IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.14622 of 2009 Kumari Lalmani, W/O Shri Bibhuti Kumar Singh, R/O Vill- Sanhauli, P.S & Distt- Khagaria. ----------- Petitioner Versus 1. The State of Bihar. 2. The Principal Secretary, Human Resources Department, Bihar, Patna. 3. The District Magistrate, Khagaria. 4. The District Superintendent of Education, Khagaria. 5. The Block Education Area Officer, Khagaria Block, Khagaria. 6. The Member District Education Employment Appellate Authority, Khagaria. 7. The Mukhiya, Gram Panchayat, Olapur, Gangaur, Khagaria. 8. The Panchayat Secretary, Gram Panchayat Olapur, Gangaur, Distt-Khagaria. 9. Shushma Dayal, Panchayat Teacher, Primary School, Chakkipar, Distt- Khagaria. 10. Charanjeet Kumar Singh, S/o late Arun Kr. Singh, Resident of Village Dlapur Gangeur, P.S.+Dist. Khagaria. ---------- Respondents ------------ 9 01.12.2011 Heard learned counsel for the parties. Assailing the order passed by the District Teachers Appellate Authority, Khagaria (hereinafter referred to as the Authority) dated 8.8.2009, learned counsel for the petitioner has submitted that the most crucial issue as raised specifically by the petitioner in her complaint petition dated 4.2.2009, namely, appointment of a male teacher against a post exclusively reserved for a female category being wholly impermissible has not been examined by the Authority which has given no findings in this regard. He has further submitted that the 2 name of the respondent no.9 did not find place in the merit list and yet she was appointed on the said post but even this aspect has not at all been appreciated by the Authority which has non-suited the petitioner only on the ground that she had not submitted her consent. He has, accordingly, submitted that either the appointment of respondent no.9 or respondent no.10 should be cancelled for making a place for the petitioner who has admittedly secured higher marks to both of them. Mr. Rajendra Prasad Singh, learned senior counsel appearing for the respondent no.10, would however submit that neither the respondent no.10 was made party before the Authority nor his appointment was ever assailed by the petitioner before the Authority and, therefore, after the respondent no.10 has continued in service for a period of four years, he cannot be disturbed by the petitioner who has infact erroneously, if not surreptitiously, impleaded the respondent no.10 as a party to this writ application. Mr. Vivekanand Singh, learned counsel 3 for the respondent no.9, on the other hand, has submitted that it is factually incorrect to say that the name of the respondent no.9 does not find place in the panel and that if this aspect of the matter is gone into, it would be made clear that the respondent no.9 was well within the zone of selection and could have been very well appointed against a post earmarked for a lady teacher. Counsel for the State has supported the plea taken by him in the counter affidavit which in effect would make the order of the Authority vulnerable. This Court had expected that the constitution of such an Authority with regard to large number of disputes arising out of the post of Panchayat Shikshak, Prakhand Shikshak and other teachers under different Rules of 2006 will have at least some sort of finality in determination of fact in order to enable this Court to exercise the power of judicial review within the limited parameters of Article 226 of the Constitution of India. This Court is not expected to be a fact appreciating forum specially when the Legislature and/or the policy makers have 4 constituted tribunal/authority for examining the facts while taking its decision on the complaint filed by the aggrieved person. In the present case, under Rule 18 of the Bihar Panchayat Teachers Appointment Rules, 2006, all matters relating to service condition of a Panchayat Teacher is capable of being looked into, examined and decided by the District Teachers Appellate Authority and the authority cannot avoid its duty by adopting a wholly perfunctory approach. In the present case, in paragraph no.6 of the complaint filed by the petitioner, it was exclusively mentioned that:- ^^6- efgykvksa ds fy, vkjf{kr in ij iq:’k dk fu;kstu djuk%& dk;kZy;] fcgkj f”k{kk ifj;kstuk] [kxfM+;k }kjk vuqeksfnr jksLVj esa xzke iapk;r jkt] vksykiqj xaxkSj dks dqy X;kjg fjDr in vkoafVr fd;k x;k FkkA ftlds fo:) vf/kdre ikap iq:’k vH;fFkZ;ksa dks fu;ksftr fd;k tk ldrk FkkA fdUrq] fu;kstu bdkbZ }kjk lkr iq:’kksa dks fu;kftr dj fn;k x;k] ftlesa ls ,d dk;Zjr f”k{kd latho dqekj dk uke inLFkkiuk fooj.kh esa ntZ gh ugha gSA bl izdkj inLFkkiuk fooj.kh ds vuqlkj ,d efgyk dksfV ds vkjf{kr in ij Jh pj.kthr dqekj ¼iq:’k½ dks fu;ksftr dk fn;k x;k gS vkSj nqljk iq:’k f”k{kd Jh latho dqekj dks fjtoZ f”k{kd ds :i esa j[k fy;k x;k gSA “kk;n fdlh f”k{kd ds ej.kksijkUr txg fey tk;? D;ksafd ;gh iapk;r lfpo xzke iapk;r] csyk flejh esa lu~ 2005 esa Lohd`r fjDr in 6 ds fo:) lkr f”k{kk fe=ksa dks fu;ksftr dj fy;k gS vkSj 5 vc 2008 esa tc muesa ls ,d f”k{kd dks mi”kkL=h fMxzh gksus ds dkj.k “kk;n gVk;k x;k gS rks ml lkroka vfrfjDr f”k{kd dks ml in ij fo|ky; esa ;ksxnku djk fn;k gSA bl iapk;r lfpo ls dqN Hkh laHko gSA ¼i`’B la[;k& 18 ,oa 2½ The said specific assertion of the petitioner also gets support from the counter affidavit filed by the District Education Officer wherein he has stated as follows:- “7. That according to the roster this Panchayat have three seats for unreserved for female, in which two female untrained teacher are functioning. But one male teacher had been appointed against rest one female seats. However, it is important to mention here that the name of the respondent no.9 does not find place in the original merit list. The name of the petitioner finds place of serial number of merit list at 67 and carries 65.55%.” It would thus be clear that the Authority had to record findings and even if the case of the respondent no.10 was to be taken into consideration, the Authority had to issue notice to the respondent no.10 as also afford him an opportunity to justify his appointment against a post exclusively meant for a lady teacher. That procedure, however, was not gone into and the Authority has 6 adopted a very narrow and technical approach by looking into the details of the date of filing of complaint by the petitioner. Such approach should have been avoided by the Authority keeping in view that there was an amendment in Rule 18 in the year 2009 and the Authority became an alternative statutory forum for ventilation of all sort of complaint relating to service condition on the post of Panchayat Teacher. As a matter of fact, when the Authority in the impugned order has also not specifically recorded a finding as with regard to non-inclusion or inclusion of the name of the respondent no.9 in the merit list about which also there was a specific allegation in the complaint petition of the petitioner this Court will have no difficulty in holding that the Authority has failed to discharge its duty as conferred on it under Rule 18 of 2006 Rules. Considering all these aspects and specially the fact that the petitioner has higher marks either to the respondent no.9 or the respondent no.10, this Court will have no difficulty in quashing the impugned order 7 passed by the District Teachers Appellate Authority, Khagaria and remit the matter back to it for deciding the complaint of the petitioner afresh strictly in accordance with law after affording opportunity of hearing to the petitioner, respondent no.9 as also respondent no.10. In order to shorten this process, this Court would direct the petitioner, respondent no. 9 & 10 to appear before the Authority on their own on 2.1.2012 either themselves or through their representative, whereafter, the Authority shall fix a date of hearing and examine the allegations in the complaint petition of the petitioner threadbare by looking into the relevant records and after hearing the petitioner, respondent no.9 & 10 and the concerned officials, it shall pass a fresh order within a period of three months i.e. on or before 2.4.2012. As this Court has found from the counter affidavit filed by the official respondents that the petitioner has a prima-facie case, it would also direct that till a final decision is taken by the Authority on the complaint filed by the petitioner neither the 8 respondent no.9 nor the respondent no.10 shall be allowed to function on their post from tomorrow and till the final decision of the Authority. With the aforementioned observations and directions, this application is disposed of. Rsh (Mihir Kumar Jha, J.)