Patna High Court - Orders
Shahnawaz Alam & Ors vs The Principal Secretary Education ... on 4 April, 2014
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.22151 of 2012
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Md. Jawed Akhtar, S/O Late Md. Wakil Akhter R/O Village- Thikhan, P.S.-
Kathaiya, District- Muzaffarpur
.... .... Petitioner/s
Versus
1. The State Of Bihar through the Principal Secretary Education
Department, Govt. Of Bihar
2. The Principal Secretary Education Department, Government Of Bihar,
Patna
3. The Director, Primary Education, Govt. Of Bihar, Patna
4. The District Teacher Employment Appellate Authority Muzaffarpur
through its Member
5. The District Magistrate, Muzaffarpur
6. The Deputy Development Commissioner, Muzaffarpur
7. The District Education Officer, Muzaffarpur
8. The District Programme Officer (Establishment), Muzaffarpur
9. The Block Development Officer, Motipur, Muzaffarpur
10. The Block Education Officer, Motipur, Muzaffarpur
11. The Mukhiya, Panchayat Raj, Thikhan, Block- Motipur, Muzaffarpur
12. The Panchayat Secretary Panchayat Raj, Thikhan, Block- Motipur,
Muzaffarpur
13. The Head Master, Middle School, Thikhan, Motipur, Muzaffarpur
.... .... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No.22386 of 2012
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Mithlesh Kumar, Son Of Sri Raghunath Sah, Resident Of Village- Thikhan,
P.S.- Kathaiya, District- Muzaffarpur
.... .... Petitioner/s
Versus
1. The State Of Bihar through the Principal Secretary, Education
Department, Govt. Of Bihar
2. The Principal Secretary, Education Department, Government Of Bihar,
Patna
3. The Director Primary Education, Govt. Of Bihar, Patna
4. The District Teacher Employment Appellate Authority, Muzaffarpur
through its Member
5. The District Magistrate, Muzaffarpur
6. The Deputy Development Commissioner, Muzaffarpur
7. The District Education Officer, Muzaffarpur
8. The District Programme Officer (Establishment), Muzaffarpur
9. The Block Development Officer, Motipur, Muzaffarpur
10. The Block Education Officer, Motipur, Muzaffarpur
11. The Mukhiya, Panchayat Raj, Thikhan Block- Motipur, Muzaffarpur
12. The Panchayat Secretary, Panchayat Raj, Thikhan, Block- Motipur,
Muzaffarpur
Patna High Court CWJC No.22151 of 2012 (6) dt.04-04-2014
2
13. The Head Master, Middle School, Thikhan, Motipur, Muzaffarpur
14. Ram Kishore Sah S/O Asharfi Sah R/O Vill.- Thikaha Kothi, P.S.-
Kathaiyan, Block- Motipur, Dist.- Muzaffarpur
.... .... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No.22530 of 2012
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1. Shahnawaz Alam, Son Of Abdul Latif Resident Of Village- Thikhan,
P.S.- Kathaiya, District- Muzaffarpur
2. Md. Kalim Alam Son Of Md. Serajul Haque Resident Of Village-
Thikhan, P.S.- Kathaiya, District- Muzaffarpur
3. Md. Imtiyaz S/O Md. Tazzuddin Haque Resident Of Village- Thikhan,
P.S.- Kathaiya, District- Muzaffarpur
.... .... Petitioner/s
Versus
1. The Principal Secretary, Education Department, Government Of Bihar,
Patna
2. The Director Primary Education, Govt. Of Bihar, Patna
3. The District Teacher Employment Appellate Authority, Muzaffarpur
Through Its Member
4. The District Magistrate, Muzaffarpur
5. The Deputy Development Commissioner, Muzaffarpur
6. The District Education Officer, Muzaffarpur
7. The District Programme Officer (Establishment), Muzaffarpur
8. The Block Development Officer, Motipur, Muzaffarpur
9. The Block Education Officer, Motipur, Muzaffarpur
10. The Mukhiya, Panchayat Raj, Thikhan, Block- Motipur, Muzaffarpur
11. The Panchayat Secretary, Panchayat Raj, Thikhan, Block- Motipur,
Muzaffarpur
12. The Head Master, Middle School, Thikhan, Motipur, Muzaffarpur
13. The Head Master, Upgraded Middle School, Thikhan, Motipur,
Muzaffarpur
14. Sangeeta Kumari W/O Ratnesh Kumar Singh R/O Vill.- Aswari
Banjaria, P.S.- Kathaiya, Dist.- Muzaffarpur
15. Dinesh Kumar Thakur S/O Binda Thakur R/O Vill.- Thikhan Aswari,
P.S.- Kathaiya, Dist.- Muzaffarpur
.... .... Respondent/s
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Appearance :
(In CWJC No.22151 of 2012)
For the Petitioner/s : Mr. Krishna Kant Singh, Advocate.
For the State : Mr. Madhukar Mishra, AC to SC 31
(In CWJC No.22386 of 2012)
For the Petitioner/s : Mr. Krishna Kant Singh, Advocate.
For Respondent No.14 : Mr. Shankar Kishore Shahi, Advocate.
For the State : Mr. Nadiol Seraj, G.P.20
Mr. Shalini, AC to G.P.20
(In CWJC No.22530 of 2012)
Patna High Court CWJC No.22151 of 2012 (6) dt.04-04-2014
3
For the Petitioner/s : Mr. Krishna Kant Singh, Advocate.
For Respondent 15 & 16: Mr. Shankar Kishore Shahi, Advocate.
For the State : Mr. D. K. Singh, AC to G.P.5.
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL ORDER
6 04-04-2014Heard learned counsel for the petitioners and learned counsel for the State as well as other respondents.
2. In all the cases identical issues have been raised, they have been heard together and are being disposed of by the common order.
3. In all the three cases challenge has been made against the orders dated 9.11.2012 passed by the Member, District Teachers Employment Appellate Authority, Muzaffarpur in Case Nos. 7 of 2012, 8 of 2012 and 9 of 2012 filed by the petitioners by which their selection as Shiksha Mitra has been set aside.
4. It appears that Gram Panchayat Thikhan, Block Motipur, District Muzaffarpur has invited applications for appointment of 24 Shiksha Mitra, 12 seats were reserved for female candidates, 12 were reserved for male candidates, 6 seats were reserved for general category, two seats each were reserved for Scheduled Caste, Extremely Backward Caste and Backward Caste. Altogether 25 candidates applied for the posts, out of that 22 candidates were appointed. Md. Jawed Patna High Court CWJC No.22151 of 2012 (6) dt.04-04-2014 4 Akhtar is petitioner of C.W.J.C. No.22151 of 2012, Mithlesh Kumar is petitioner of C.W.J.C. No. 22386 of 2012 and Shahnawaz Alam, Md. Kalim Alam and Md. Imtiyaz are petitioners of C.W.J.C. No.22530.
5. Md. Jawed Akhtar was appointed under the Extremely Backward category, Mithlesh Kumar was appointed under backward category, Shahnawaz Alam was selected under the Extremely Backward category, Md. Kalim Alam and Md. Imtiyaz were appointed under unreserved category.
6. After the appointment it appears that the dispute arose about the selection of candidates and their appointment. In pursuance thereof the Block Education Extension Officer, Motipur vide letter no.266 dated 8.9.2006 to the counter affidavit filed in C.W.J.C. No.22151 of 2012 asked all the candidates who were appointed as Shiksha Mitra to produce their records and vide letter dated 2.11.2006 (Annexure-E) the Area Education Officer, Kanti Muzaffarpur wrote a letter to the Panchayat Secretary and Mukhiya pointing out, illegality in the appointment of Shiksha Mitra and asked them to remain present along with the records of proceeding of Sukh Subhidha Committee. Vide letter dated 11.6.2007(Annexure- F) the Area Education Officer, Kanti, Muzaffaprur arrived to Patna High Court CWJC No.22151 of 2012 (6) dt.04-04-2014 5 the conclusion that the appointment was tainted with illegality and purported application filed by Sangita Kumari did bear the forged signature and in her place, appointment of other person is completely illegal. The Mukhiya of that Panchayat vide letter dated 20.7.2007 (Annexure-G) again wrote a letter to the Commissioner, Tirhut Division informing the persons who were not competent were selected and specifically it has been pointed out that Binita Sahay, Sangita Kumari, Ram Kishore Sah, Dinesh Thakur, Dipmala and Shobha Kumari having better marks were left out and the persons having lower marks violating roster point were selected. It appears that the District Superintendent of Education, Muzaffarpur vide memo no. 4756 dated 28.8.2008 (Annexure-2) cancelled the appointment of the petitioners and directed for lodging FIR against Mukhiya and Panchayat Secretary.
7. Aggrieved by the said action petitioner, Md. Jawed Akhtar and others filed C.W.J.C. No. 15278 of 2008, Sangeeta Kumari and Dinesh Kumar Thakur filed C.W.J.C. No.16724 of 2008, Ram Kishore Sah filed C.W.J.C. No.16967 of 2008, Deep Mala and Sobha Kumari filed C.W.J.C. No.18670 of 2008 and Mithilesh Kumar filed C.W.J.C. No. 17610 of 2008 and this Court in the view of the Patna High Court CWJC No.22151 of 2012 (6) dt.04-04-2014 6 constitution of the Appellate Authority gave liberty to them to approach the Appellate Authority. Parties were noticed and they participated in the proceeding. The Appellate Authority has arrived to the conclusion that the appointments of the petitioners were vitiated on account of the fact that fraud was committed and in illegal manner the petitioners were accommodated and appointed as Shiksha Mitra whereas Sangita Kumari never submitted her resignation or any letter intending to show, she left the job of Shiksha Mitra. After perusal of the original record the Appellate Authority arrived to the conclusion that whole register is completely tampered and manipulated which is apparent on the face of record .
8. This Court has asked the State counsel to produce the original record relating to the appointment of Shiksha Mitra during the period 2005. The same has been produced before this Court as well as it was shown to learned counsel for the petitioners including photo copy of the same was served on him for their perusal.
9. From the record it appears that at many places whitener (eraser) has been used and over whitener either the name of third persons has been written or the name of some of the candidates have been erased (whitened) and in some places Patna High Court CWJC No.22151 of 2012 (6) dt.04-04-2014 7 even the proceeding appears to have been tempered which has not been denied by any party.
10. Learned counsel for the petitioners submits that Mithlesh Kumar was appointed in the backward category and he has better marks than Ram Kishore Sah. Sangita Kumari was adjusted against general vacancy and she did submit resignation and Md. Kalim Alam was adjusted. Shahnawaz Alam was also adjusted against Dinesh Thakur when he did not join. He further submits that no illegality has been committed in the appointment of Md. Kalim Alam as he has also 15% weitage marks that of Sangita Kumari. When she refused to join there is no wrong in accommodating Md. Kalim Alam. He has also submitted that the document (list of person appointed) that has been annexed by the private respondent shows the name of Mithlesh Kumar is standing. Even in the original record which has been produced before this Court shows the selection of Mithlesh Kumar. The original record does not show that Ram Kishore Sah was appointed. He has further submitted that Md. Jawed Akhtar and Md. Kalim Alam have been accommodated later on and as such there is no wrong in their adjustment. With regard to Md. Imtiyaz he has submitted that as vacancy left vacant he Patna High Court CWJC No.22151 of 2012 (6) dt.04-04-2014 8 was adjusted under general category. Learned counsel for the petitioner submits that the appointment was made in 2005 but all challenges have been made after a delay of about one year and as such their applications were required to be rejected in view of the judgment passed by this court in the case of Rajni Bara Vs. The State of Bihar, reported in 2011(4) PLJR 846 and he has also submitted that in view of the order of this Court in the case of Smt. Renu Kumari Pandey & ors. Vs. The State of Bihar & others, reported in 2011(4) PLJR 297 where it has been held that any dispute with regard to the appointment of Shiksha Mitra cannot be the subject matter of adjudication before the Appellate Authority. He has relied on another two judgments of learned Single Judge in the case of Saroj Kumar and others Vs. The State of Bihar and others, reported in 2013(2) PLJR 897 and in the case of Dayanand Yadav and another Vs. The State of Bihar and others, reported in 2013(4) PLJR 66. He further submits if appointment of all petitioners are set aside then all other appointments should come under scrutiny by the Appellate Authority and petitioners cannot be picked up and their services could be declared null and void. He further submits the document which has been annexed by the petitioners Patna High Court CWJC No.22151 of 2012 (6) dt.04-04-2014 9 showing the merit list of the candidates as Shiksha Mitra where the names of the petitioners are there and the same has been written in one hand writing.
11. Learned counsel for the State and private respondents have pointed out that if the original record is to be seen the name of Md. Jawed Akhtar, Shahnawaz Alam, Md. Kalim Alam and Md. Imtiyaz were not select list which will be apparent from the record either produced by the private respondent or by the State which is the original record. He has further submitted that Annexures B and C attached to the counter affidavit of C.W.J.C. No.22530 of 2012 list of selected candidates as Shiksha Mitra show that Ram Kishore Sah was selected in the Extremely Backward category (caste Teli). Sangita Kumari and Dinesh Thakur selected in general category and backward category and Md. Kalim Alam, Md. Jawed Akhtar, Shahnawas Alam, Mithilesh Kumar, Md. Imtiyaz were not selected as there is no remark of selected candidate against their names. He has also drawn the attention to Annexure-C of counter affidavit of C.W.J.C.No.22530 of 2012 shows the name of selected candidates in which the names of Md. Jawed Akhtar, Shahnawaz Alam, Md. Kalim Alam and Md. Imtiyaz do not figure whereas after using Patna High Court CWJC No.22151 of 2012 (6) dt.04-04-2014 10 whitener the name of Mithlesh Kuamr has been added.and caste has been shown to Teli whereas in original record shows, he is by caste Suri but marks that has been shown is of Mithlesh Kumar. Learned counsel for the petitioners points out from the record that Arti Devi was selected as she was underage but later on by tempering the record the word „underage‟ erased by whitener and she has been selected illegally but she is still in service.
11. Having considered the rival contentions of learned counsel for the parties, firstly this Court would decide whether there is manipulation and tempering of records is writ at large, whether Renu Kumari Pandey‟s case will save the petitioners from the judicial scrutiny of this Court. In will be appropriate to quote paragraph 18 of the aforesaid judgment:
"18. We may also note here that though the State Government framed a complete scheme for employment of Panchayat Shiksha Mitra at Gram Panchayat level in furtherance of its goal of "Education for All", in none of the aforesaid Resolutions the Government had provided for an adjudicatory machinery. In other words, the State Government did not make any provision for redressal of grievance in respect of selection and employment of Panchayat Shiksha Mitra or their re-employment after the expiry of the contractual period. On perusal of the records of the above writ petitions, we find that in absence of such machinery, the aggrieved persons approached the authority whom such persons considered to be the competent/the convenient authority. In our Patna High Court CWJC No.22151 of 2012 (6) dt.04-04-2014 11 opinion, in absence of powers expressly conferred upon any such authority the reports or the orders made by such authority are of no consequence. No relief can be granted on the basis of the finding recorded by such authority. We may also point out that Elementary teachers Appellate Authority constituted under Rule 18 of the Rules, as amended by Bihar Panchayat Elementary Teacher (Employment and service conditions) (Amendment) Rules, 2008 is empowered to entertain, hear and decide the appeals arising out of the employment of elementary teachers under the Rules. The said appellate authority has no jurisdiction to entertain, hear or decide disputes relating to the employment of Panchayat Shiksha Mitra under the then prevalent Resolutions, Circulars, Orders, Instructions."
12. The Court has held that appointment of Shiksha Mitra cannot be the subject matter of adjudication before the Appellate Authority. In that case no issue was raised about tempering of records appointment obtained surreptiously in tainted manner. There was no allegation of playing fraud in the matter of appointment of Skhiksha Mitra. In the case of The State of Bihar & others Vs. Amar Kumar and another (L.P.A. No.329 of 2008 where the question was raised where a person having been appointed on the strength of forgery cannot be allowed to continue the post of Shiksha Mitra. The Court has held that any appointment made illegally will be subject matter of judicial scrutiny if it is brought to the notice Patna High Court CWJC No.22151 of 2012 (6) dt.04-04-2014 12 of the court. If the argument of the petitioner is accepted that the Appellate Authority was devoid of the power will lead to serious result as it will be a premium to person who obtained appointment by playing fraud which can not be intention of rule of law. It will be apt to quote paragraph 2 and 3 of the aforesaid judgment:
"2. If the argument of the counsel for the state is accepted, it would amount to putting premium to a forgery committed by Navin Kumar. The State counsel does not dispute that the selection of Navin Kumar on 6.10.2005 was bad in law as he had produced forged certificate. If that be so, merely because when the Panchayat Teachers Appointment Rule came into effect on 1.7.2006 and Navin Kumar was continuing in service because of his illegal appointment, he could not have been absorbed. Rather, the present respondent no.1 (original writ petitioner) who had secured higher marks in selection process and who was already appointed earlier, ought to have been continued and would be deemed to have continued from the date he was initially appointed.
3. The Single Judge considered the matter thus:
" I find that the stand taken by the respondents in the counter affidavit is arbitrary and erroneous. The petitioner was selected and his joining was accepted. He was relieved for training. In the meantime on the basis of forged certificate some one opposed his selection and without any enquiry petitioner‟s selection was cancelled. In petitioner‟s place one Navin Kumar was selected. Subsequently on verification it was found that the marks obtained by him was forged. This was found much before the coming of the new Panchayat Teachers Appointment Rule. Selection of Navin Kumar was cancelled on 6.10.2005. On such cancellation the petitioner could have been asked to re-join on the post of Panchayat Shiksha Mitra but the respondents kept the matter pending for eight months. The Panchayat Teachers Appointment Rule came on 1.7.2006. The Patna High Court CWJC No.22151 of 2012 (6) dt.04-04-2014 13 stand which has been taken by the respondents cannot be accepted as genuine valid and applicable in the case of the petitioner.
Considering the facts and circumstances of the case the petitioner should be deemed to be continuing on the post of Panchayat Shiksha Mitra right from
13.7.2005 i.e. the date of his joining, till the date Navin Kumar was allowed to join on the post."
13. In this view of the matter, this Court is of the view that if the appointment has been obtained in tainted manner, by act of forgery, the courts are not devoid of power to examine the correctness of the appointment and declare the same illegal. The original record which has been produced before this Court shows manipulation in selection register of Shiksha Mitra is in huge way, the proceeding has been tampered, at one place the document which has been brought by the petitioner shows that the name has been shown in the selected candidates whereas the document contained in Annexures- B and C of C.W.J.C. No.22530 of 2012 which has been brought by the private respondent shows that petitioners were not selected.
14. On perusal of original record it appears that Mithlesh Kumar has been shown as a candidate selected. Sangita Kumari has also been shown as selected candidate. Md. Jawed Akhtar has been super imposed in place by using whitener. Patna High Court CWJC No.22151 of 2012 (6) dt.04-04-2014 14 Other persons on verification have not been shown selected.
15. Proceeding No.3 of the proceeding dated 15.12. 2005 shows that the whitener has been used and it has been shown that Nutan Singh has tendered her resignation and thereafter Md. Jawed Akhtar has been appointed. Similarly Sangita Kumari has been tendered resignation and Md. Kalim Alam has been appointed. Mithilesh Kumar has been appointed in place of Ram Kishroe Sah and later on proceeding no.4 shows that Smt. Gayatri Kumari, Jayanti Devi, Chinta Kumari and Md. Imtiyaz were selected. Proceeding dated 15.12.2005 of the Niyojan Samittee shows, information was given to the Block Education Officer that when no application from female of scheduled caste category candidate was received, same was kept vacant and names of 22 candidates have been mentioned. On perusal of original records shows proceeding of Niyojan Samittee has been tampered at many places and some proceeding was added by different pen which is apparently clear, identified by naked eyes. It appears that Md. Kalim Alam, Mithlesh Kumar, Shahnawaz Alam and Md. Imtiyaz have been appointed by manipulating the record and the record further shows altogether six persons have been appointed as Urdu Teachers. The Appellate Authority is Patna High Court CWJC No.22151 of 2012 (6) dt.04-04-2014 15 correct in holding that roster point has not been followed, the documents have been tampered and at the same time some of the candidates has forcefully been shown to have tendered resignation. It is also very important that Sangita Kumari has raised her grievance from the initial stage when she was not appointed but Jabed Akhtar has been adjusted under female category. Item no.3 of the proceeding dated 15.12.2005 shows that Ram Kishore Sah was selected but in his place Mithlesh Kumar has been adjusted. It appears from the proceeding of Sukh Subhidha Committee in the matter of appointment neither the rule of reservation nor the merit of the candidates has been taken into consideration. Some of the persons have been adjusted by tampering and manipulation of record which cannot be approved. As other persons are not before this Court, this Court cannot pass any order against them but may act in accordance with law.
16. This Court is of the view that whole selection is tainted with malafide and illegal. This Court does find any merit in the writ petitions. Accordingly the same are dismissed.
Vinay/- (Shivaji Pandey, J)