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2022 DIGILAW 776 (PAT)

Doli Kumari v. State of Bihar

2022-09-02

SANJEEV PRAKASH SHARMA

body2022
SANJEEV PRAKASH SHARMA, J.:–Heard the learned counsel for the petitioners as well as the counsel for the State. 2. The petitioners have preferred this writ petition assailing the order of the District Appellate Authority, Samastipur, dated 5th February, 2015. In the ordinary course this Court would have directed the petitioners to challenge the said order, if aggrieved, before the State Appellate Authority, however, since this writ petition is pending since 2015, this Court heard the petitioners’ counsel on merits. 3. The learned counsel for the petitioners submits that the petitioners had been offered appointment after terminating the services of two teachers who were found to be having forged documents in support of their candidatures. It is stated that the Mukhiya conducted a counselling against three posts of 2006 vacancy and appointed the petitioners. However, when the salary of the petitioners was not released, they preferred appeal before the District Appellate Authority, Samastipur, praying for release of the salary. 4. At the said point the District Appellate Authority proceeded to examine the nature of the appointment of the petitioners and has given a finding that the appointment of the petitioners were illegal and wrongful. The selection in 2010 could not have been done against the vacancy of the year 2006 as there was no such direction issued by the District Programme Officer or the State to fill-up the vacancy of 2006 by holding a counselling. 5. Learned counsel submits that such findings could not have been arrived at by the District Appellate Authority and the authority has proceeded to go on a completely different aspect than the issue raised by the petitioners before it. Learned counsel submits that earlier the two respondents had preferred a writ petition before this Court against the action of the Panchayat in not making their payments, writ petition was dismissed at that stage. They were allowed to take up the matter before the concerned authority. It is further submitted that the petitioners had moved an intervention application and had pointed out that they had been given appointment against the post which has fallen vacant on account of the respondents termination. In the said event the High Court directed the respondents to implead the writ petitioners as party if they prefer appeal before the concerned appellate authority. However, no such appeal was preferred. 6. In the said event the High Court directed the respondents to implead the writ petitioners as party if they prefer appeal before the concerned appellate authority. However, no such appeal was preferred. 6. Per contra, learned counsel appearing for the State in its counter affidavit pointed out that as per the list prepared of the candidates who had appeared for counselling in the year 2006, the names of the petitioners could not find place. It is apparent that they never participated at that time when the selection was conducted against 2006 vacancy. It has also been submitted that the vacancy which had fallen vacant on account of the forged/false documents filed by the concerned respondents could not have been filled by the concerned Mukhiya at his own without due sanction from the State. In paragraph 8 of the counter affidavit that the appointments made by the petitioners on 30th December, 2010 are stated to be wrongful and the order of appointment issued in 2006 which is incorrect. In the year 2010, only one seat was allotted to the concerned authority for the post of Urdu Panchayat Teacher and therefore the authority could not have filled three posts by conducting a counselling in 2010. Even from the attendance register as of 2011 it is falsified that the petitioners were ever appointed as their names could not figure in the attendance register of 2011. It has also been submitted that the District Appellate Authority has reached to the conclusion and given a finding that the petitioners were closely related to the Mukhiya, who misused his power and appointed the petitioners after terminating the services of respondents 10 and 11. 7. I have considered the submissions noted above, perused the order passed by the District Appellate Authority and find that the District Appellate Authority has examiend the entire aspect thread bare and has concluded that the concerned Mukhiya, Chairman of the Panchayat employment unit, has used an application of 2006 and considered the candidatures of the petitioners for appointment by conducting wrongful counselling for three posts in 2010. He has also reached to the conclusion that an enquiry was conducted by the Block Education Officer on 08.01.2012 and there has been an embezzlement of Government funds by appointing persons illegally. Against 7 posts, 9 persons have been appointed wrongfully at the concerned Panchayat. 8. He has also reached to the conclusion that an enquiry was conducted by the Block Education Officer on 08.01.2012 and there has been an embezzlement of Government funds by appointing persons illegally. Against 7 posts, 9 persons have been appointed wrongfully at the concerned Panchayat. 8. This Court rejects the contention of the petitioners that the authority could not have examined the manner in which they were appointed. Once a judicial forum finds that the illegality has been committed it can quash such illegal action as illegality can not be allowed to perpetuate. 9. In the aforesaid background the contention of the counsel for the petitioners that the petitioners were appointed in a legal and proper method, is found to be without any basis. It is the case where on account of the vacancy created by terminating services of respondents 10 and 11, the petitioners were appointed illegally by the concerned Mukhiya mainly because they were his near relatives nor procedure has been followed, the posts were not sanctioned, no case for writ therefore is made out. 10. The writ petition is devoid of merit and is, accordingly, dismissed.