the appointments were not being made therefrom. The respondent no.10 filed application before the Block Development Officer (Annexure–F) on 29.2.08 which did not yield any response whereafter he moved the respondent- District Magistrate without any response. In this background the respondent no.10 filed a writ petition in this Court which was disposed of by order dated 10.4.09 (Annexure-17) permitting the petitioner to invoke the jurisdiction of the Tribunal and accordingly objection case no. 505 of 2009 was filed which came to be disposed of by the impugned order dated 24.2.2010 (Annexure-1) whereby the case of the respondent no.10 that in the light of the order of the Block Development Officer fresh counseling was held on 14.1.08 and 16.1.08 in which the applicant was found most suitable having secured highest percentage of marks in the Intermediate Examination level in the category to which he belonged was held substantiated entitling him to be appointed in place of the writ petitioner who was wrongly offered the appointment letter based on the alleged counseling held on 10.10.06 and 11.10.06 and the provisional select list which was said to have been prepared thereafter. It has been stated that the counseling of the candidates said to have been held on 10-10-2006 and 11-10-2006 was already negated by the respondent Block Development Officer, which is the basis of the claim of writ petitioner. 5. Heard Mr. Ram Suresh Rai learned senior counsel for the petitioner of CWJC No. 5425 of 2010, Mr. Rajendra Narayan, learned senior counsel for the respondent no.10 and the State. I have heard the parties in CWJC No. 5981 of 2010. The pleadings have been exchanged between the parties in CWJC No. 5425 of 2010. 6. Learned counsel for the petitioner submitted that an issue relating to the recruitment process undergone in the Gram Panchayat in question was raised before and considered by the respondent-Block Development Officer in case no.1 of 2007-2008. The pleadings have been exchanged between the parties in CWJC No. 5425 of 2010. 6. Learned counsel for the petitioner submitted that an issue relating to the recruitment process undergone in the Gram Panchayat in question was raised before and considered by the respondent-Block Development Officer in case no.1 of 2007-2008. The Block Development Officer having considered the said grievance by order dated 9.1.2008 (Annexure-11) directed for initiating fresh steps for appointment from the stage of preparation of provisional merit list (Annexure-5). The Appellate Authority was, therefore, required to proceed therefrom since the name of the respondent no.10 did not appear in the said list, he was rightly not offered appointment. The Appellate Authority completely erred in concluding that the respondent no.10 was legally entitled to be appointed in place of the writ petitioner on the basis of subsequent counseling. It has next been submitted that once a grievance relating to the process of selection was raised, considered and disposed of by the Block Development Officer, no appeal under Rule 18 of the Bihar Panchayat Elementary Teacher (Employment and Service Conditions) Rules 2006 (for short “Rules”) could have been filed by the respondent no.10 before the Appellate Authority. This aspect of the matter has been completely overlooked by the Appellate Authority. 7. Mr. Rajendra Narayan conversely submitted that there is no dispute that the respondent no.10 was an applicant and had secured higher percentage of marks than the writ petitioner. Both were applicants against one and the same category. In all eventuality respondent no.10 should have been appointed. By deceitful/unfair means adopted by the respondents in order to favour the writ petitioner, he was prevented from participating in the counseling held on 10-10-2006 and 11-10-2006. The Block Development Officer in his order dated 09.01.2008 found that the case of the writ petitioner that counseling was held on 10-10-2006 and 11-10-2006 was not held substantiated. Having held so, the Block Development Officer directed for taking fresh steps for appointment for which two dates of counseling was fixed. The petitioner appeared on 16.1.2008 and having been found suitable was selected and the final merit list was prepared accordingly. The respondents were thereafter not taking further steps in the matter which prompted the respondent no.10 to petition before the authority. The petitioner appeared on 16.1.2008 and having been found suitable was selected and the final merit list was prepared accordingly. The respondents were thereafter not taking further steps in the matter which prompted the respondent no.10 to petition before the authority. Having failed to receive any response, he moved this Court in writ jurisdiction which was permitted to be withdrawn enabling him to file appeal before the Appellate Authority. The order passed by the Block Development Officer was, not under challenge before the Appellate Authority. If the official respondents were not acting in accordance with the Rules prejudicing the case of the applicant then a grievance in terms of the provisions of the Rules can always be raised before the Appellate Authority whose decision is final. The jurisdiction of the Appellate Authority in considering the grievance of the respondent no.10 on filing appeal, therefore, cannot be faulted. He has relied in this regard on a Division Bench judgment of this Court in the case of (Kumari Gayatri Devi @ Gayatri Devi & Ors. vs. The State of Bihar & Ors.) reported in 2013 (4) PLJR 341 . In fact, the grievance of the respondent no.10 before the Appellate Authority is/was that the official respondents were not acting as per order passed by the Block Development Officer. After completing the process of counseling a final list was drawn by the respondents (Annexure A to the counter affidavit of respondent No.10) but no further steps was being taken by the respondents thereafter which punctuated the respondent no.10 to approach the Appellate Authority in the light of the observations/liberty granted to him by this Court on his writ petition. Referring to Annexure-E of the counter affidavit, it has been submitted that the name of the writ petitioner apparently appears to have been inserted in the counseling register on the date claimed by the writ petitioner. 8. A counter affidavit has been filed on behalf of the respondent nos. 2, 3, 5 and 8 in which a similar stand has been taken that the respondents were directed to appoint the candidates figuring in the Oupbandhik Megha Suchi dated 8.11.2006. The respondent no.10 did not figure therein since he had not participated in the counseling on 10-10-2006 and 11-10-2006. 2, 3, 5 and 8 in which a similar stand has been taken that the respondents were directed to appoint the candidates figuring in the Oupbandhik Megha Suchi dated 8.11.2006. The respondent no.10 did not figure therein since he had not participated in the counseling on 10-10-2006 and 11-10-2006. The writ petitioner, therefore, was entitled to be appointed against the EBC category and as such even after preparation of the final list as claimed by the respondent no.10, no appointment letter was issued to him. 9. The contention of the petitioner that no appeal could have been filed by the respondent no.10 before the Appellate Authority appears to be misplaced. The order passed by the Block Development Officer was not under challenge before the Appellate Authority by the respondent no.10. The matter carried before the Appellate Authority, therefore, cannot be dubbed as the second appeal filed against the order of the Block Development Officer. Any grievance relating to the selection/appointment of Panchayat Teacher under the Rules can be raised before the Appellate Authority after its constitution in terms of Rule 18 (after its amendment). Grievances can arise at different stages. If any applicant is aggrieved by any action or inaction of the respondents in completing the selection process in accordance with the Rules it can be raised before the Appellate Authority whose decision is final. It, therefore, cannot be said as a general proposition that if an issue/grievance has already been raised before and decided by the then appropriate/competent authority then no further grievance of any nature can be raised before the Appellate Authority after its constitution in terms of Rule 18 of the Rules. Similar contention was raised and negated by a Division Bench of this Court in Kumari Gayatri Devi (supra). Para 7 of the said report is reproduced hereinbelow. “7. The last submission that the Tribunal cannot look into an appeal against appointments made prior to formation of the Tribunal is required to be noticed only for rejection. There is no such limitation in the Rules that no appeal can be preferred before the Tribunal for a cause of action which arose earlier. Once the Tribunal replaced the earlier appellate authority, the Block Development Officer, it will have jurisdiction to entertain appeals which were could have been entertained by the Block Development Officer.” 10. There is no such limitation in the Rules that no appeal can be preferred before the Tribunal for a cause of action which arose earlier. Once the Tribunal replaced the earlier appellate authority, the Block Development Officer, it will have jurisdiction to entertain appeals which were could have been entertained by the Block Development Officer.” 10. From bare perusal of the materials on record and the order passed by the Appellate Authority it is obvious that the legality/sustainability of the order passed by the Block Development Officer on 9.1.2008 (Annexure-11) was not under challenge before the Appellate Authority. On the contrary, a grievance was raised that the official respondents were not carrying out the directions of the Block Development Officer. This Court is, therefore, unable to uphold the said contention of the petitioner. 11. Much stress has been laid by the petitioner on the observation made by the Block Development Officer in his order dated 9.1.2008 in order to submit that those who figured in the Oupbandhik Megha Suchi were only entitled to be considered for appointment. On perusal of the Rules, it appears that the selection committee of the Panchayat is required to prepare a provisional merit list (Megha suchi) and thereafter invite objections. Once the objections, if any, filed by the candidate are settled/decided then a final merit list is required to be published whereafter the date of counseling is to be notified. Those, who appeared in the counseling, can only be considered for appointment subject to his/her suitability and verification of documents/certificates. The Block Development Officer himself in his order dated 09-01-2008 (Annexure-11) seriously doubted the case of the writ petitioner or the official respondents that counseling was earlier notified and held on 10-10-2006 and 11-10-2006. In other words, the case of the writ petitioner that counseling was held on 10-10-2006 and 11-10-2006 was not upheld. Having found so the Block Development Officer directed for proceeding afresh from the stage of preparation of provisional merit list. According to the respondent no.10, the date(s) of fresh counseling as fixed in the order of the Block Development Officer was held on two subsequent dates wherein the respondent no.10 along with others had appeared. Relevant document in this regard have been placed on record. The writ petitioner, for the reasons best known to him, did not appear thereat. According to the respondent no.10, the date(s) of fresh counseling as fixed in the order of the Block Development Officer was held on two subsequent dates wherein the respondent no.10 along with others had appeared. Relevant document in this regard have been placed on record. The writ petitioner, for the reasons best known to him, did not appear thereat. Having completed the process of counseling and verification, the respondents had prepared a final select list. The Appellate Authority, on perusal of the records and after considering the submissions of the parties in its impugned order (Annexure-1), found and held that the counseling said to have been held on 12.1.2008 was not acceptable as no date for counseling was fixed on 12.1.2008. In fact, it was a forged and fabricated document. The applicants including the respondent no.10 had appeared for their counseling on the two dates fixed by the Block Development Officer i.e. on 14.1.2008 and 16.1.2008 which was duly publicized in which the writ petitioner did not choose to appear. No reason therefor was explained to the Appellate Authority. The Appellate Authority has further held that no objection was filed by the writ petitioner against such counseling and preparation of final select list. Even as per the provisions of the Rules governing the process of selection, fresh counseling was required to be gone into after finalization of Oupbandhik Megha Suchi. The Appellate Authority found that the name of the writ petitioner was fraudulently entered in the counseling register of 11.10.2006. In face of the aforesaid finding of the Appellate Authority, this Court is unable to accept the contention of the petitioner that he had appeared on the said date for counseling. At the cost of repetition, this Court would notice here that Block Development Officer in his order dated 9.1.2008 (Annexure-11) had himself disapproved such counseling said to have been held on 10-10-2006 and 11-10-2006. The Appellate Authority observed as under in the impugned order:- “Atyant pichari jati me jab ek hi pad baki tha aur Rajesh Kumar ka naam niyojan hetu 08.11.06 ko megha suchi me naam tha to phir kyon rikti mante hue Suresh Das ko 16.01.08 me counseling karaya gaya es prasna ka jabab na Rajesh Kumar Diye na Panchayat Sachiv diye. The Appellate Authority observed as under in the impugned order:- “Atyant pichari jati me jab ek hi pad baki tha aur Rajesh Kumar ka naam niyojan hetu 08.11.06 ko megha suchi me naam tha to phir kyon rikti mante hue Suresh Das ko 16.01.08 me counseling karaya gaya es prasna ka jabab na Rajesh Kumar Diye na Panchayat Sachiv diye. Ek hi niyojan se sambandhit rahane per kam ank wale ko pehle niyojit hona aur adhik ank wale ko niyojit nahi hona jabki counseling me bhag liye hai. Nayaysangat pratit nahi hota hai. 12.01.08 ko jo aprashikchit abhyarthiyon ka megha suchi bana usi ke adhar per atyant pichara warg me Suresh Das se kam ank rahne per bhi Rajesh Kumar ka niyojan kar diya gaya. 16.01.08 ko jo Suresh Das ko counseling karwaya gaya. Suresh Das ko adhik ank rahane per bhi yeh kahte hue ki atyant pichari jati ka Rajesh Kumar ke duara ped bher diya gaya hai, Suresh Das ka niyojan nahi kiya gaya hai.” 12. Having regard to the aforesaid findings of the Appellate Authority and in the light of the discussions made hereinabove, this Court is not persuaded to interfere with the order passed by the Appellate Authority as contained in Anenxure-1 which has been impugned in the present writ petition. Resultantly, CWJC No. 5425 of 2010 is dismissed. CWJC No. 5981 of 2010 filed by the respondent no. 10 of CWJC No. 5425 of 2010 seeking direction upon the respondents to act as per the order of the Appellate Authority is allowed. Let the concerned respondent(s) proceed as per order passed by the Appellate Authority. 13. In the facts and circumstances of the case, there shall be no order as to costs.