Patna High Court
Arvind Kumar vs The State Of Bihar And Ors on 14 August, 2020
Author: Mohit Kumar Shah
Bench: Mohit Kumar Shah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.8953 of 2018
======================================================
Arvind Kumar Son of Shravan Yadav, Resident of New Colony, Ratanmala,
Bagaha-1, Post Office+Police Station- Bagaha, District- West Champaran.
... ... Petitioner/s
Versus
1. The State Of Bihar through Principal Secretary Education Department,
Government of Bihar, Patna
2. The Director, Primary Education, Education Department, Govt. of Bihar,
Patna.
3. The Chairman, Bihar School Examination Board, Patna.
4. State Appellate Authority, Education Department, Bihar.
5. The Presiding Officer, District Appellate Authority, West Champaran at
Bettiah.
6. District Education Officer, West Champaran at Bettiah.
7. District Programme Officer, (Establishment) West Champaran at Bettiah.
8. Block Development Officer, Bagaha-1 District- West Champaran.
9. Circle Officer, Bagaha-2, District- West Champaran.
10. Block Education Extension (B.E.E.O.) Officer, Bagaha-1 West Champaran
at Bettiah.
11. Chotelal Patel, Son of Mangal Das, Permanent address resident of Village-
Amtahan Parsa Chak Gobarahi Ward No.4, Block Mithoura, Gram
Panchayat, Parsachak, Gobrahi, District- Maharajganj, Uttar Pradesh, at
present resident of Village- Bherachowk (Tola Sarsaiya) Post Office-
Farasahani, Police Station- Loukariya, District- West Champaran.
12. The State Council for (NCERT) Educational Research and training through
the Director, Patna.
.. ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. P.K.Shahi, Sr. Advocate
Mr.Zainul Abedin, Advocate
For the Respondent No. 11 : Mr. Awdhesh Kumar Mishra, Advocate
Mr. Pratap Sharma, Advocate
Mr. Ajay Kumar, Advocate
Patna High Court CWJC No.8953 of 2018 dt.14-08-2020
2/24
Ms. Rita Rai, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
CAV JUDGMENT
Date : 14-08-2020
The present writ petition has been filed for quashing the
order dated 18.4.2018 passed by the learned State Appellate
Authority in Appeal No. 51 of 2017 whereby and whereunder
the appeal filed by the Private Respondent No. 11 has been
allowed.
2. The brief facts of the case are that the petitioner herein
passed his matriculation examination in the year 2001 in first
division, the intermediate examination in second division, B.A.
(Hons) in Geography in second division and thereafter he has
also passed the T.E.T Exam. It is the case of the petitioner that
he is a permanent resident of the State of Bihar, as is evident
from his residential certificate issued by the Circle Officer,
Bagaha-I, West Champaran and belongs to the backward class,
as is also apparent from the caste certificate issued by the Circle
Officer, Bagaha-I, West Champaran. The petitioner is stated to
have passed Bihar Elementary Teachers Eligibility Test (herein
after referred to as the "BETET") in the year 2011, held by the
Bihar Examination Board, Patna, hence, is qualified to be
appointed as a Primary Teacher. In the year 2012, the petitioner
Patna High Court CWJC No.8953 of 2018 dt.14-08-2020
3/24
had applied for appointment as Block Teacher at Bagaha I. The
Appointment Rules of the year, 2006 clearly mentions that for
appointment as Block Teacher, a candidate must be a citizen of
India and should be permanent resident of State of Bihar.
Ultimately, the petitioner is stated to have not been appointed as
a Block Teacher, hence, he was compelled to file a case before
the learned District Appellate Authority, West Champaran at
Bettiah bearing Case No. 25 of 2015, which was allowed by the
learned District Appellate Authority by an order dated 9.9.2016
and the following findings were recorded in the said judgment,
gist whereof is reproduced herein below:-
(i) It is apparent from the materials on record
that under a pre-planned scheme, private
respondent, namely, Chhote Lal Patel had
purchased .04 decimal of land in the State of
Bihar vide document dated 2.7.2010 wherein he
has depicted his address to be that of the State of
Bihar and his caste as 'Kurmi', a caste for which
reservation is provided in the State services.
(ii)The said Chhote Lal Patel, showing himself
to be resident of the State of Bihar and
Patna High Court CWJC No.8953 of 2018 dt.14-08-2020
4/24
belonging to the reserved category, had applied
for BETET-2011 Exam whereas on that date, he
was not the resident of the State of Bihar
inasmuch as he neither possessed the residential
certificate nor the caste certificate. The
examination was held on 20.12.2011 and
21.12.2011and the result of the exam undertaken by the said Chhote Lal Patel was declared under the backward category whereas he did not possess the reservation and residential certificate.
(iii) The said Chhote Lal Patel applied for appointment on the post of Teacher at Block- Bagaha-I, District-West Champaran under the category VI-VIII and he was granted appointment on the post of Teacher on 19.11.201,4 under the reserved category.
(iv) The appointing unit should have considered that a resident of some other State could not have been granted the benefit of reservation merely on the basis of such person having Patna High Court CWJC No.8953 of 2018 dt.14-08-2020 5/24 purchased land in the State of Bihar. The said Chhote Lal Patel has obstructed the genuine backward class candidate by merely purchasing a small piece of land for the purpose of passing the BETET-2011 Examination under the BC category and obtaining appointment illegally on the post of teacher.
In such view of the matter, the learned District Appellate Tribunal, West Champaran, by a judgment dated 09.09.2016 had declared the said Chhote Lal Patel to be a general category candidate and directed the Teachers Recruitment Committee of Block Bagaha-I, under the district of West Champaran, to take up the appointment issue of the petitioner herein under the BC category as also consider other eligible BC category candidates while finalizing the merit list for appointment of teachers.
3. It is the case of the petitioner that after the aforesaid order dated 09.09.2016 was passed by the Ld. District Appellate Authority, the petitioner was selected on 27.3.2017 by the Block Niyojan Samiti Bagaha-I, West Champaran and was posted at Government Middle School, Tola Parsauni, Bagaha-I vide memo no. 303 whereupon the petitioner had joined on Patna High Court CWJC No.8953 of 2018 dt.14-08-2020 6/24 30.3.2017 and is working since then.
4. It appears that the private respondent no. 11, namely, Sri Chhote Lal Patel had challenged the aforesaid order dated 09.09.2016 passed by the District Appellate Authority, West Champaran by filing an appeal bearing Appeal (Case) No. 51 of 2017 before the Ld. State Appellate Authority, Patna, which has been pleased to allow the appeal of the respondent no. 11 by the impugned judgment dated 18.04.2018, relevant findings whereof are quoted herein below:-
(i) The appellant had claimed the employment in the said category on the basis of documents appended at Annexures-1, 2 and 3. Annexure-1 is the copy of the Sale Deed dated 24-02-2010, by which the appellant had acquired 04 decimal of land in Bagha. Annexure-2 is the copy of the Caste certificate dated 24.02.2012 issued by the C.O., certifying that the appellant belongs to B.C. category. Annexure-3 is the Residential certificate dated 28-05-2012 issued by the C.O., Bagha-II, declaring that the appellant is the resident of Village/Town-Bheda Chura undr Laukariya P.S. in Block-Bagaha-2, Sub-Division-Bagha in West Patna High Court CWJC No.8953 of 2018 dt.14-08-2020 7/24 Champaran (Bettiah). The learned D.A., on consideration of the case of the parties, found the Caste certificate and the Residential certificate wrongly issued to the appellant by the C.O., Bagha-II and set aside those certificates. It was further found that only the appellant and the private respondent were present during the selection process claiming appointment on the post of Block Teacher in the said category. The appellant having found not entitled to be considered against the B.C. (Male) category, the D.A. directed the Employment Committee of Block Bagha-I to take up appointment issue of Arvind Kumar (private respondent) in B.C. category as the most urgent issue. It further directed that in case of finalisation of the merit list, the case of other B.C. category candidates should also be taken into account.
(ii) The core issue is with respect to the definition of "resident of Bihar". In other words, who shall be treated as the resident of the State. Pertinently, it may be noted that the same is not defined by the Patna High Court CWJC No.8953 of 2018 dt.14-08-2020 8/24 Rules governing the selection process. Both the parties have, therefore, referred to the definition of such 'residency' in the context of other Rules/Act or Circular of the Government.
However, there is no dispute among them that if the appellant is held to be the resident of the district in the State of Bihar, then his selection as Teacher cannot be faulted. According to the appellant, he is a resident of the district, after purchase of land in the year 2010 and getting all amenities such as electric connection etc. The land stand mutated. The sale document and the revenue records such as Khatiyan etc. are the relevant papers/ documents that determine the 'residency' of the applicant. It is also submitted that the appellant had filed application for deleting his name from the Electoral Roll/Voters List prepared and published in the State of Uttar Pradesh. Secondly, it has been urged that in the context of the Rules in question, the State Government has issued an order clarifying that the Caste certificate / Residency certificate can Patna High Court CWJC No.8953 of 2018 dt.14-08-2020 9/24 be issued by the C.O. of the concerned Anchal. The appellant has enclosed the Voters List of the constituency in which he is currently staying, which contains his name. The Caste certificate and the Residency certificate, it is submitted, have rightly been issued by the C.O. To support his claim of residency, the appellant has annexed the certificate issued by the Mukhiya of the Gram Panchayat Raj Yamunapur Tarwaliya, Bagha-II.
(iii) Considering the submission made at the Bar on the point of validity of the Caste certificate and the Residency certificate issued in favour of the appellant by the C.O., Bagha-II, the Court has no hesitation to hold that the Government had already clarified that such certificate(s) can be issued by the Circle Officer. Another contention of the appellant is that the District Authority could not have set aside the Caste certificate and the Residency certificate, as those certificates were issued after proper inquiry. It is not the case of any of the party that the applicant in the process of selection must be the original Patna High Court CWJC No.8953 of 2018 dt.14-08-2020 10/24 resident of the State (ewy fuoklh). In order to verify the claim of residency, the administration is required to make appropriate inquiry and look to the revenue records as well. The appellant has produced few documents to show that he was the resident of the district when he made application.
(iv) The District Authority noted in the order that the C.O. has not appeared to vouch those certificates issued by him and that the appellant was not a permanent resident of Bihar, inasmuch as he had no land/ residential plot recorded in the Khatiyan. In the considered view of the Court, the consideration made by the District Authority for setting aside the Caste certificate and the Residency certificate were not appropriate. The Rule governing the field provides that the applicant should be a resident of Bihar. It does not say the permanent resident of Bihar. On consideration of the submission made by the parties and in the light of the discussions made above, the Court finds substance in the submission of the appellant. The appeal is Patna High Court CWJC No.8953 of 2018 dt.14-08-2020 11/24 allowed. The order dated 9.9.2016 passed in Appeal No. 25 /2015 by the District Authority is set aside. The order present, however, shall not preclude the State respondents from making inquiry with regard to validity / propriety of the Caste certificate / Residency certificate issued by the C.O., Bagha-II in favour of the appellant in accordance with law."
5. The learned Senior Counsel for the petitioner has submitted that the name of the respondent no. 11 figures in the voter list of the year, 2015 pertaining to the State Legislative voters List, Siswa (General) in the State of UP, which shows that the respondent no. 11 was not the resident in the State of Bihar in the year, 2012. It is submitted that the caste and residential certificate issued to the respondent no. 11 is forged and fabricated inasmuch as the same has not been counter signed by the District Magistrate. It is also stated that merely acquiring a small piece of land, does not make the respondent no. 11, a permanent resident of Bihar. Other discrepancies have been also referred to inasmuch as the name of the respondent no. 11 has been stated to have been added in the voter list of Valmikinagar legislative assembly, 2015, by committing forgery, Patna High Court CWJC No.8953 of 2018 dt.14-08-2020 12/24 showing his address to be house no. 99, however, the said house no. 99 stands in the name of Nageshwar Kewat and his family members. It is further submitted that the caste certificate issued to the Respondent No. 11 is dated 24.2.2012 showing him to be under the backward category, however, it is intriguing as to how the petitioner had appeared in the BETET, 2011 examination as a backward category candidate, application for which was required to be submitted in between 25.5.2011 to 6.6.2011.
6. The learned Senior Counsel for the petitioner has referred to a Constitution Bench judgment, reported in (2018) 10 SCC 312 (Bir Singh vs. Delhi Jal Board & Others), to contend that person belonging to SC/ST in one State cannot be deemed to be SC/ST person in State of his migration for the purposes of employment or education. In this regard, paragraph no. 38 of the said judgment rendered in the case of Bir Singh (supra) is reproduced herein below:-
38. It is an unquestionable principle of interpretation that interrelated statutory as well as constitutional provisions have to be harmoniously construed and understood so as to avoid making any provision nugatory and redundant. If the list of Scheduled Patna High Court CWJC No.8953 of 2018 dt.14-08-2020 13/24 Castes/Scheduled Tribes in the Presidential Orders under Articles 341/342 is subject to alteration only by laws made by Parliament, operation of the lists of Scheduled Castes and Scheduled Tribes beyond the classes or categories enumerated under the Presidential Order for a particular State/Union Territory by exercise of the enabling power vested by Article 16(4) would have the obvious effect of circumventing the specific constitutional provisions in Articles 341/342. In this regard, it must also be noted that the power under Article 16(4) is not only capable of being exercised by a legislative provision/enactment but also by an Executive Order issued under Article 166 of the Constitution. It will, therefore, be in consonance with the constitutional scheme to understand the enabling provision under Article 16(4) to be available to provide reservation only to the classes or categories of Scheduled Castes/Scheduled Tribes enumerated in the Presidential Orders for a particular Patna High Court CWJC No.8953 of 2018 dt.14-08-2020 14/24 State/Union Territory within the geographical area of that State and not beyond. If in the opinion of a State it is necessary to extend the benefit of reservation to a class/category of Scheduled Castes/Scheduled Tribes beyond those specified in the Lists for that particular State, constitutional discipline would require the State to make its views in the matter prevail with the central authority so as to enable an appropriate parliamentary exercise to be made by an amendment of the Lists of Scheduled Castes/Scheduled Tribes for that particular State. Unilateral action by States on the touchstone of Article 16(4) of the Constitution could be a possible trigger point of constitutional anarchy and therefore must be held to be impermissible under the Constitution.
7. The learned Senior Counsel for the petitioner has also referred to a judgment rendered by the Hon'ble Apex Court in the case of S. Pushpa & Others vs. Sivachanmugavelu & Others, reported in (2005) 3 SCC 1 to contend that a migrant SC/ST person of another State cannot be deemed to be so, Patna High Court CWJC No.8953 of 2018 dt.14-08-2020 15/24 within the meaning of Article 341 and 342 of the Constitution of India, after migration to another State.
8. The learned Senior Counsel for the petitioner has also relied on a judgment rendered by the Hon'ble Apex Court in the case of Chandigarh Administration & Anr. vs. Surinder Kumar & Others, reported in 2004(1) SCC 530 to contend that each and every state has every right to recognize a particular community in a particular manner and the ultimate decision with respect to extending the benefit of reservation has to be left to the respective State.
9. Lastly, the learned Senior Counsel for the petitioner has relied on a judgment, reported in 2009 (2) BLJ (PHC) 160, rendered by a learned Division Bench of this Hon'ble Court in the case of Baleshwar Prasad Rajak vs. The State of Bihar & Ors., paragraph nos. 14 and 15 whereof are reproduced hereinbelow:-
"14. Having appreciated the rival submission, we find substance in the submission of Mr. Singh and the decisions relied on clearly support his contention. The terms of advertisement have been quoted in extenso in the preceding paragraph of the judgment and from its plain reading, it is Patna High Court CWJC No.8953 of 2018 dt.14-08-2020 16/24 evident that the requirement is not of permanent resident but the place of origin. The resident may change but not the origin. Further requirement is that the candidate must be of Scheduled Caste of the State of Bihar. There is no inhibition in migration of a member of the Scheduled Caste from one place to another but when he migrates, it is well settled, he does not and cannot carry any special rights or privileges attributed to him or granted to him in their original State.
15. Admittedly, respondent nos. 4 and 5 were born not in the State of Bihar and, according to their own showing, after their father joined the Bihar Judicial Service in the year 1980, they have started living in the State of Bihar. Intention to settle in the State of Bihar will not make them the members of the Scheduled Caste of the State of Bihar or for that matter their origin cannot be considered to be of this State. In that view of the matter, we are of the opinion that respondent nos. 4 & 5 ought not to have been considered for appointment to the post of Civil Judge (Junior Division) against the Patna High Court CWJC No.8953 of 2018 dt.14-08-2020 17/24 vacancies reserved for the members of the Scheduled Caste."
10. The learned counsel for the Respondent No. 12 i.e. the State Council of Education Research and Training, Patna has submitted, by referring to the counter affidavit filed in the present case, that the brochure of Teachers Eligibility Test-2011 would show that there is no condition, which bars any outsider i.e. those not belonging to the State of Bihar from appearing in the Elementary Teachers Eligibility Test.
11. The learned counsel appearing for the Respondent No. 11 has supported the judgment rendered by the Ld. State Appellate Authority, Patna dated 18.4.2018 and has submitted that the respondent no. 11 had purchased 4 decimal of land on 2.7.2010 in Block Bagaha-II in the District of West Champaran and has constructed a small house there. It is submitted that for the purposes of appearing in the BETET Examination 2011, there is no bar that a person not residing in the State of Bihar cannot appear in the said exam. The learned counsel for the Respondent No. 11 has also referred to the notification dated 24.11.2014 containing the guidelines for appointment of teachers in the primary schools in the State of Bihar for the year, 2014-15, Clause 15 whereof grants exemption from possessing two years Patna High Court CWJC No.8953 of 2018 dt.14-08-2020 18/24 diploma pertaining to primary school training for the purposes of appointment as teachers in Class I-V, as also exemption from possessing the B.Ed Degree for the purposes of being appointed as teachers for the Class VI-VIII. The said exemption is available for a period upto 31.3.2015.
12. The learned counsel for the Respondent No. 11 has further submitted that the respondent no. 11 had appeared as BC category candidate in the BETET examination 2011. It is submitted that there is no ambiguity in the order passed by the learned State Appellate Authority, Patna, hence, the same is required to be upheld.
13. I have heard the learned counsel for the parties and perused the materials on record.
14. First of all coming to the BETET Examination, this Court finds that there is no requirement of a candidate being permanent resident in the State of Bihar for the purposes of appearing in the said examination, as also has been clarified by the Respondent No. 12 by filing a counter affidavit. However, now the question would be as to whether the private respondent no. 11 would be entitled to the benefit of backward category for the purposes of the said BETET Examination, 2011. In the bulletin and brochure published for making an application for Patna High Court CWJC No.8953 of 2018 dt.14-08-2020 19/24 BETET, 2011 examination (Annexure -20 to the writ petition), as per Clause 8, an applicant should be citizen of India and resident of the State of Bihar and further, the same also provides for grant of benefits to the respective reserved categories. This Court further finds that the last date for submitting the application forms was 10.6.2011 and the examination was to be held on 17.7.2011. The private Respondent No. 11 had filed an application for appearing in BETET Examination, 2011 whereupon the examination had taken place on 20.12.2011 and 21.12.2011, a date on which the private respondent no. 11 did not possess the caste certificate showing him to be under the backward category, which was only issued on 24.2.2012, hence, the result of the private respondent no. 11 issued on 14.5.2012 showing him to be under the backward category and showing the private respondent no. 11 to have passed BETET-2011 Examination, is based on an incorrect representation made by the respondent no. 11, regarding him belonging to the backward category.
15. As far as appointment on the post of teacher is concerned, the petitioner and the respondent no. 11 appear to have applied for appointment as Block Teacher before the Block Appointment Committee, Bagaha-I in the year 2012 itself, Patna High Court CWJC No.8953 of 2018 dt.14-08-2020 20/24 whereafter the private respondent no. 11 is said to have been appointed on 19.11.2014.
16. At this juncture, it would be relevant to state that with the coming into force of the Bihar Panchayat Primary Teacher (Appointment and Service Conditions) Rules, 2012, the 2006 Rules and the connected resolutions / orders / notifications have stood repealed. Thus, considering the various provisions of the aforesaid Rules, 2012, it is apparent that Rule 8 postulates appointment of teachers as per the reservation Rules notified by the General Administration Department, Government of Bihar. The said Rules also postulate that the teachers applying for being appointed to class VI to VIII, which is relevant for the present case, should possess BA/B.Sc educational qualification and two years training diploma in primary teachers education or should possess 50% marks in BA/B.Sc and B.Ed qualification or should possess 45% marks in BA/B.Sc with B.Ed qualification which should have been obtained according to the NCTE Regulations, 2002 or should possess other alternative qualifications, with which this Court is not concerned qua the present case. The subsequent guidelines issued by the Government of Bihar dated 22.6.2012, pertaining to the appointment of primary teachers, further clarify that the Patna High Court CWJC No.8953 of 2018 dt.14-08-2020 21/24 application for such appointment can be made by citizen of India.
17. Thus, from a bare reading of the aforesaid rules and regulations, referred to in the preceding paragraphs, it is clear that for the purposes of appointment as primary teachers, apart from possessing the basic educational qualifications such as BA/B.Sc, a candidate is required to possess teachers training certificate (BETET pass certificate in the present case) and should be a citizen of India. This Court is of the opinion that as far as the private respondent no. 11 is concerned, he being a citizen of India and also possessing the BETET-2011 pass certificate, he would definitely be eligible to appear in the selection process for the purposes of appointment as a primary teacher in the Block Bagaha-I, District-West Champaran inasmuch as the eligibility criteria of an applicant being necessarily a resident of the State of Bihar, as prescribed under the Regulations 2006, have been done away with in the Regulations, 2012, however, the difficulty is that the BETET pass certificate of the private respondent no. 11 is apparently not valid since he has obtained the same by misrepresenting his caste status in as much as on the date of filing the application for appearing for the BETET-2011 Examination, i.e. in the year, Patna High Court CWJC No.8953 of 2018 dt.14-08-2020 22/24 2011, the private respondent no. 11 was not in possession of any caste certificate, issued by the competent authority, showing him to be belonging to the backward category. Moreover, it is not necessary that if the respondent no. 11 belonged to the backward category in the State of UP, he would automatically be deemed to be under the backward category in the State of Bihar. Therefore, it is held that the BETET pass certificate of the private respondent no. 11 is illegal, invalid, null and void, having been obtained by misrepresenting his caste status as also by commission of fraud in as much as on the date of filing of application for appearing in the BETET-2011 examination as also on the date of examination, which was held on 20.12.2011 and 21.12.2011, the private respondent no. 11 was admittedly not in possession of any caste certificate, issued by the competent authority of the Government of Bihar, showing him to be belonging to the backward category, since the same was issued only on 24.2.2012.
18. Having regard to the facts and circumstances of the case and for the reasons mentioned hereinabove, I am of the opinion that the appointment of the Respondent No. 11 on the post of Primary Teacher, Block Bagaha-I cannot be sustained in as much as he has obtained BETET-2011 pass certificate illegally Patna High Court CWJC No.8953 of 2018 dt.14-08-2020 23/24 and fraudulently, by misrepresenting the actual facts, hence, since this Court has found the BETET-2011 pass certificate of the private respondent no. 11 to be illegal, null and void, the private respondent no. 11 is held to be not possessing the requisite qualification for the purposes of appointment on the post of Primary Teacher, consequently, it is held that the private respondent no. 11 is not eligible for appointment on the post of primary teacher. Thus the Ld. State Appellate Authority has erred by not considering the aforesaid aspect of the matter while passing the impugned order dated 18.4.2018 in Appeal No. 51 of 2017.
19. In view of the findings arrived at by this Court, herein above in the preceding paragraphs, this Court finds that the order dated 18.4.2018, passed by the learned State Appellate Authority in Appeal No. 51 of 2017 is not sustainable in the eyes of Law, hence is set aside. Consequently, the letter dated 05.05.2018 (Annexure-23 to the writ petition), issued by the Block Development Officer, Bagaha-I, West Champaran contained in Memo No. 1017, whereby and whereunder the appointment of the petitioner herein has been cancelled and the appointment of the private respondent no. 11 has been restored and he has been posted at the Government Middle School, Tola Patna High Court CWJC No.8953 of 2018 dt.14-08-2020 24/24 Parsauni, is also quashed.
20. The writ petition stands allowed.
(Mohit Kumar Shah, J) ajay gupta/-
AFR/NAFR NAFR CAV DATE 19.4.2019 Uploading Date 19.08.2020 Transmission Date NA