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Patna High Court - Orders

Vijay Kumar & Anr vs The State Of Bihar & Ors on 16 April, 2014

Bench: Chief Justice, Ashwani Kumar Singh

   IN THE HIGH COURT OF JUDICATURE AT PATNA
                 Letters Patent Appeal No.295 of 2012
                                   In
             Civil Writ Jurisdiction Case No. 1087 of 2011
======================================================
1. Vijay Kumar        son of Lakhan Sah, resident of Main Road, Simri
   Bakhtiyarpur, Post office and Police Station- Simri Bakhtiyarpur,
   District-Saharsa
2. Anil Kumar son of Chhedi Sah, resident of Kanu Tola, Simri
   Bakhtiyarpur, Post Office and Police Station-Simri Bakhtiyarpur,
   District-Saharsa
                                          .... ....    Respondents-Appellants
                                 Versus
1. The State of Bihar through the Secretary, Primary and Adult Education
   Department, Government of Bihar, Patna
2. The District Teachers' Appointment Appellate Tribunal, Saharsa
   through its Member
3. The Block Development Officer (BDO), Simri Bakhtiyarpur Block,
   Saharsa
4. The Mukhiya, Gram Panchayat, Bakhtiyarpur (South),            Post Office-
   Simri Bakhtiyarpur, District-Saharsa
5. The Panchayat Sachiv, Gram Panchayat, Bakhtiyarpur South,             Post
   Office and Police Station-Simri Bakhtiyarpur, District-Saharsa
                                     ..... ....           Respondents-Respondents
6. Subhash Kumar Bhagat Son of Shiv Brat Bhagat Resident of Village-
   Sharma Chowk, Simri Bakhtiyarpur, Post Office and Police Station-
   Simri Bakhtiyarpur, District-Saharsa
                                              .... .... Petitioner-Respondent
======================================================
Appearance :
For the Appellants      :
                       Mr. Sanjeev Kumar,
                       Mr. (Dr.) Rajesh Kumar Singh &
                       Mr. Chandra Mohan Jha, Advocates
For Respondent No. 6 : Mr. Siya Ram Shahi &
                       Mr. Syed M. Ashraf, Advocates
For the State        : Mr. Anurag Saurav, AC to SC 20
======================================================
       Patna High Court LPA No.295 of 2012 (4) dt.16-04-2014

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                   CORAM: HONOURABLE THE CHIEF JUSTICE
                               And
                               HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
                   ORAL ORDER
                   (Per: HONOURABLE THE CHIEF JUSTICE)


4   16-04-2014

This Appeal under clause 10 of the Letters Patent preferred by the respondent nos. 6 & 7 arises from the common judgment and order dated 20th December 2011 passed by the learned single Judge insofar as CWJC No. 1087 of 2011 has been allowed.

The matter at issue is the appointment of appellants as Panchayat Teachers under the Gram Panchayat Bakhtiyarpur (South), Simri, Bakhtiyarpur, Disrict-Saharsa as early as in 2007 under the Bihar Panchayat Elementary Teacher (Employment and Service Conditions) Rules, 2006 (hereinafter referred to as "the 2006 Rules").

Pursuant to a selection process commenced in 2006, the appellants were appointed as Panchayat Teachers in the Gram Panchayat Bakhtiyarpur in March 2007. In December 2007, the writ petitioner questioned their appointment before the Block Devlopment Officer. The Block Development Officer, under his order dated 28th January 2008, held the appointment of the appellants and two others to be illegal and cancelled the same. After a round of litigation before this Court in CWJC Nos. 10632 of 2008 & 9987 of 2009, the appellants approached the District Teachers Employment Appellate Authority, Saharsa (hereinafter referred to as "the Appellate Authority") in Appeal No. 693 of 2009. The Appellate Authority, after considering the materials on record, under its order dated 22nd December 2010, upheld the appointment of the Patna High Court LPA No.295 of 2012 (4) dt.16-04-2014 3/7 appellants. It was not in dispute that the writ petitioner had better qualification than the appellants, however it was found that the writ petitioner did not remain present for the purpose of counselling. The appointments were made in order of merit of the applicants who remained present for counselling. The said order of the Appellate Authority came to be challenged by the writ petitioner before this Court in above CWJC No. 1087 of 2011.

The learned single Judge has allowed the writ petition. The learned single Judge has proceeded on the premise that the notice sent under certificate of posting was not a valid notice. The Panchayat had failed to prove that the said notice had been received by the writ petitioner. The learned single Judge has observed, "the sending of notices Under Certificate of Posting cannot be considered as a valid mode of notice. Such letters sent Under Certificate of Posting are simply those sent by ordinary post and no presumption can be raised in favour of service of notices by the said mode. If at all a stand is taken that the notices were received it is for the respondents to show that the petitioners had actually received the notices. In the present matter nothing has been brought on the record to show that the notices send under Certificate of Posting had, in fact, been received by the petitioners. Normally in such circumstances a large number of candidates are involved and repeatedly allegations are being made regarding denial of notices to the candidates who are on the merit list in favour of favourites of the selecting authorities at the Panchayat level. In view of large scale complaints in the matter of such appointments this Patna High Court LPA No.295 of 2012 (4) dt.16-04-2014 4/7 Court cannot easily presume that notices sent under Certificate of Posting have been received. Any such presumption can only arise with respect to notices sent under Registered Post". In view of the aforesaid finding, the learned single Judge has set aside the impugned order of the Appellate Authority and has cancelled the appointment of the appellants. Therefore, this Appeal.

Learned advocate Mr. Sanjeev Kumar has appeared for the appellants. He has assailed the judgment of the learned single Judge. He has relied upon the finding of procedure properly followed by the Panchayat recorded by the Appellate Authority.

Appeal is contested by the writ petitioner, respondent no. 6. Learned advocate Mr. Siya Ram Shahi has appeared for the writ petitioner. Upon enquiry made by the Court, the writ petitioner has filed a supplementary affidavit in the present Appeal to bring on record the pleadings before the Block Development Officer. Mr. Shahi has strenuously urged that it was always the case of the writ petitioner that he was better qualified than the appellants. It has been well settled that the communication sent under the certificate of posting is not a valid service. The writ petitioner, therefore, was entitled to be appointed as Panchayat Teacher in preference to the appellants.

We have perused the pleadings filed by the writ petitioner before the Block Development Officer. The said complaint was made on 17th December 2007 to question the appointments made by the Panchayat as early as in March 2007. In the said complaint, it was not the case of the petitioner that he had not received the notice for counselling. In absence of the Patna High Court LPA No.295 of 2012 (4) dt.16-04-2014 5/7 specific plea raised by the petitioner, the Appellate Authority had no occasion to call upon the Panchayat to prove the service of notice to the writ petitioner. In our opinion, the learned single Judge has erred in holding that the notice sent under certificate of posting was not a valid notice and that the Panchayat had failed to prove the service of notice to the writ petitioner. The onus of proof has wrongly been caste upon the Panchayat. Mr. Shahi has also relied upon the two documents dated 28th November 2007 purportedly issued by the Gram Panchayat to confirm the appointment of the appellants. Evidently, the said documents have not been brought on record from the possession of the writ petitioner. The writ petitioner has failed to show how did he came into possession of the said documents, although orally it is submitted that the said copies were received on enquiry under the Right to Information Act, such statement is not made on oath. Mr. Shahi has also relied upon a copy of the letter purportedly written by some applicant to the Post Master, Saharsa. It is endorsed that no post under postal certificate was received in the said Post-office. Ex facie the said document is not admissible in evidence; nor does it have any probative value. Mr. Shahi concedes that no such enquiry was ever made by the writ petitioner; nor the concerned Post Master had been examined before the Appellate Authority.

In support of his submissions, Mr. Shahi has relied upon clauses (x) & (xi) of Rule 9 of the 2006 rules. He has strenuously urged that the said clauses do not specify that notice be sent under postal certificate. The notice sent under postal certificate, therefore, cannot be said to be a valid notice. He has relied upon the judgment of the Hon'ble Supreme Court in the Patna High Court LPA No.295 of 2012 (4) dt.16-04-2014 6/7 matter of Gadakh Yashwantrao Kankarrao Vs. E.V. alias Balasaheb Vikhe Patli & Ors. [(1994) 1 Supreme Court Cases 682]. In the aforesaid judgment, the matter at issue was the election of a Member of the Lok Sabha. Reliance was on certain communication which was purportedly sent under the postal certificate. The Hon'ble Court did not believe the communication at all. The Court observed, "the receipt of that letter by the addressee is denied and the likelihood of its dispatch by Gadakh is extremely doubtful since it was not sent by registered post and a certificate of posting being easy to obtain is not reliable." True, the certificate of posting is not a reliable mode of sending communication, but at the same time service of notice under certificate of posting is not illegal or invalid ipso facto. Unless there is a specific plea raised by the addressee that he had not received the notice, the question of proof of service does not arise.

It is hard to believe that the writ petitioner was not aware of the appointment of the appellants made in the month of March 2007; or that he was not aware that the counselling had commenced before the Panchayat. It is relevant to note here that under the 2006 Rules the residents of the same Panchayat alone are eligible for appointment as Panchayat Teacher. If the writ petitioner were the resident of the same Panchayat, it is not possible that he would not be aware that the counselling had commenced and that the appointments were made. In a small Panchayat area which may not have population of more than a couple of thousand of residents, appointment of Panchayat Teachers would be a noticeable event. The challenge to the appointment of the appellants is clearly an after thought.

We are of the opinion that the Appellate Authority has considered the issue before it in great details and after perusing the records has upheld the appointment of the appellants as Panchayat Teachers for cogent reasons. The said finding need not have been set aside only on the ground that the notice was sent by the Panchayat under certificate of posting. The writ petitioner had never denied the receipt of such notice except in the supplementary affidavit filed in the writ petition. The belated plea ought not to be entertained.

For the aforesaid reasons, this Appeal is allowed. The impugned judgment and order dated 20th December 2011 passed by the learned single Judge in CWJC No. 1087 of 2011 is set aside. The order dated 22nd December 2010 made by the District Teachers Employment Appellate Authority, Saharsa in Appeal No. 693 of 2009 is restored. CWJC No. 1087 of 2011 is dismissed.

(R.M. Doshit, CJ) (Ashwani Kumar Singh, J) A.F.R./Manish