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2022 DIGILAW 817 (PAT)

Indradeo Pandit v. State of Bihar

2022-09-23

SANJEEV PRAKASH SHARMA

body2022
SANJEEV PRAKASH SHARMA, J.:–The petitioner by way of this writ petition assails the order passed by the State Appellate Authority dated 17.05.2019, whereby the order passed by the District Teacher’s Employment Appellate Authority dated 28.12.2013 has been set aside and further order dated 17.10.2014 by which the petitioner’s appointment has been cancelled with the further direction that the respondent no.8 shall be restored to the post where he was working prior to the passing of the order of appointment of the petitioner. It has been further directed to the Panchayat Secretary to pay the arrears of honorarium and salary to the respondent. 2. Learned counsel for the petitioner has contended that the respondent no.8 who was the appellant before the State Appellate Authority, was found to be not included in the final merit list prepared on 08.11.2006. There were two inquiries conducted with regard to final merit list and the enquiry report of Area Education Officer dated 24.09.2008 and of the Block Education Officer dated 26.09.2008 have found that the final merit list dated 08.11.2006 did not have the name of the respondent no.8. It has also been found that the merit list dated 30.11.2006 was followed, wherein the name of the respondent no.8 has been shown. 3. The brief facts which requires to be mentioned for adjudicating the present petition are that in response to an advertisement inviting application for employment as Panchayat Teacher at gram Panchayat, Bela Simari on 27.08.2006 under the rules of 2006, the respondent no.8 claims to have applied as a handicapped candidate under E.B.C. quota. The petitioner too has applied. There were 11 vacancies, out of which 3 posts for unreserved female and two post were reserved for E.B.C. and one post was reserved for E.B.C. female, SC female and BC female candidate respectively. Out of 11 post two post were for Urdu teacher and remaining for general teachers. 4. As per the Panchayat Secretary, a merit list was prepared on 08.10.2006 wherein there were 166 candidates and it appears that there was another merit list prepared on 30.11.2006, wherein there were 171 candidates. It is stated by the Panchayat Secretary that the merit list dated 30.11.2006 was a forged one. 5. 4. As per the Panchayat Secretary, a merit list was prepared on 08.10.2006 wherein there were 166 candidates and it appears that there was another merit list prepared on 30.11.2006, wherein there were 171 candidates. It is stated by the Panchayat Secretary that the merit list dated 30.11.2006 was a forged one. 5. Respondent no.8 preferred an appeal before the District Teachers Employment Authority stating therein that he was selected and appointed in the first phase of teachers employment on 04.12.2006 as a Panchayat Teacher and was also paid honorarium from that day. However, from July, 2008 his honorarium was stopped. He, therefore, preferred an appeal to the District Teachers Employment Authority, Khagaria to direct them to make payment of his honorarium. 6. Panchayat Secretary appeared and did not file his reply to the allegations and stated that he does not possess the record of the recruitment before the appellate authority. However, it has been recorded by the District Appellate Authority that the Panchayat Secretary orally submitted the then Panchayat Secretary had made appointment of the respondent no.8 by creating false and forged merit list. On a complain received of some persons, enquiry was conducted and appointment of the respondent no.8 was found to be illegal as his name was missing in the original merit list prepared and signed on 08.11.2006. The District Appellate Authority found that there were two merit list prepared on 08.11.2006 and 30.11.2006 and on the basis of merit list dated 30.11.2006 the respondent joined on the post. If found the list dated 30.11.2006 to be doubtful and that it was brought into existence to appoint the respondent no.8. It therefore, directed to fill up the vacancy as per roster from male, female candidate of E.B.C. 7. Respondent no.8 preferred an appeal before the State Appellate Authority who has taken a view that the order of dispensed with the services of the respondent no.8 dated 20.12.2013 was not justified. It has been further observed that the respondent no.8 had higher academic qualification than the petitioner. It also observed that the respondent no.8 was selected under the Orthopedic Disabled Category on 30.11.2006. Respondent no.8 joined the post and started receiving honorarium. He, therefore, could not have been removed. . It has been further observed that the respondent no.8 had higher academic qualification than the petitioner. It also observed that the respondent no.8 was selected under the Orthopedic Disabled Category on 30.11.2006. Respondent no.8 joined the post and started receiving honorarium. He, therefore, could not have been removed. . The State Appellate Authority has therefore allowed appeal in favour of the respondent no.8, with direction to remove the petitioner, who was subsequently appointed after the removal of the respondent no.8. 8. Learned counsel for the respondent no.8 submits that the order passed by the State Appellate Authority does not warrant any interference. As his name could not find place in the merit list dated 08.11.2006, he filed objections on 10.11.2006. whereafter, the provisional merit list dated 08.11.2006 was rectified and a final merit list was prepared on 30.11.2006 , wherein the name of the respondent was added and he was, therefore, offered appointment. Learned counsel for the petitioner submits that in another appeal preferred by Neeraj Kumar, the Panchayat Secretary admitted that the list was prepared on 30.11.2006, which was subsequently approved. It is, therefore, contended by the respondent no.8 that as the name of the petitioner figures in the final merit list prepared on 30.11.2006 and he is much more meritorious than the petitioner, the State Appellate Authority has rightly passed the order in his favour. 9. In support thereof, the respondent no.8 also has pointed out that as per Rule 9 of sub-rule (viii) of the Rules of 2006, the procedure was laid down for selection which means that a tentative merit list shall be published and objections shall be received and after dealing with the objections a final panel shall be prepared. In the circumstances, therefore, the appointment of the respondent no.8 after correction of the merit list cannot be said to be unjustified. It is stated that he has been working satisfactorily but his honorarium has been stopped since July, 2008. The appointment given to the petitioner was also unjustified. 10. On the other hand, the counsel for the petitioner submits that he was selected after the appointment of the respondent no.8 was cancelled in terms of the fact that the merit list prepared on 30.11.2006 was found to be forged. He was appointed on 17.10.2014 and was performing his duty. The appointment given to the petitioner was also unjustified. 10. On the other hand, the counsel for the petitioner submits that he was selected after the appointment of the respondent no.8 was cancelled in terms of the fact that the merit list prepared on 30.11.2006 was found to be forged. He was appointed on 17.10.2014 and was performing his duty. The respondent no.8 who preferred an appeal before the State Appellate Authority impleaded him as a party at the appellate stage. Learned counsel has stressed that the counselling was conducted, where after a list dated 08.11.2006 was prepared, which does not show the name of the respondent no.8. Keeping in view the enquiry conducted by the Block Education Officer, it is apparent that merit list dated 30.11.2006 is not a list prepared in terms of the Rule 9 (viii) and the appointment offered to the respondent no.8 was rightly set aside. He submits that the State Appellate Authority has erred in presuming the list of 30.11.2006 to be correct in teeth of the enquiry conducted by the Block Education Officer dated 24.09.2008. 11. I have considered the submissions. 12. I find that an enquiry has been conducted with regard to the merit list dated 30.11.2006, which has been found to be forged. Such a report cannot be overturned by the State Appellate Authority sitting in the appellate jurisdiction. The finding of approving the merit list dated 30.11.2006, is therefore, found to be vitiated in law. No proof has been produced or brought before the State Appellate Authority and the jurisdiction of the appellate court could not be exercised to set aside the report of an enquiry conducted by the Regional Education Officer dated 24.09.2008. The provisions of rule 9 (viii) cannot be said to have been followed for the purpose of preparing the merit list dated 30.11.2006. This Court also finds that the State Appellate Authority has proceeded to hold that the counter affidavit of the Panchayat Secretary, Bela Simari cannot be accepted as the same has been filed by some advocate, who appears for the respondent namely the petitioner. 13. In the opinion of this court, the counter affidavit of the Panchayat Secretary has to be read and merely because the same has been filed by some lawyer as that the petitioner, the facts contained in the counter affidavit cannot be ignored. 14. 13. In the opinion of this court, the counter affidavit of the Panchayat Secretary has to be read and merely because the same has been filed by some lawyer as that the petitioner, the facts contained in the counter affidavit cannot be ignored. 14. In view thereof, this court finds that the order passed by the State Appellate Authority to be perverse to the said extent. The petitioner has been selected subsequently and his appointment therefore could not have been set aside. The case of the respondent no.8 is found to be based on a forged select list and the order of the District Appellate Authority therefore rightly set aside his appointment. 15. In view of above, the order of the State Appellate Authority dated 17.05.2019 is set aside. The appointment of petitioner is restored. The petitioner shall be allowed to continue on the post with all consequential benefits.