Patna High Court
Kumari Shakuntala Sah vs The State Of Bihar & Ors on 1 April, 2015
Author: Mihir Kumar Jha
Bench: Mihir Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.18053 of 2012
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Kumari Shakuntala Sah W/O Ram Baboo Sah And D/O Musaheb Sah Resident Of
Village- Barheta, P.O- Barheta, P.S- Kalyanpur, District- Samastipur (Bihar)
.... .... Petitioner/s
Versus
1. The State Of Bihar Through The Secretary, Human Resources Development,
Government Of Bihar, Patna.
2. The District Magistrate- Cum- Chairman, Bihar Shiksha Pariyojna, Samastipur,
District- Samastipur (Bihar)
3. The District Teacher Employment Appellate Authority, Samastipur, District-
Samastipur (Bihar).
4. The District Education Superintendent, Samastipur, District-Samastipur (Bihar).
5. The Block Development Officer, Kalyanpur, Samastipur, Distict-Samastipur
(Bihar).
6. The Block Education Extension Officer, Kalyanpur, Samastipur, District-
Samastipur (Bihar).
7. The Mukhiya, Gram Panchayat Raj Barheta, Kalyanpur, District-Samastipur
(Bihar).
8. The Panchayat Secretary, Gram Panchayat Raj Barheta, Kalyanpur District-
Samastipur (Bihar).
9. Sandhya Kumari, Daughter of Sri Rajeshwar Rai, Resident of Village-
Jauardanpur, P.S.-Kalyanpur, District-Samastipur (Bihar).
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. VINAY KUMAR MISHRA
For the Respondent/s : Mr. PRABHAKAR TEKRIWAL GA1
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CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA
CAV JUDGMENT
Date: 01-04-2015
Heard learned counsel for the parties.
The prayer of the petitioner in this writ application
reads as follows:-
"For issuance of appropriate writ, rule for
quashing the order dated 21.08.2012 passed in Appeal No.
1538/11 (Panchayat) by the learned District Teacher
Employment Appellate Authority, Samastipur by which
Petitioner's prayer for re-appointment as a Primary
Teacher in Barheta Panchayat of Kalyanpur Block in the
District of Samastipur was dismissed by the District
Patna High Court CWJC No.18053 of 2012 dt 01-04-2015 2
Teacher Employment Appellate Authority, Samastipur on
the ground that from the perusal of the Proceeding
Register, Counselling Register, Merit List it appears that
verification of certificate of Trained candidate was done on
07.10.2006and 08.10.2006 and in Reserved Category and Untrained candidate, verification of certificates was been done on 10.11.2006. There is cutting on 10.11.2006 and publication of merit list of Untrained candidates has been shown on 15.11.2006 and when merit list was prepared on 15.11.2006 then period to that the Counselling cannot be done and the petitioner has been appointed on the basis of counseling held on 10.11.2006 and it make whole process doubtful."
For issuance of a direction to cancel the appointment of Respondent No. 9 and re-appointment of the Petitioner as a Primary Teacher."
The facts giving rise to the present writ application lies in a narrow compass. It is the case of the petitioner that she having passed her intermediate examination, had filed an application for the post of Panchayat Teacher in Gram Panchayat Raj, Barheta of Kalyanpur Block in the district of Samastipur and in the merit list prepared by the selection Committee, her name was placed at serial no. 22 of the untrained female candidates. According to her, no trained candidate had appeared for counseling and therefore a notice was issued by Panchayat Secretary to the untrained candidates to appear for their counseling, and in course of such counseling she was placed at serial no. 2 of the Patna High Court CWJC No.18053 of 2012 dt 01-04-2015 3 backward category female. According to the petitioner, the notice of counseling was given by Panchayat Secretary to all the applicants under postal certificate and such counseling was held on 10.11.2006. She has further claimed that from the merit list one Anita Kumari whose name had appeared at serial no. 1, was offered appointment on the post of Panchayat Teacher on 22.01.2007, but she had refused such an offer of appointment on account of her personal reason and in her letter refusing such appointment, she had also written to the authorities of the panchayat that the petitioner could have been appointed as she was second in the panel. In this regard, the petitioner claims that the aforesaid Anita Kumari had also separately given her no objection in writing on 27.01.2007.
Further, case of the petitioner is that she was appointed as Panchayat Teacher on 29.01.2007 whereafter she had submitted her joining in Rajkiya Prathmik Vidyalaya on 05.02.2007. The petitioner has also stated that it was only after her appointment that respondent no. 9 had Patna High Court CWJC No.18053 of 2012 dt 01-04-2015 4 filed a complaint as with regard to her being edged out despite her being having higher marks than petitioner.
According to the petitioner, on this complaint of respondent no. 9, the Block Development Officer, Kalyanpur, respondent no. 5 had issued a show cause notice both to the Mukhia and Panchayat Secretary and in the show cause reply both of them had stated that respondent no. 9 had not appeared in the counseling as she was interested in her appointment in other Panchayat. The Block Development Officer, Kalyanpur however by his order dated 23.11.2007, had allowed the complaint of the respondent no. 9, by cancelling the appointment of the petitioner vide his order dated 23.11.2007, and as a result thereof the Panchayat Secretary had issued consequential order of appointment of respondent no. 9 on 07.12.2007.
According to the petitioner, she had assailed the aforesaid order of the B.D.O., Kalyanpur dated 23.11.2007 in C.W.J.C No. 12039 of 2008, which was permitted to be withdrawn by an order dated 11.04.2011 with a liberty to Patna High Court CWJC No.18053 of 2012 dt 01-04-2015 5 move the District Teachers Employment Appellate Authority, Samastipur (hereinafter referred to as the Tribunal). The petitioner thereafter is said to have filed her application before the Tribunal vide Appeal No. 1538 of 2011 and the same was dismissed by the order of the Tribunal dated 16.03.2012, holding that there was no infirmity in the order of the B.D.O., Kalyanpur dated 23.11.2007.
The petitioner had again moved this Court in C.W.J.C No. 8382 of 2012 assailing the order of the Tribunal dated 16.03.2012 and this Court on 01.05.2012 had quashed the order of the Tribunal and remitted the matter back for fresh consideration and taking a decision on merits after complying the principles of natural justice. The impugned order of this writ application namely, the order of the Tribunal dated 28.08.2012 has been passed pursuant to the aforementioned direction of this Court dated 01.05.2012 in C.W.J.C No. 8382 of 2012.
Learned counsel for the petitioner has submitted that Patna High Court CWJC No.18053 of 2012 dt 01-04-2015 6 first of all the order passed by the B.D.O., Kalyanpur dated 23.11.2007, whereby and whereunder, for appointment of the petitioner was cancelled on a complaint filed by respondent no. 9, was itself in violation of the principles of natural justice because the petitioner was never heard by the B.D.O., Kalyanpur, who had disposed of the complaint of respondent no. 9, by asking show cause only from the Panchayat Secretary and the Mukhia. He has further submitted that when it was categorically stated by the Panchayat Secretary before the Tribunal that none except the petitioner and one Sandhya Kumari had appeared for counseling held on 10.11.2006, the finding arrived by the Tribunal as with regard to discrepancy in the course of counseling is contrary to the materials on record. He has also submitted that in any event respondent no. 9, having not participated in the counseling held on 10.11.2006, had no right to claim appointment on the post of Panchayat Teacher after removing the petitioner.
According to learned counsel for the petitioner, the Patna High Court CWJC No.18053 of 2012 dt 01-04-2015 7 Tribunal while passing the impugned order having itself come to a finding that the order passed by the Block Development Officer, Kalyanpur dated 23.11.2007, terminating the services of the petitioner was in violation of the principles of natural justice, ought to have not approved the order of termination of the petitioner passed by the Block Development Officer, Kalyanpur.
He has also submitted that the Tribunal had earlier failed to take into account that the writ application filed by respondent no. 9, C.W.J.C No. 4764 of 2008 seeking a direction for implementing the order of Block Development Officer, Kalyanpur dated 23.11.2007, as with regard to terminating the services of the petitioner and directing for appointment of respondent no. 9 had been dismissed by the order of this Court dated 14.07.2011, which in effect would mean that this Court was not at all impressed with the challenge of respondent no. 9 to the order of the Block Development Officer, Kalyanpur dated 23.11.2007, as with regard to appointment of respondent no. 9.
Patna High Court CWJC No.18053 of 2012 dt 01-04-2015 8 Learned counsel for the State on the other hand has supported the finding of the Tribunal and in this regard he has pointed out that at no point of time the earlier order of termination of service of the petitioner passed by the B.D.O., Kalyanpur was interfered by this Court or the Tribunal and in fact the said order of the B.D.O., Kalyanpur dated 23.11.2007, even when assailed by Sandhya Kumari, another illegally appointed candidate with the petitioner has stood affirmed on account of disposal of her writ application being C.W.J.C No. 4764 of 2008 by an order of this Court dated 14.07.2011. He has also supported the finding recorded by the Tribunal that there was not only interpolation in the records relating to alleged counseling of the petitioner and Sandhya Kumari, said to have been held on 10.11.2006, and that respondent no. 9 had been illegally edged out by the petitioner despite respondent no. 9 having higher marks and placed above the petitioner in the panel.
This Court in the light of the aforesaid submissions has also perused the materials on record as also looked into Patna High Court CWJC No.18053 of 2012 dt 01-04-2015 9 records of C.W.J.C No. 4764 of 2008 filed by respondent no. 9.
The question that would arise for consideration in this case is as to whether the Tribunal has committed any error in passing the impugned order.
Let it be noted that the case of the petitioner is that she had appeared in counseling on 10.11.2006. The Tribunal, however, on examination of the original records had categorically held that there was a cutting in the records on the date of 10.11.2006, and in fact there could have been no counselling held on 06.11.2006 as claimed by the petiotner, because the merit list of the untrained teachers was itself prepared on 15.11.2006. In this regard, the Tribunal has also found that out of 24 candidates of backward category female, the petitioner was at serial no. 22 and to say that only one candidate above the petitioner namely, Anita Kumari had appeared in counseling who also had given her consent in writing for appointment of the petitioner, would only go to show that the petitioner was Patna High Court CWJC No.18053 of 2012 dt 01-04-2015 10 appointed on account of the collusive role played by the Panchayat Secretary and the Mukhia.. In this regard, the further finding of the Tribunal is that even though the consent letter regarding refusal of the appointment byAnita Kumari dated 27.01.2007, who however is said to absent in the counseling allegedly held on 28.01.2007. The Tribunal, therefore, has also disbelieved the alleged story of letter issued by Panchayat Secretry for for appearance in the counseling sent by U.P.C., fixing the date of 10.11.2006 holding the same wholly doubtful because as per the proceeding book, the merit list of the backward category female untrained category was to be made only on 15.11.2006, whereafter only the notice of counseling could have been issued. To that extent, it would be also relevant to quote the following finding of the Tribunal in the impugned order, which reads as follows:-
^^mDr rF;ksa ds vkyksd esa ekuuh; mPp U;k;ky; }kjk CWJC No. 8382/2012 ds vkns'k ds vkyksd esa fu;kstu bdkbZ }kjk nkf[ky dk;Zokgh iath] ijke'kZ iath] es/kklwph dk lw{erk ls voyksdu fd;kA dk;Zokgh iath fnukad 16-11-2008 ls Li"V gksrk gS fd izf'kf{kr vH;FkhZ ds izek.k i= Patna High Court CWJC No.18053 of 2012 dt 01-04-2015 11 dk lR;kiu fnukad 07-10-2006 ,oa 08-10-2006 dks fd;k x;kA vkjf{kr dksfV esa vizf'kf{kr vH;FkhZ ds izek.k i= dk lR;kiu fd;k tuk gS ftls fnukad 10-11-2006 dks fd;k x;kA okLro esa mDr 10-11-2006 ij dfVax gSa vizf'kf{kr vH;fFkZ;ksa ds es/kklwph dk izdk'ku frfFk 15-11-2006 fn'kkZ;k x;k gSA ijke'kZ iath ls Li"V gS fd fnukad 10-11-2006 dks fi0o0 ¼efgyk½] v0fi0o0 ,oa v0tk0 efgyk vizf'kf{kr dk ijke'kZ djk;k x;k gSa mDr fojks/kkHkkl gh fu;kstu dh izfdz;k dk lansgkRed cukrh gSa tc 15-11-2006 dks ijke'kZ dh dkjZokbZ ugh agks ldrh Fkh rFkk mlh frfFk ds ijke'kZ ds vk/kkj ij BCF dksfV ds es/kk lwph esa Li"V gS fd dqy 24 vH;FkhZ BCF dksfV esa Fks rFkk fu;qDr f'kf{kdk 'kdqUryk lkg dk es/kkdze 22oka LFkku ij gSa mlls mij 21 BCF vH;FkhZ ek= vfurk dqekjh dk ijke'kZ iath esa uke n'kkZ;k x;k gS ftls dk;Zokgh iath esa dgk x;k gS fd O;fDrxr dkj.k ls fu;ksftr ugha gksuk pkgrh gS ftlds fu"or~ vfurk dqekjh dk vkosnu fnukad 27-01-2007 ds vyx ls nkf[ky fd;k x;k gSa dk;Zokgh iath ds cSBd fnukad 28-01-2007 dks vfurk dqekjh dks vuqifLFkr fn[kk;k x;k gSaA ;s fojks/kkHkkl Hkh BCF dksfV ds fu;kstu dks lansgkRed lkfcr djrk gSaA fu;kstu bdkbZ }kjk BCF dksfV ds izR;sd vH;FkhZ dks UPC }kjk ijke'kZ gsrq lwpuk nsus dh ckr Hkh xyr lkfcr gksrk gS D;ksafd dk;Zokgh iath ds vuqlkj fnukad 15-11-2006 dks vizf'kf{kr vH;FkhZ ds es/kklwph dk gh izdk'ku djuk FkkA vr% mDr foospu ls Li"V gS fd iz[k.M fodkl inkf/kdkjh dY;k.kiqj ds vkns'k fnukad 23-11-2007 dks fujk/kkj ekurs gq;s Hkh uSlfxZd U;k; ds vkyksd esa fu;kstu bdkbZ }kjk nkf[ky dkxtkrksa ls Li"V gS fd BCF dksfV dk Patna High Court CWJC No.18053 of 2012 dt 01-04-2015 12 fu;kstu esa foHkkxh; funsZ'k dk vuqikyu ugha fd;k x;k gS rFkk 'kdqUryk lkg dk nkok fujk/kkj gS Tkcfd mlls l{ke ;ksX;rk/kkjh BCF dksfV ds mEehnokj miyC/k gS rFkk mDr vk/kkj ij gh ckn esa fu;kstu bdkbZ }kjk fu;kstu dh dkjZokbZ dh x;h gSA vr% vkosfndk 'kdqUryk lkg dk nkok fujk/kkj gS rFkk okn [kkfjt fd;k tkrk gSA** (underlining for emphasis) The question therefore would be that if the Tribunal has ultimately reached to the aforesaid conclusion as with regard to the appointment of the petitioner being vitiated by fraud and irregularity as was also held earlier by the Block Development Officer, Kalyanpur in his order dated 23.11.2007, which despite being assailed by the petitioner in her first writ application in C.W.J.C No. 12039 of 2008 was not interfered with, can this Court today give any relief to the petitioner who has admittedly remained out of service from 23.11.2007, upon termination of her service?
It has to be kept in mind that the order dated 23.11.2007, passed by the B.D.O., Kalyanpur who at that point of time in terms of Rule-18 of Bihar Panchayat Teacher Appointment Rules-2006, as it has stood prior to Patna High Court CWJC No.18053 of 2012 dt 01-04-2015 13 its being amended in the year-2008 was the competent authority under the Rules was not interfered by this Court despite its having assailed by the petitioner in C.W.J.C No. 12039 of 2008 and this Court had only allowed the prayer for withdrawal of the writ petition with a liberty to move the Tribunal.
The petitioner who had secured only 40.77 per cent marks as against respondent no. 9, who had secured 63.88 per cent marks and was placed above in the panel, could not have been displaced by the petitioner. It is here that the finding of the B.D.O., Kalyanpur in his order dated 23.11.2007, becomes relevant because he also had in his order, alike the Tribunal had found that the appointment of the petitioner was made in collusive manner only with the help of Mukhia on account of being resident of the same village.
Let it be noted that the B.D.O., Kalyanpur also in his order dated 23.11.2007, had given valid and cogent reasons for terminating the service of the petitioner relevant Patna High Court CWJC No.18053 of 2012 dt 01-04-2015 14 portion whereof reads as follows:-
^^(i) tc iapk;r f'k{kd fu;kstu o"kZ 2006 esa izkjEHk esa flQZ izf'kf{kr f'k{kd dk fu;kstu fd;k tkuk Fkk rks fu;kstu bdkbZ fnukad 7@11@06 dks vizf'kf{kr vH;fFkZ;ksa dk dkmaflfyax ,oaa 10@11@06 dks fu;kstu fdl ifjfLFkfr esa dj fy;k x;kA
(ii) tc fu;ktu bdkbZ }kjk 10@11@06 dks gh fu;kstu dj fy;k x;k rks iwu% BC(F)dksfV dk dkmaflfyax 24@02@07 dks fd;k tkuk lansg dks tUe nsrk gSa A
(iii) vkosfndk dk ?kj vkSj iapk;r dh nwjh ek= ,d fdyksehVj ls Hkh de gS rks fu;kstu bdkbZ izFke Js.kh ds vH;FkhZ dks NksM+dj r`rh; Js.kh ds vH;FkhZ D;ksa p;u dj fy;k x;kA
(iv) es/kk lwph ds voyksdu ls Li"V gS fd vf/kdka'k vH;FkhZ tks vf/kd vad okys gSa vkl ikl iapk;r ds fuoklh gSa os dkmaflfyax esa mifLFkr ugha gq, vkSj ek= nks vH;FkhZ gh mifLFkr gq, rFkk mlesa ls Hkh ,d vH;FkhZ }kjk fyf[kr :i esa nsuk fd os fu;kstu ugha djsxh Li"V :i ls ;gka lkftl izrhr gksrk gSA
(v) lacaf/kr iapk;r lfpo ,oa ekuuh; eqf[k;kth dks vkosfndk }kjk fn, x;s fVdV lfgr fyQkQk ,oa vU; Jksr ls Hkh fof/kor lwpuk nsdj fu;kstu djuk pkfg, fFkk ysfdu fu;kstu bZdkbZ }kjk bldk Hkh ikyu ugh fd;k x;kA
(vi) BC(F) dksfV esa dqekjh 'kdqUryk lkg r`rh; Js.kh tks p;fur fd;s x;s gSa ;s mlh xzke ds gS ftl xzke ds ekuuh;k eqf[k;k gS tks lang dks tUe nsrk gSA
(vii) xzke iapk;r jkt cjgsrk }kjk ,d vH;FkhZ ,d o"khZ;
Patna High Court CWJC No.18053 of 2012 dt 01-04-2015 15 izf'k{k.k izkIr vH;FkhZ dk Hkh p;u fd;k x;k tks fu;e ds izfrdwy gSa vr% mijksDr of.kZr rF;ksa ds vk/kkj ij xzke iapk;r jkt cjgsrk ds fu;kstu bdkbZ }kjk BC(F) dksfV esa p;fur vH;FkhZ dqekjh 'kdqUryk lkg ¼r`rh; Js.kh½ dk p;u rRdkfyd izHkko ls jn~n fd;k tkrk gSA** This order of the B.D.O., Kalyanpur was passed within ten months of the alleged appointment of the petitioner on a complaint filed by respondent no. 9. The B.D.O at that point of time was the competent authority under Rule-18 of the Bihar Panchayat Teacher Appointment Rules-2006. As a matter of fact, this order was passed on a complaint filed by respondent no. 9 before the B.D.O., Kalyanpur and when the Mukhia and the Panchayat Secretary were not complying the order of the B.D.O., Kalyanpur despite cancellation of appointment of respondent no. 9, she (respondent no. 9) had filed her writ application being C.W.J.C No. 4764 of 2008, wherein, the B.D.O., Kalyanpur had filed his counter affidavit, paragraph nos. 5 and 6 whereof being relevant are quoted hereinbelow:-
Patna High Court CWJC No.18053 of 2012 dt 01-04-2015 16 "That the brief facts of the petitioner's case is that she has got more marks then the Respondent No. 7, namely, Kumari Sakuntala. She has not been appointed on the Post of Panchayat Teacher under the Backward Caste (Female) category under the said Panchayat. According to merit list prepared for the purpose of the said employment, the petitioner has got 63.88 point whereas the Respondent No. 7 got only 40.77 point, but the Respondent No. 7 has been illegally appointed on the said post in place of the petitioner. The petitioner filed a representation before the Block Development Officer, Kalyanpur with regard to the illegality committed in the employment of Respondent No. 7 on the post of Panchayat Teacher under Barheta Gram Panchayat.
That it is sated that after receiving the complaint of the petitioner, the B.D.O. Kalyanpur, enquired into the matter and found some irregularities in the employment Process of the Panchayat Teacher and accordingly cancelled the employment of Kumari Sakuntala Sah on the post of Panchayat Teacher and directed the Employment unit of the said Panchayat to make employment in accordance with the Procedure laid down in Rule 2006 and while doing the same maintain due transparency. The order dated 23.11.2007 as contained in memo No. 22 (Mo) dated 23.11.2007 is already on record as Annexure-3 to the writ petition."
The moment this Court would find that this Court did not interfere with the order of termination of the services of the petitioner dated 23.11.2007 passed by the Patna High Court CWJC No.18053 of 2012 dt 01-04-2015 17 Block Development Officer, Kalyanpur and the petitioner was only given liberty to approach the Tribunal, she cannot be at least heard to say that the Tribunal had committed any error in examining the case of the petitioner independently. Let it be noted that the order of the Block Development Officer, Kalyanpur dated 23.11.2007 was itself an order of the competent authority in terms of Rule-18 of Bihar Panchayat Teacher Appointment Rules-2006, inasmuch as, prior to 25.08.2008 such power of examining the complaint in the matter of appointment on the post of Panchayat Teacher was vested only in the Block Development Officer. The Tribunal was made the competent authority to examine the complaint relating to appointment and other service conditions of a Panchayat Teacher. Therefore, the Tribunal could not have set aside the order of the Block Development Officer, Kalyanpur and at best could have reached to its independent decision and conclusion which may have been different to one which was arrived by the Block Development Officer, Kalyanpur in his order dated Patna High Court CWJC No.18053 of 2012 dt 01-04-2015 18 23.11.2007 for upholding the appointment of the petitioner.
The next submission of learned counsel for the petitioner that even the writ application of respondent no. 9 being CWJC No. 4764 of 2008 had been dismissed by order dated 14.07.2011, which ought to have been weighed upon the Tribunal to decide in favour of the petitioner and against respondent no. 9 has no force.
As a matter of fact, from the records of CWJC No. 4764 of 2008, it would be found that the order of the Block Development Officer, Kalyanpur dated 23.11.2007 as with regard to cancellation of the appointment and direction for appointment of respondent no. 9 was sought to be enforced by filing of the aforesaid writ application by respondent no.
9. That writ petition filed on 14.03.2008, for the first time was taken up on 11.07.2011 and was dismissed for default on 14.07.2011. No order was passed on merits of the case by this Court in the writ application filed by respondent no. 9 and if the submission of learned counsel for the petitioner is taken to its logical conclusion, the dismissal of CWJC Patna High Court CWJC No.18053 of 2012 dt 01-04-2015 19 No. 4764 of 2008 by order dated 14.07.2011 would also amount to non interfering in the order of the Block Development Officer, Kalyanpur dated 23.11.2007, which as noted had two parts namely, canceling the appointment of the petitioner and directing the appointment of respondent no. 9.
In this regard, it has to be also kept in mind that the same order of Block Development Officer, Kalyanpur dated 23.11.2007, was also assailed by the petitioner in CWJC No. 12039 of 2008, wherein, the present respondent no. 9 was impleaded as respondent no. 8 and that writ application was dismissed as withdrawn giving only liberty to the petitioner to move the Tribunal. Thus, after the order dated 11.04.2011, there was no reason for respondent no 9, to press her pending writ application being CWJC No. 4764 of 2008 and its being dismissed for default can never have any adverse effect on respondent no. 9.
The Tribunal in fact on being moved by the petitioner in the first round after the order of this Court dated Patna High Court CWJC No.18053 of 2012 dt 01-04-2015 20 11.04.2011 passed in CWJC No. 12039 of 2008 had examined the whole issue relating to appointment of the petitioner and the order of the Block Development Officer, Kalyanpur dated 23.11.2007 by its order dated 16.03.2012, had rejected the claim of the petitioner by reaffirming the findings recorded by the Block Development Officer, Kalyanpur in his order dated 23.11.2007, wherein, it was held as follows:-
^^dqekjh 'kdqUryk lkg Hkh C.w.J.C. No. 12039/2008 nkf[ky dh Fkh ftls okil ysrs gq, [kkfjt dk vkns'k fnukad 11-04-2011 dks ikfjr fd;k x;k rFkk vkosfndk 'kdqUryk lkg dks funs'k fn;k x;k fd izkf/kdkj ds le{k okn nkf[ky djsaA ml vkyksd esa ;g okn izkf/kdkj ds le{k nkf[ky fd;k x;k gS rFkk okn esa foi{kh la/;k dqekjh Hkh ekuuh; mPp U;k;ky; esa vius okn esa vfHk:fp ugh yh gS rks CWJC No. 4764/2008 [kkfjt fd;k x;kA vkosfndk vihydRRkkZ }kjk iz[k.M fodkl inkf/kdkjh dY;k.kiqj ds i=kad 22¼ea0½ fnukad 23- 11-2007 ds vkns'k dks fujLr djus ds ckn nkf[ky fd;k x;k gSa iz[k.M fodkl inkf/kdkjh fnukad 23-11-2007 dks foLr`r vkns'k la/;k dqekjh ds vkosnu ij ikfjr fd, gSa rFkk fu;kstu bdkbZ dks funsZ'k fn, gSa fd xzke iapk;r jkt cjgsrk esa BCF dksfV ds vH;FkhZ dqekjh 'kdqUryk lkg dk p;u jn~n fd;k tkrk gS rFkk fu;kstu bdkbZ mDr dksfV esas fu;kstu iwjh ikjnkf'kZrk cjrrs gq, iw.kZ djus gsrq lHkh vH;FkhZ dks lwfpr djsa rFkk iapk;r f'k{kd Patna High Court CWJC No.18053 of 2012 dt 01-04-2015 21 fu;ekoyh 2006 dk ikyu djrs gq, BCF dksfV esa l{ke vH;FkhZ dk fu;kstu djsaA mDr le; esa iz[k.M fodkl inkf/kdkjh gh izkf/kdkj ds lnL; dk vf/kdkj xzg.k djrs FksA ;g Hkh Li"V gS fd l{ke inkf/kdkjh }kjk mDr vkns'k fnukad 23-11-2007 ikfjr fd;k x;k gSa vr% iqu% ;g izkf/kdkj mDr rF;ksa ij foospu djuk mfpr ugha le>rk gSa iz[k.M fodkl inkf/kdkjh }kjk ikfjr vkns'k iw.kZr% ;wfDrlaxr izrhr gksrk gSa vr% vyx ls iqu% fopkj djuk fof/klEer ugha gS rFkk okn [kkfjt fd;k tkrk gSA fu;kstu bdkbZ dks funsZ'k fn;k tkrk gS fd iz[k.M fodkl inkf/kdkjh] dY;k.kiqj ds vkns'k fnukad 23-11-2007 ds vkyksd esa BCF dksfV ds fu;kstu dh dkjZokbZ djsa ftlls U;k; dh j{kk gksA** As a matter of fact, respondent no. 9 could be appointed only in the year 2012 i.e., after a period of more than four and a half years because of the pendency of the case filed by the petitioner before this Court and the Tribunal. It is true that the aforesaid order of the Tribunal dated 27.03.2012, was set aside and the matter was remitted back to the Tribunal but then whatever was said by this Court in the order dated 01.05.2012, in no way could have affected respondent no. 9, inasmuch as, she has already been appointed prior to 01.05.2012 on the post of Panchayat Teacher. Thus, the order passed by this Court on Patna High Court CWJC No.18053 of 2012 dt 01-04-2015 22 01.05.2012 in CWJC No. 8382 of 2012, wherein, the Tribunal was directed to examine the case of the petitioner vis a vis respondent no. 9, on merits did not mean that this Court had also expressed any opinion on the claim of the petitioner which was set aside by the Block Development Officer, Kalyanpur in his order dated 23.11.2007. The order of this Court dated 01.05.2012 in the second writ petition filed by the petitioner in CWJC No. 12039 of 2008, reads as follows:-
"Mr. Vinay Kumar Mishra, learned counsel for the petitioner states that this matter relates to Panchayat Teacher. The petitioner has an alternative remedy of moving the District Teachers Appellate Tribunal, which he is inclined to avail and, as such, seeks permission to withdraw this application to file appropriate application before the Tribunal aforesaid.
In view of the aforesaid, leave is granted. The writ application is dismissed as withdrawn giving liberty to the petitioner to move the Tribunal."
The Tribunal in fact had passed a fresh order dated 28.08.2012, which has been assailed in this writ application by the petitioner in her third writ application.
From the findings recorded by the Tribunal as already quoted above, it would be apparent that the story of Patna High Court CWJC No.18053 of 2012 dt 01-04-2015 23 counseling on 10.11.2006 of the petitioner and one more candidate namely, Anita Kumari was found to be doubtful in view of the cutting/interpolation in the proceeding book. The Tribunal in this regard from the records has found that the date of counseling was 15.11.2006 and therefore, the story of the counseling of the petitioner dated 10.11.2006 did not inspire confidence. The further finding of the Tribunal is that in the merit list of 24 persons and the story of counseling of Anita Kumari at serial no. 21 and the petitioner at Serial No. 22 by excluding all others would itself go to show that the entire procedure of appointment was done in a suspicious and surreptitious manner. The Tribunal again by looking into the records has doubted the correctness and notice of counseling being sent under certificate of posting (U.P.C).
These findings of fact recorded by the Tribunal can never be called to be either perverse or irrelevant. Reliance placed by the learned counsel for the petitioner on the U.P.C enclosed as Annexure-2 is also wholly misplaced, Patna High Court CWJC No.18053 of 2012 dt 01-04-2015 24 inasmuch as, it has gone to show that on 07.11.2006, 24 persons were allegedly sent notice to appear in counseling on 10.11.2006. Thus with 2 clear days, the notice of counseling allegedly sent even before the publication of the merit list fixed for 15.11.2006, would raise a lot of question mark as with regard to the whole story introduced by the petitioner for justifying her appointment on the post of Panchayat Teacher by excluding much more meritorious candidate like respondent no. 9.
In view of the aforementioned admitted fact that respondent no. 9 was better candidate on merits as against the petitioner and that the order of Block Development Officer, Kalyanpur dated 23.11.2007 did not suffer from any factual infirmity, this Court would not be now inclined to interefere with the aforementioned order of the Block Development Officer, Kalyanpur dated 23.11.2007, speciallly when the same has not been assailed before this Court in the present writ application, wherein, only order of Tribunal dated 21.08.2012, has been called in question. The Patna High Court CWJC No.18053 of 2012 dt 01-04-2015 25 plea of violation of the principles of natural justice in the order of Block Development Officer, Kalyanpur dated 23.11.2007, can now cannot be made a ground specially when that order was earlier not interfered by this Court and the petitioner was only given liberty to move the Tribunal on two occasions in her two writ petitions.
As a matter of fact, once this aspect becomes clear that there were interpolation in the records of the Tribunal and favour was bestowed on the petitioner by making her appointment by the then mukhia, will itself take away the requirement of fulfillment of the principles of natural justice. Law in this regard is well settled that if the appointment itself is obtained by playing fraud, no right can be claimed on the basis of such appointment much less adherence to the principles of natural justice. Reference in this connection may be usefully made to the judgment of the Full Bench of this Court in the case of Rita Mishra Vs. State of Bihar & Ors. reported in 1987 BBCJ 701 which has been also approved by the Apex Court in the case of R. Patna High Court CWJC No.18053 of 2012 dt 01-04-2015 26 Vishwanatha Pillai Vs. State of Kerala & Ors. reported in 2004(2) SCC 105 wherein it was held that:-
"15. --------- Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India. Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of a false caste certificate has become final. The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Castes. In view of the finding recorded by the Scrutiny Committee and upheld up to this Court, he has disqualified himself to hold the post. The appointment was void from its inception. It cannot be said that the said void appointment would enable the appellant to claim that he was holding a civil post within the meaning of Article 311 of the Constitution of India. As the appellant had obtained the appointment by playing a fraud, he cannot be allowed to take advantage of his own fraud in entering the service and claim that he was holder of the post entitled to be dealt with in terms of Article 311 of the Constitution of India or the Rules framed thereunder. Where an appointment in a service has been acquired by practicing fraud or deceit, such an appointment is no appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all.
16. In Ishwar Dayal Sah v. State of Bihar the Division Bench of the Patna High Court examined the point as to whether a person who obtained the appointment on the basis of a false caste certificate was entitled to the protection of Article 311 of the Constitution. In the said case the employee had obtained Patna High Court CWJC No.18053 of 2012 dt 01-04-2015 27 appointment by producing a caste certificate that he belonged to a Scheduled Caste community which later on was found to be false. His appointment was cancelled. It was contended by the employee that the cancellation of his appointment amounted to removal from service within the meaning of Article 311 of the Constitution and was therefore void. It was contended that he could not be terminated from service without holding departmental inquiry as provided under the Rules. Dealing with the above contention, the High Court held that if the very appointment to the civil post is vitiated by fraud, forgery or crime or illegality, it would necessarily follow that no constitutional rights under Article 311 of the Constitution can possibly flow. It was held: (Lab IC pp. 394-95, para 12) If the very appointment to civil post is vitiated by fraud, forgery or crime or illegality, it would necessarily follow that no constitutional rights under Article 311 can possibly flow from such a tainted force. In such a situation, the question is whether the person concerned is at all a civil servant of the Union or the State and if he is not validly so, then the issue remains outside the purview of Article 311. If the very entry or the crossing of the threshold into the arena of the civil service of the State or the Union is put in issue and the door is barred against him, the cloak of protection under Article 311 is not attracted.
17. The point was again examined by a Full Bench of the Patna High Court in Rita Mishra v. Director, Primary Education, Bihar. The question posed before the Full Bench was whether a public servant was entitled to payment of salary to him for the work done despite the fact that his letter of appointment was forged, fraudulent or illegal. The Full Bench held: (AIR p. 32, para 13) "13. It is manifest from the above that the rights to salary, pension and other service benefits are entirely statutory in nature in public service. Therefore, these rights, including the right to salary, spring from a valid Patna High Court CWJC No.18053 of 2012 dt 01-04-2015 28 and legal appointment to the post. Once it is found that the very appointment is illegal and is non est in the eye of the law, no statutory entitlement for salary or consequential rights of pension and other monetary benefits can arise. In particular, if the very appointment is rested on forgery, no statutory right can flow from it."
18. We agree with the view taken by the Patna High Court in the aforesaid cases.
19. It was then contended by Shri Ranjit Kumar, learned Senior Counsel for the appellant that since the appellant has rendered about 27 years of service, the order of dismissal be substituted by an order of compulsory retirement or removal from service to protect the pensionary benefits of the appellant. We do not find any substance in this submission as well. The rights to salary, pension and other service benefits are entirely statutory in nature in public service. The appellant obtained the appointment against a post meant for a reserved candidate by producing a false caste certificate and by playing a fraud. His appointment to the post was void and non est in the eye of the law. The right to salary or pension after retirement flows from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if the appointment was valid and legal. Such benefits cannot be given in a case where the appointment was found to have been obtained fraudulently and rested on a false caste certificate. A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for a Scheduled Caste, thus depriving a genuine Scheduled Caste candidate of appointment to that post, does not deserve any sympathy or indulgence of this Court. A person who seeks equity must come with clean hands. He, who comes to the court with false claims, cannot plead equity nor would the court be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in Patna High Court CWJC No.18053 of 2012 dt 01-04-2015 29 a fair and equitable manner. Equity jurisdiction cannot be exercised in the case of a person who got the appointment on the basis of a false caste certificate by playing a fraud. No sympathy and equitable consideration can come to his rescue. We are of the view that equity or compassion cannot be allowed to bend the arms of law in a case where an individual acquired a status by practicing fraud."
(underlining for emphasis) That being so, this Court also does not find any merit in the plea of violation of the principles of natural justice which in fact appear to be the main sheet anchor of the submissions of learned counsel for the petitioner. This Court must also cannot ignore the fact that the petitioner ultimately got full liberty to prove her case before the Tribunal and the principles of natural justice were also fully complied before the Tribunal.
Thus, for the reasons indicated above, this Court does not find any error in the order of the Tribunal which has only upheld the appointment of a more meritorious candidate like respondent no. 9 while rejecting the claim of appointment of petitioner on the ground of its being vitiated by fraud/interpolation on record and favoritism bestowed to Patna High Court CWJC No.18053 of 2012 dt 01-04-2015 30 her by the mukhia.
In the result this application fails and is hereby dismissed.
(Mihir Kumar Jha, J) Ranjan/-
U