IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.1087 of 2011 Subhash Kumar Bhagat, son of Shri Shivbrat Bhagat, resident of village- Sharma Chowk, Simri Bakhtiarpur, Post Office- Simri Bakhtiarpur, District- Saharsa……Petitioner 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 Bakhtiarpur Block, Saharsa. 4. The Mukhiya, Gram Panchayat Bakhtiarpur (South), Post Office- Simri Bakhtiarpur, District- Saharsa. 5. The Panchayat Sachiva, Gram Panchayat Bakhtiarpur (south), Post Office- Simri Bakhtiarpur, District- Saharsa. 6. Vijay Kumar, son of Sri Lakhan Sah, resident of village- Main Road, Simri Bakhtiarpur, Post Office- Simri Bakhtiarpur, District- Saharsa. 7. Anil Kumar, son of Shri Chhedi Sah, resident of village- Kanu Tola, Simri Bakhtiarpur, Post Office- Simri Bakhtiarpur, District- Saharsa. …………. Respondents ---------------------------------- with Civil Writ Jurisdiction Case No.1714 of 2011 Manoj Kumar Sharma, son of Shri Ramadhin Prasadd Sharma, resident of village- Saini Tola, Post Office- Simri Bakhtiarpur, Police Station- Bakhtiarpur, District- Saharsa…. Petitioner Versus 1. The Stat 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 Bakhtiarpur Block, Saharsa. 4. The Mukhiya, Gram Panchayat Bakhtiarpur (South), Post Office- Simri Bakhtiarpur, District- Saharsa. 5. The Panchayat Sachiva, Gram Panchayat Bakhtiarpur (South), Post Office-Simri Bakhtiarpur, District-Saharsa. 6. Vijay Kumar, son of Shri Lakhan Sah, resident of village- Main Road, Simri Bakhtiarpur, Post Office- Simri Bakhtiarpur, District- Saharsa. 7. Anil Kumar, son of Shri Chhedi Sah, resident of village- Kanu Tola, Simri Bakhtiarpur, Post Office- Simri 2 Bakhtiarpur, District- Saharsa. …………….. Respondents. ---------------------------------- For the petitioners: Mr. Siya Ram Shahi, Advocate Mr. S.M. Ashraf, Advocate ( In both cases ) For Respondent: Mr. Ashutosh Kumar, Advocate Nos. 6 and 7 Mr. C.M. Jha, Advocate ( In both cases ) For the State: Dr. A.K.Upadhyaya, A.C. (In CWJC No.1087/2011 Mr. Ajay, S.C. XI ( In CWJC No.1714/2011 ------------- 5. 20.12.2011 Heard learned counsel for the petitioners and learned counsels for the State and for respondent Nos.6 and 7 in both the cases. Both the writ applications raise a challenge to the order dated 22.12.2010 passed by the District Teachers Employment Appellate Authority, Saharsa and accordingly, they have been heard together and are being disposed of by this common order. Briefly stated, the facts of the case are that the petitioners had applied for the post of Panchayat Teacher in Gram Panchayat, Simri Bakhtiarpur (South) and so also the respondent Nos. 6 and 7. The petitioner, Subhash Kumar Bhagat was at serial No.66 of the merit list 3 whereas the petitioner Manoj Kumar Sharma was at serial No.270. The respondent No.6 Vijay Kumar who belongs to the same backward class category as Subhash Kumar Bhagat was at serial No.113 while respondent No.7 Anil Kumar who belongs to the E.B.C. category like the petitioner, Manoj Kumar Sharma was at serial No.567. The admitted position is that neither the petitioners nor the private respondents were called for the first counseling. Subsequently on the post not being filled up, the notice for second counseling to be held on 3.2.2007 was sent under Certificate of Posting. The petitioners claim that they did not receive the said notices and for the said reason did not appear at the counseling. Subsequently notices for third counseling to be held on 19th and 20th March, 2007 were issued and respondent Nos. 6 and 7 having appeared in the counseling they were selected and appointed as Panchayat Teachers in their respective categories. On learning about the appointments of respondent Nos. 6 and 7, the petitioners approached the Block Development Officer, who was then the competent authority under the Bihar Panchayat Primary Teachers 4 (Appointment and Service Conditions) Rules, 2006 on 17.12.2007 and 25.12.2007. The B.D.O. passed an order dated 28.1.2008 holding that the petitioners had wrongly not been appointed although they had higher marks and cancelled the appointments of the respondents and directed the petitioners to be appointed in their place. Aggrieved by the said orders, respondent Nos. 6 and 7 filed C.W.J.C. No.10632/2008. The petitioners also filed C.W.J.C. No.9987/2009 on the ground that despite the order of the B.D.O., they were not being permitted to join. The High Court vide its order dated 8.7. 2010 remitted the matter to the Appellate Authority to pass orders after hearing the parties. Thereafter the impugned order dated 22.12.2010 has been passed. Learned counsel for the petitioners submits that the order of the Appellate Authority cannot be permitted to stand as it has not correctly understood the legal implication of the notice being sent Under Certificating of Posting. It is submitted by him that such Certificate of Posting can be easily managed and the service of notice under it cannot be presumed under the law and since the petitioners deny the service of notices 5 for second counseling sent Under Certificate of Posting, it is for the respondents to prove that the notices were at least received by them. In support of the aforesaid proposition, learned counsel for the petitioners relies upon a decision of the Supreme Court in the case of Gadakh Yashawantrao Kankarrao vs. E.V. Alias Balasaheb Vikhe patil and others: AIR 1994 S.C. 678, in paragraph No.59 of which it has been held as follows: “59. The so-called “reliable information” mentioned by Gadakh has not been disclosed by specifying the name of any one supposed to have given that information or by examining him. It is also of significance that Gadakh alleges having sent a letter dated 16th May, 1991 under certificate of posting to the Maharashtra Times Office disputing correctness of the news-item (Exh.90). The receipt of that letter by the addressee is denied and the likelihood of its 6 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. Expense being immaterial in that election for both sides, it is extremely unlikely that Gadakh would sent such a letter under certificate of posting and not by registered post. In view of the narrow controversy on this point, the criticism levelled against the testimony of Girish Kulkarni is of no practical significance and his version about the interview to the extent it was reported in the news-item (Exh.90) must be accepted as duly proved. The only significant question on this point is whether Gadakh did not believe this allegation to be true when he made it so that this further requirement to constitute the corrupt practice under Section 123 (4) is made out.”. 7 Learned counsel for the petitioners also relies upon the decision of a learned single Judge of this Court in the case of Chitranjan Kumar Singh v. The State of Bihar and others.: 2010 (4) PLJR 183, in paragraph No.6 of which practically under similar factual matrix, it has been held as follows:- “6. Obviously, the plea of U.P.C. was fraudulent. No letters can be delivered within 24 hours, it was only applied to deny legitimate candidates their appointment and give unfair advantage to the petitioners. Learned counsel for respondent Nos. 6 and 7 in both the cases, on the other hand, submits that although the law has been laid down by this Court on the point of issue of notices Under Certificate of Posting but the matter requires to be looked into at the various angles. It is submitted by him that the private respondents were issued appointment letters in the month of March, 2007 itself, i.e., on 2.3.2007 and joined on their posts on 30.3.2007, 8 but the petitioners slept over the matter for nearly eight months before approaching the B.D.O., who was the then Appellate Authority. The said delay by the petitioners in approaching the Appellate Authority clearly goes to show that they were not interested in the appointment at the relevant time since they are both residents of the same locality and it can be presumed that they were aware of the appointments of respondent Nos. 6 and 7. Such delay according to law is fatal in the matter and the respondents having joined and worked on the post of Panchayat Teacher for a substantial period of time, their appointments should not be disturbed. It is further submitted by learned counsel for the private respondents that they cannot be held guilty in any manner, rather it is the petitioners, who have been manipulating and despite the matter being pending before this Court and the Appellate Authority, they have obtained an order of the Block Development Officer dated 4.6.2010 for their appointments as Panchayat Teacher, although the B.D.O. has ceased to have any authority in the matter after the rules were amended in the month of August, 2008 with immediate effect. 9 Learned Standing Counsel No.11 appearing for the State in the second writ petition, on the other hand, submits that the service of notices Under Certificate of Posting cannot always be presumed as not having been received. In support of the same, he relies upon a decision of the Supreme Court in the case of Samittri Devi and another.vs. Sampuran Singh and another: (2011) 3 S.C.C. 556, in paragraph Nos. 29 and 30 of which it has been held as follows:- “29. Thus, it will all depend on the facts of each case whether the presumption of service of a notice sent under postal certificate should be drawn. It is true that as observed by the Privy Council in its above referred judgment, the presumption would apply with greater force to letters which are sent by registered post, yet, when facts so justify, such a presumption is expected to be drawn even in the case of a letter sent under postal certificate. 10 30. Having seen the factual and the legal position, we may note that in the present case it has already been established that the appellant had purchased the property out of her own funds. Therefore, it could certainly be expected that when she came to know about the clandestine sale of her property to Respondent 1, she would sent him a notice, which she sent on 8.4.1987. As noted earlier, the notice is sent from one house on the College Road to another house on the same road in the city of Pathankot. The agreement of purchase is signed by Defendant 3 five days thereafter i.e. on 13.4.1987. The appellant had produced a copy of the notice along with postal certificate in evidence. There was no allegation that the postal certificate was procured. In the circumstances, it could certainly be presumed that the notice was duly 11 served on Respondent 1 before 13.4.1987. The High Court, therefore, erred in interfering in the finding rendered by the Additional District Judge that Respondent 1 did receive the notice and, therefore, was not a bona fide purchaser for value without a notice.” I have considered the rival submissions of learned counsel for the parties. So far as the present matter is concerned, the petitioners have come up with a plea that they did not receive the notice of second counseling sent to them and only upon learning about the appointments of respondent Nos. 6 and 7, they approached the B.D.O. to pass an order in their favour. Nothing has been brought on the record to show that the said stand of the petitioners is contrary to the real facts and that they had actual knowledge about the second counseling but they deliberately did not attend the said counseling. Further nothing has been brought on the record to show that the petitioners had knowledge about 12 the appointments of respondent Nos. 6 and 7, yet they delayed in approaching the B.D.O. So far as the appointments on these posts are concerned, 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 sent 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 Court cannot easily presume that notices sent under Certificate of Posting have been received. Any such presumption can only arise with 13 respect to notices sent under Registered Post. This Court, therefore, finds that the petitioners are justified in relying upon the decision of the Apex Court in the case of Gadakh Yashwantrao Kankarrao and the decision of this Court in the case of Chitranjan Kumar Singh (supra). So far as the reliance placed by learned counsel for the State upon the case of Samittri Devi (supra), is concerned, the same was on entirely different facts related to notices sent by a person, who was owner of the property to another person and thus it was held by the Court in the facts of the said case that there was no reason why the owner of the property would not send such a notice. Further it was found that as a matter of fact there was pleading of the parties of having sent the notice and the relevant materials/documents were produced but there was no denial of the same and there was no allegation that the postal certificate was procured . Such is not the position in the present matter. Thus on a consideration of the entire facts and circumstances of the case, this Court is of the view that the impugned order dated 22.12.2010 of the District 14 Teachers Employment Appellate Authority, is fit to be set aside and it is, accordingly, set aside. The appointments of respondent Nos. 6 and 7 are cancelled. It is, however, clarified that the respondent Nos. 6 and 7 shall be entitled to payment of their salary/claim for the period for which they have actually worked. The respondent authorities are directed to take the counseling of the petitioners in both the cases and in case they are found fit for appointment in accordance with law then issue the appointment letters to them. Let the same be done within a period of two months from the date of receipt/ production of a copy of this order. Both the writ applications are, accordingly, allowed. VPS ( Ramesh Kumar Datta, J.)