IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18202 of 2009 ====================================================== 1. Subodh Kumar S/O Sri Satrughan Roy R/O At+P.O- Barsauni, P.S- Sadar, Distt- Purnea 2. Md. Ashfaque Alam S/O Md. Siddique R/O Vill- Sikandarpur, P.O- Mahankunda, P.S- Sadar, Distt- Purnea .... .... Petitioners. Versus 1. The State of Bihar Through The Principal Secretary, Human Resources Development Department, Govt.of Bihar, Patna 2. The Director, Primary Education, H.R.D. Department, Govt.Of Bihar, Purnea 3. The Member, District Teacher Appointment Appellate, Authority, Purnea 4. The District Superintendent Of Education, Purnea, Distt- Purnea 5. The Block Development Education, Purnea East, Distt- Purnea 6. The Block Education Extension Officer, Block Purnea East, Distt- Purnea 7. The Mukhiya Gram Panchayat Raj Sikandarpur, Sadar East, Distt- Purnea, Distt- Purnea 8. The Panchayat Secretary, Gram Panchayat Raj Sikandarpur, Sadar, East Distt- Purnea 9. Matloob Alam S/O Abdul Jabbar, R/O Vill- Kaymi, P.O-Mathour, Via+P.S-Kasba, Distt- Purnea- 854330 10. Mansoor Alam S/O Late Haji Abdul Jabbar, R/O Vill- Damka, P.O- Mohankunda Prakhand- Purnea, East, Distt- Purnea-854326 .... .... Respondents. ====================================================== Appearance : For the Petitioner/s : Mr. Rajendra Pd. Singh, Sr. Advocate Mr. Rajeev Kumar Singh, Advocate Mr. Mrityunjay Kumar, Advocate Mr. Alok Kumar Singh, Advocate Mr. Mukesh Kumar Singh, Advocate For the State : Mr. Avinash Kumar, AC to SC XI For Respondents 9 & 10 Mr. Md.Farooque, Advocate Mr. Anisur Rahman, Advocate ====================================================== CORAM: HONOURABLE JUSTICE SMT. MRIDULA MISHRA ORAL ORDER (Per: HONOURABLE JUSTICE SMT. MRIDULA MISHRA) 05/ 29-08-2011 Heard counsel for the petitioners, the State and Patna High Court CWJC No.18202 of 2009 (5) dt.29-08-2011 2 / 6 2 the Respondents 9 and 10. Petitioner’s prayer is for quashing of order dated 11.11.2009 contained in Memo No. 1161 passed by the District Teachers Appointment Appellate Tribunal, Purnea, whereby seven appeals were disposed of by a common order. The appellate authority cancelled appointments of petitioners Subodh Kumar and Md. Ashfaque Alam on the post of Panchayat teacher with immediate effect, and directed to appoint Respondent No. 9 Matloob Alam and Respondent No. 10 Mansoor Alam in place of petitioners. The Appellate Authority also directed for recovery of entire honorarium paid to the petitioners in lieu of their irregular appointment and working on the post of Panchyat teacher. The facts of the case as revealed is that in Sikandarpur Gram Panchayat 8 posts of Panchayat teachers were going to be filled, out of that 5 posts were in general category and 3 posts for Urdu teachers. However, when the appointment was made 5 Urdu teachers and only 3 general teachers were appointed. Noticing this error, 2 additional teachers having Moulvi degree were terminated but their termination order was Patna High Court CWJC No.18202 of 2009 (5) dt.29-08-2011 3 / 6 3 recalled by the Human Resources Development Department and teachers with Moulvi degree were retained. The H.R.D. Department decided to sanction two additional posts in Gram Panchayat Sikandarpur in the general category. The D.S.E., Purnea vide letter dated 26.10.2008 directed the Block Education Extension Officer to initiate fresh process for appointment of teachers against two newly sanctioned posts in general category, on the basis of same merit list prepared in the year 2006. In compliance of this order, notices were issued under certificate of posting to 20 persons, whose names were at the top of the merit list, which included the names of Respondent Nos. 9 and 10. Despite issuance of notice to 20 applicants no one appeared to participate in the counselling fixed on 26.12.2008. The D.S.E., Purnea issued a direction to fill up two newly sanctioned posts in the general category within one week, as the second phase of appointment was scheduled to start. The D.S.E. also directed to issue notices to all such empanelled candidates in the merit list, having more than 45% of marks. In compliance of this direction 125 persons were noticed. Petitioners’ case is that receiving notice, they Patna High Court CWJC No.18202 of 2009 (5) dt.29-08-2011 4 / 6 4 appeared for counselling and selected, even though they were placed much below Respondents 9 and 10 in merit list. Only reason for their selection and appointment, was non-appearance of any other candidate except these two petitioners. Petitioners’ appointment was challenged by seven persons including Respondents 9 and 10 before the Appellate Tribunal and their appointment was set aside on this presumption that so called notices issued by the Selection Committee, initially to 20 empanelled candidates and subsequently to 125 candidates, had never been dispatched. Notices had only been sent to petitioners, so that they can only participate in the counselling and be selected for the post. The Appellate Tribunal, recorded this finding, even though there was no evidence before it, in support of this presumption. On perusal of the appellate order, I find substance in the allegation made by the petitioners. In order to reach this conclusion, Appellate Tribunal should have issued notices to the post Master, and called for the dispatch register, to verify and find out as to whether such letters had been sent to the empanelled candidates in Patna High Court CWJC No.18202 of 2009 (5) dt.29-08-2011 5 / 6 5 the merit list. Since, finding has been recorded, only on the basis of presumption, there being no substantive evidence to support, it cannot sustain. Respondents 9 and 10 could have some reason for challenging petitioners’ appointment if no notice would have been issued to them when only 20 persons in the merit list were noticed. There is no evidence to show that all 20 empanelled candidates on the top of merit list were not noticed, as such they could not respond, later on 125 persons were noticed, but only two petitioners responded and were selected on account of their participation in the counselling. I find that petitioners were appointed following all due procedure, as such there was no need for cancelling their appointment by the appellate authority. The impugned order, being based on presumption, is fit to be quashed and accordingly, quashed. Both petitioners are still continuing on their post, they will continue and be entitled for salary and consequential benefits. Petitioners have filed Interlocutory Application No. 790 of 2010 as during the pendency of writ application, consequential orders had been issued by the Patna High Court CWJC No.18202 of 2009 (5) dt.29-08-2011 6 / 6 6 Panchayat Secretary for compliance of the order passed by the appellate authority. These two consequential orders annexed as Annexure - I/1 and I/2 dated 14.12.2009 and 13.1.2010 are also quashed. DKS/ (Mridula Mishra, J)