RAJESH KUMAR Vs. SATE OF BIHAR

JUDGEMENT

(1.) 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 v. 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 C.W.J.C. No. 5981 of 2010 is respondent No. 10 in C.W.J.C. No. 5425 of 2010. Both the matters have, therefore, been heard together with the consent of the parties. Order present will govern them. Certain facts drawn from C.W.J.C. No. 5425 of 2010, which are not in dispute, may be noticed at the onset.

(2.) 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 C.W.J.C. No. 5425 of 2010 had secured 52.11% at the said examination whereas the respondent No. 10 (petitioner of C.W.J.C. No. 5981 of 2010) had secured 56.33%. Both the petitioners belonged to Extremely Backward Class (Male) (for short "E.B.C.") 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 alongwith 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 E.B.C. 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. 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 therefore. 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 (Annexure-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 E.B.C. 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 C.W.J.C. 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.

(3.) 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 Teachers (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. 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.