IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9936 of 2010 1. NARESH KUMAR SAH, S/O SRI DEVENDRA PRASAD SAH, R/O VILLAGE RAJIGANJ,P.O.- RANIPATRA, P.S. MUFASSIL,RANIPATRA,DISTRICT- PURNEA. Versus 1. THE STATE OF BIHAR. 2. THE PRINCIPAL SECRETARY CUM COMMISSIONER, HUMAN RESOURCES DEVELOPMENT DEPARTMENT,GOVT. OF BIHAR,PATNA. 3. THE DIRECTOR CUM JOINT SECRETARY, PRIMARY EDUCATION, H.R.D. DEPARTMENT, GOVT. OF BIHAR, PATNA. 4. THE MEMBER, DISTRICT TEACHERS APPOINTMENT APPELLATE AUTHORITY, PURNEA, DISTRICT-PURNEA. 5. THE DISTRICT SUPERINTENDENT OF EDUCATION, PURNEA, DISTRICT- PURNEA. 6. THE BLOCK DEVELOPMENT OFFICER,BLOCK - PURNEA EAST, DISTRICT- PURNEA. 7. THE BLOCK EDUCATION EXTENSION OFFICER, BLOCK - PURNEA EAST, DISTRICT- PURNEA. 8. THE MUKHIYA, GRAM PANCHAYAT RAJ BIRPUR, BLOCK - PURNEA EAST, DISTRICT- PURNEA. 9. THE PANCHAYAT,GRAM PANCHAYAT RAJ BIRPUR, BLOCK - PURNEA EAST, DISTRICT- PURNEA. 10. RAJEEV KUMAR, S/O LALITESH GUPTA, R/O NEWTOLA LINE, P.S. PURNEA, DISTRICT- PURNEA. ----------- For the Petitioner : Mr.Rajeev Kumar Singh For the respondents : Mr. Santosh Kr. Singh, S.C. 22 For respondent no. 10 : Dr. Shashi S.Kishore. 2 11.8.2010 Petitioner challenges the order of District Teacher Appointment Appellate Tribunal, Purnea, dated 12.5.2010, as communicated under memo no.708, dated 18.5.2010 as passed in Case no. 504/09 (Annexure 1). The petitioner’s appointment was challenged by respondent no. 10, who has since appeared. Having heard learned counsel for the parties and with their consent this application is being disposed of at this 2 stage itself. Having heard the parties and considered the matter, to me it appears that the fact to be that in the year 2006 steps were taken for recruitment of Panchayat Teacher in the first phase. Admittedly, neither the petitioner nor respondent no. 10 was selected. It is not in dispute that at that time in the year 2006 counseling was held in which the petitioner and respondent no. 10 had already appeared. It so happened that for all Panchayats in the district of Purnea no estimate was taken with regard to requirement of Urdu Teacher. Accordingly no provision was made for recruitment of Maulvi for teaching Urdu, as contemplated in Rule 6 of 2006 Rules. Once recruitment process was over in the year 2006, State became aware of this problem where Maulvies were recruited in un- reserved category seats as General Teachers. That was not in order but keeping in view the recruitment of Urdu Teacher, State took a decision that 441 Maulvies were recruited for the district of Purnea on un-reserved seats as General Teachers would be retained as Urdu Teacher. Thus, the total number of teachers to be recruited was reduced by 441. To compensate this, State Government allocated 441 fresh Teachers to the district and consequently Panchayat . Panchayat was accordingly directed to complete recruitment on these additional seats in accordance with law. This was a seat adjustment in the original recruitment process. They picked up the old panel. One 3 thing changed for the existing Panchayat. As per roster this additional seat that was given now fall to the quota of backward classes to which petitioner and respondent no.10 belong. Accordingly, on 8.6.2009, earlier the recruitment process having ended in the year 2006,the Panchayat Secretary took a decision, who noticed the persons as per merit list to appear for counseling on 22.6.2209. The Committee decided that the merit list be displayed on 10.6.2009 and on 11.6.2009. Notices were sent for fresh counseling to all the persons. Allegedly notices were sent to all the eligible persons , who were 63 in number. Now start the problem. On the day fixed for counseling on 22.6.2009, out of 63 persons allegedly notices were sent under certificate of posting, only 10 turned up. Respondent no. 10 was the first in the merit list undisputedly. Petitioner was 14th in the merit list. Between them there were 13 other persons. Apparently none of 39 persons appeared. The petitioner appeared for counseling and thus by default petitioner became highest rank person and accordingly he was appointed . This appointment was made on 22.6.2009 itself which was the date of counseling. Respondent no.10 having now came to know that he had been left out, filed an appeal before the Appellate Tribunal on 12.5.2010 whereby the Tribunal has held that non selection of respondent no.10 was wrong and selection of petitioner was wrongfully done ignoring the claim of Rajeev Kumar and as such the Tribunal set aside the 4 appointment of the petitioner after hearing the petitioner and directed appointment of Rajeev Kumar (respondent no.10). Learned counsel for the petitioner states that as would be apparent from the order of the Tribunal, Rajeev Kumar did not appear for counseling on the date fixed i.e. 22.6.2009 and as such he could make no grievance. Having considered the matter I am not inclined to interfere in the order of Tribunal. From the facts, noted above, it would be seen that the selection process was over as far back as in 2006 itself because of mistake made in allocating the seats for recruitment of Urdu Teachers, in 2009, Government made available 441 additional seats . On basis of these additional seats , Panchayat Secretary called for fresh counseling though they had conducted counseling in which petitioner and respondent no.10 had already appeared in 2006 itself. This would show that after 2006, more than three years had elapsed, no one was knowing that fresh seats would come in their way. There was no public notice or newspaper notice informing the people at large that the selection was once again opened in respect of backward class seats. Thus, failure of respondent no. 10 to appear cannot be faulted. Further the fact that 39 persons, in order of merit above the petitioner , did not turn up also points to the fact that the notices having been allegedly sent under certificate of posting. The validity of which is quite doubtful because Panchayat 5 Secretary should have know that after three years the people could have changed places, changed residences, not available at their addresses, therefore, it was elementary and for such an important matter ,notices ought to have been sent either by registered post or ought to have been published at least in local news paper, so that people at large to know about it. In this connection I can only refer to the judgment of the Apex Court in the case of Gadakh Yashwantrao Kankarrao –v- Balasaheb Vikhe Patil since reported in (1994) 1 SCC 682 wherein at para 61 what their Lordship says about the notice sent under certificate of posting is as under: “61.Gadakh’s version that he sent the letter dated May 16,1991 (Ex.Q) under certificate of posting is unbelievable. A certificate of posting is easy to procure and does not inspire confidence . Moreover, the circumstances belie his version. With his considerable means and past experience of elections, he would have sent such a letter by registered post to ensure its delivery and create cogent evidence of its dispatch. Moreover, he would not merely send such a letter but have his denial published in newspapers because of its significance during elections. We have no doubt that Gadakh’s conduct belies his belated denial at the trial.” There being no dispute that respondent no. 10 was the first in the merit list and on this plea that he did not turn up in the counseling , which took place three years after the initial closure of process, I am not inclined to interfere in the order of tribunal. The next point urged by learned counsel for the 6 petitioner is that the tribunal in terms of the State Government notification no. 3716, dated 22.3.2008 must approach within thirty days of selection. Here admittedly the complaint having been filed about less than sixty days, after the selection but certainly more than thirty days thereafter ought not have been entertained by the tribunal. I am afraid I cannot accept this submission for the simple reason that in the same very notification it is clearly provided that the tribunal in appropriate case has jurisdiction to entertain the complaint even beyond thirty days . Here, as noted above, hardly no one knew of this recruitment process being resurrected .That being so, mere delay of 2-3 weeks cannot be fatal to the cause of action. With the aforesaid observation and directions, this application is dismissed. singh ( Navaniti Prasad Singh, J.)