IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11162 of 2009 1. Kumari Sudesh Jha, W/o-Mr. Anil Kumar Thakur, R/o-Village-Akhtiyarpur, P.O.-Bhanborha, District-Vaishali. 2. Sandhya Kumari, D/o-Ramanand Rai, R/o-Village-Parmanandpur Lal, P.O.- Ghitrauli, District-Vaishali. 3. Rajeev Kumar, Shubhnath Singh, R/o-Village-Sangat, P.O.-Rasulpur Korigaon, District-Vaishali. 4. Umesh Kumar Suman, S/o-Nebaji Rai, R/o-Village- Parmanandpur Lal, P.O.- Ghitrauli, District-Vaishali. 5. Chandeshwar Prasad Yadav, S/o-Sukhdeo Rai, R/o-Village-Gauriharman, P.O.-Khalik Nagar, Gaurihar, District-Muzaffarpur. 6. Ram Ekbal Prasad, S/o-Rampratap Rai, R/o-Village & P.O.-Simarwara, District-Vaishali. 7. Birchandra Prasad Singh, S/o-Rammilan Prasad Singh, R/o-Village+ P.O.- Pirori, P.S.-Garaul, District-Vaishali. 8. Harish Chandra Prasad Singh, S/o-Ram Ashish Singh, R/o-Village+P.O.- Mansoorpurhalaiya, District-Vaishali, P.S.-Garaul. 9. Arjun Prasad, Son of Jahuri Rai, R/o-Village+P.O.-Jabaj, District-Vaishali. 10. Ram Nath Gupta, S/o-Moujelal Sah, R/o-Village-Paharpur, P.O.-Karhatiya Bujurg, District-Vaishali. -Petitioners. VERSUS 1. The State of Bihar. 2. The District Education Officer, Vaishali. 3. The Sub-Divisional Education Officer, Hazipur, District-Vaishali. 4. The Block Education Extension Officer, Mahua, District-Vaishali. 5. The Block Employment Unit for Block Teachers, Mahua through its Secretary at P.O.&P.S.-Mahua, District-Vaishali. 6. Ratnesh Kumar, Son of Sri Jayanand Sharma, resident of village & P.O. - Bhathahi, via-Jandaha, P.S.-Jandaha, District-Vaishali at Hazipur. -Respondents. ----------- For the Petitioners : Mr. Rajendra Prasad Singh, Sr. Adv. Mr. Rajeev Kumar Singh, Adv. Mr. Nawal Kishore Singh, Adv. For the Interveners : Mr. Tej Bahadur Singh, Sr. Adv. Mr. Brajesh Kumar, Adv. Mr. Gyan Shanker, Adv. For the State : Mr. Anant Kumar, AC to SC-XI. ------------- 08 18.08.2010 Intervention application being I.A. No.7654 of 2009 is allowed. The petitioners have already filed a counter affidavit to the intervention application. As the pleadings are complete, with - 2 - consent of parties the writ application has been heard for final disposal at this stage itself. Petitioners by this writ application challenge the order passed by the District Teachers Appointment Appellate Authority, Vaishali dated 07.07.2009, as communicated under Memo No.876 dated 10.07.2009, as contained in Annexure-1 to the writ application. By the aforesaid order, the Tribunal having found grave irregularities in the selection process of Prakhand Teachers, has set aside the selection process and ordered the same to be done afresh after proper notice to all parties. Petitioners’ grievance is that the order is erroneous on the facts and cannot be sustained as it has been passed without notice to them. Petitioners alleged that they were duly selected for appointment after due counselling. To the contrary, the interveners point out that the entire selection process was sham and after due enquiry the Tribunal correctly held so. They submit that the challenge before the Tribunal being not to the selection of any individual but to the selection process itself, petitioners were not required to be heard, in any case having not heard, the petitioners would not render the order void as officials connected with selection process having been heard and all records examined by the Tribunal. Their further submission would be that in view of the facts the selection process itself being vitiated, even if the order of the Tribunal is to be set aside, the selection process should also be set aside or the order of the Tribunal being not interfered with - 3 - because that would give validity to a wrong selection process, which this Court should avoid. The facts lie in a narrow compass. It appears that there were vacancy of about 128 posts of Block Teachers who were to be recruited under the provisions of the Bihar Nagar Nikaya Prarambhik Shikshak (Niyojan aewm Seva Sart) Niaymawali, 2006 for that the State Government published a programme and guideline on 25.08.2008. It appears that about 24739 applications were received. The schedule programme could not be adhered to because of floods and other reasons in the area and was postponed. It is alleged that on 30.12.2008, as per the decision of the Selection Committee, a final merit list of 1149 candidates was published on the notice board. This was done by providing cut off marks to shorten the list of candidates. It is alleged that on 15.01.2009 all the merit list candidates were issued call letters under certificate of posting calling them to appear in counselling on 24.01.2009 and on 22.01.2009, a notice in paper publication of this was also issued mentioning that counselling would take place as per the merit list on 24.01.2009. It is alleged that as the number of candidates who were to appear for counseling was large, which is a process of verification of original certificates and submitting consent for appointment, the Selection Committee had set up four separate tables. Three of the tables had been assigned to take down in privately arranged registers the name of candidates appearing for - 4 - counselling and their particulars and fourth table was fixed for taking signature of candidates who appeared for counselling as proof of the fact. This fourth register was the register duly prescribed and supplied by the Government. It is not in dispute that as against 1149 candidates who were short listed in the merit list and to whom allegedly call letters were issued under certificate of posting only 217 candidates appeared who first got their documents verified and their entries were made in either of the three privately maintained registers and then allegedly put their signatures on the fourth official register. It is alleged that this process being over on 24.01.2009, 110 candidates were then selected out of which ultimately on 22.02.2009, 102 candidates give their consent letters accepting appointment. Having given their consent letters including the petitioners they are waiting for their appointment letters. It is not disputed that formal appointments letters have not been issued to the petitioners or the selected candidates. In the meantime, it is alleged that one Ratnesh Kumar, without impleading the petitioners or the selected candidates who were waiting for appointment letters to be issued, filed an application before the District Teachers Appointment Appellate Tribunal challenging the selection process. Apparently, this statement though correct is not fully correct, inasmuch as, brought on record by the interveners that there were large number of about 38 other applications also filed challenging the selection process - 5 - before the Tribunal. The Tribunal directed for enquiries to be conducted and called for the records. Enquiry reports revealed that the selection process appeared to be vitiated as the relevant registers were not being produced for inspection inspite of repeated requests. These facts have been noted in the order of the Tribunal. It may be noted here that the allegation of the interveners and objectors to the selection process, inter alia, was that they had appeared for the counselling and they were made to sign on some privately maintained registers. There were several registers which were opened on that day but ultimately they found that they were shown absent from counselling by manipulating the registers. The Tribunal found it curious as against 1149 candidates noticed only 217 candidates turned up for counselling and the complaining candidates who had higher marks as per the merit list itself were shown not turned up for counselling. Upon these facts, the Tribunal set aside the selection process and directed that the merit list should be republished with adequate notice to all persons and under proper supervision selection process should be taken up to ensure transparency and confidence in the selection process. When the matter was taken up before this Court official respondents produced the four alleged registers which suddenly surfaced. As noted above, these registers were allegedly prepared at the time of counselling itself on 24.01.2009. This Court has perused the registers. Each of the register is in pristine condition - 6 - and clearly indicates that they were prepared at leisure upon due deliberation. This Court says so because in neither of the three registers which deals with 217 candidates who have said to have decented on a single day of counselling there is not a single overwriting or correction in any particular whatsoever. Each register is drawn up in an extremely unnatural and unusual neat format handwritten, which is not possible in such a short time with such large number of persons. All signatures and entries are too neatly made which appears unnatural. It clearly demonstrates that they were prepared subsequently to justify the final selection, even to this Court not only they do not inspire confidence to the contrary, it clearly discloses otherwise. To this Court, the first thing that occurs is that clearly the selection process was a sham and everything had been fixed, Court cannot be expected to sanctify the same. The Tribunal had rightly discarded the whole process. What is of importance now is that if the order of the Tribunal is set aside the effect would be that the selection process which was a sham would get legal sanctity. This cannot be permitted. In such situation, Courts have advisedly resorted to two alternatives, either it has set aside both events, that would be in the present case, the selection process as well as the order of the Tribunal or would not interfere with the order of the Tribunal and thus force the parties to go in for the selection process in a lawful manner once again. No one can be expected to object to facing a - 7 - lawful selection process as against the sham process applied earlier. In my view, this proposition and course of events is sanctified by settled decision of Division Bench of this Court in the case of Naya Dawakhana Vs. The State of Bihar and ors. since reported in 1990(2) PLJR 616 wherein this is what the Court has noted in paragraph-54, which is quoted hereunder:- “The ratio of the aforementioned decisions is neither in doubt nor in dispute. In the aforementioned decisions, it has been held by this Court as well as by the Supreme Court that the issuance of writ of certiorari is a discretionary remedy. Such a writ may not be issued if substantial justice has been done to the parties or if in the event upon quashing of one illegal order it is found that the same would give rise to another illegality, the High Court in its discretion may quash both the orders.” In view of the aforesaid, whether I quash both, the order of the Tribunal and the selection process or I refuse to interfere with the order of the Tribunal, which I do, the result would be the same. The selection process gets obliterated and would have to be done all over again, I would, accordingly, order. Mr. Rajendra Prasad Singh, learned Senior Counsel - 8 - appearing in support of the writ petition submitted that the Tribunal could not have proceeded to decide the matter without notice to the petitioners and their like and, having decided the matter without notice to the petitioners and their like, the order would be void ab initio, being passed in violation of principles of natural justice. In view of the order that I have passed above, it is unnecessary to decide this issue but as this issue was vehemently argued I would like to point out that firstly upon their own admission petitioners have not yet been issued appointment letters for which they are only waiting and expecting. Thus, the Tribunal interfered in the selection process immediately, petitioners cannot be said to have crystallized their right in any manner to claim herein, as a matter of fact. That part, in view of this Court, one can refer to the decision of the Apex Court in the case of the Bihar School Examination Board Vs. Subhas Chandra Sinha & Ors. since reported in AIR 1970 SC 1269 therein the examination process at a particular centre was cancelled as a whole. This Court upon a writ application filed by some of the examinees held that the examinees must be heard before such a decision adverse to their interest was taken. On appeal the Apex Court reversed the finding and held that where the examination was found to be vitiated by adoption of unfair means on a mass scale it would be wrong to insist that the Board must hold a detailed enquiry in the matter and examine each individual case to satisfy itself as to - 9 - which of the candidates had not adopted unfair means. It was not as to any individual who was singled out but the whole process at a centre was held to be vitiated. Court held that a contrary view taken by the High Court would only encourage indiscipline if not perjury. To my mind, the ratio is that where the challenge is to the process of selection then individuals who got allegedly selected and were waiting for selection letters are not necessary parties and it would suffice if the records were examined of the selection process. Principles of natural justice as is said are not an unruly horse or a bull in the china shop. There are exceptions to its applicability and this is one of them. Before concluding the matter for the sake of record, I may notice that immediately on coming to know of the mala fide selection process some of the candidates had filed writ petition before this Court challenging the selection process. This Court had also stayed the process but as subsequently the Tribunal had set aside the selection process, the grievance of the petitioners having been met, the writ petition was disposed of as infructuous, giving liberty to the writ petitioners to intervene in the present writ application, which challenged the order of the Tribunal. In view of the aforesaid facts, this Court does not find it to be a fit case in which writ of certiorari is to be issued setting aside the order of the Tribunal. The writ application is, accordingly, dismissed. It is, however, to be noted that as the selection process has been set at naught the concerned respondents - 10 - are directed to take up the matter once again from the stage of merit list publication of 1149 candidates in a manner in which the people are duly and properly noticed and the selection process is transparent and inspires confidence, as it is a matter of public employment. Endeavour must be made to reinitiate and complete the same within a period not later than eight weeks. Trivedi (Navaniti Prasad Singh, J.)