IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE NO.7634 OF 2009. MANDVI KUMARI, D/O SRI ROHIT THAKUR, W/O SRI BALRAM KUMAR, R/O VILLAGE RAM NAGAR, P.S. COLLEGE ROAD, KATIHAR, P.S KATIHAR, DISTRICT KATIHAR. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR. 2.THE SECRETARY, HUMAN RESOURCES DEPARTMENT,(TEACHER SELECTION), BIHAR, PATNA. 3.THE DISTRICT MAGISTRATE, KATIHAR, DISTRICT KATIHAR. 4.THE DISTRICT SUPERINTENDENT OF EDUCATION, KATIHAR, DISTRICT KATIHAR. 5.THE BLOCK DEVELOPMENT OFFICER, PRANPUR, P.S PRANPUR, DISTRICT KATIHAR. 6.THE BLOCK EDUCATION EXTENSION OFFICER, PRANPUR, P.S PRANPUR, DISTRICT KATIHAR. 7.THE GRAM PANCHAYAT SAMITI(TEACHERS SELECTION), KEHUNIA, THROUGH MUKHIYA, GRAM PANCHAYAT RAJ, KEHUNIA, P.S PRANPUR, DISTRICT KATIHAR. 8.THE PANCHAYAT SECRETARY, GRAM PANCHAYAT RAJ, KEHUNIA, P.S PRANPUR, DISTRICT KATIHAR. 9.THE MUKHIYA, GRAM PANCHAYAT RAJ, KEHUNIA, P.S PRANPUR, DISTRICT KATIHAR. 10.THE APPELLATE AUTHORITY, DISTRICT TEACHERS SELECTION KATIHAR, P.S KATIHAR, DISTRICT KATIHAR. 11.THE HEADMASTER, PRIMARY SCHOOL, SONAILA, P.S PRANPUR, DISTRICT KATIHAR. 12.KUMARI CHHAYA, W/O SRI CHANDRADEO RAI, D/O LATE SHIVLAL PANDIT, R/O MOHALLA LOHIANAGAR, BARMASIA, WARD NO. 11, KATIHAR, P.O. AND P.S KATIHAR, DISTRICT KATIHAR. ………………………RESPONDENTS. ------------ 06/ 09.12.2011 Heard counsel for the petitioner and counsel for the State. Despite service of notice on respondent no. 12 and also filing of counter affidavit by her, no one has 2 appeared on her behalf. Mr. Sushanto Kumar Das, learned counsel appearing on behalf of the petitioner while assailing the order passed by the District Teachers Appellate Authority, Katihar dated 02.05.2009 would point out that the aforesaid adverse order seeking cancellation of appointment of the petitioner was passed without even giving notice much less opportunity of hearing to her. He has also pointed out that the respondent no. 12 in fact had sought to assail the appointment of the petitioner well after a period of two years, inasmuch as, the petitioner was appointed on 17th March, 2007 but the District Teachers Appellate Authority has entertained the complaint of respondent no. 12, filed on 24.01.2009. It has also been pointed out that the respondent no. 12 had already given up her claim for appointment on the post on which the petitioner was appointed, inasmuch as, she was earlier selected and appointed as Panchayat Teacher in Primary School, Kuretha Panchayat, Katihar where pursuant to her appointment letter dated 28.02.2007 3 (Annexure-6), she had also submitted her joining report on 01.03.2007. Mr. Das, would, therefore, submit that if for any reason the aforesaid appointment of respondent no. 12 got subsequently cancelled, she could not have been allowed to return back to the post merely because she was first in the panel after she had already been selected and appointed as Panchayat Teacher in Primary School, Kuretha Panchayat, Katihar. In order to establish the bonafide of the petitioner, Mr. Das has also pointed out that it was only after the appointment and joining of respondent no. 12 on the post of Panchayat Teacher at Kuretha on 01.03.2007 that the petitioner’s appointment was made on 17.03.2007. In this case as noted above respondent no. 12 even after filing of counter affidavit has not been represented by her counsel. In the counter affidavit, which has been filed, the case of the petitioner has been fully admitted, inasmuch as, the petitioner’s specific averment made in paragraph no. 19 to 21 reading as 4 follows:- “That the respondent no. 12 on her selection for the post of Panchayat Teahcer on 28th February, 2007 she was posted in Primary School, Kuretha under Kuretha Gram Panchayat, Anchal-Mansahi, District Katihar and she is working as such in the Primary School, Kuretha. That in pursuance of her selection, respondent no. 12 was by letter dated 1st March, 2007 was asked to join in the concerned Primary School, Kuretha by respondent no. 6. That the respondent no. 12 in pursuance of Annexure-7 joined in the Primary School, Kuretha under Mansahi Anchal on 1st March, 2007 which is confirmed by the detail regarding selection of teachers prepared by the School as well as the Attendance Register of the Teachers.” giving full material particulars and details of the appointment of respondent no. 12 in Primary School, Kuretha in the district of Katihar, has not been controverted by the Respondent no. 12. Dealing with the aforesaid paragraphs in paragraph no. 16 of the counter affidavit the petitioner has admitted this case of the petitioner and has stated that:- “That, so far the statement made in paragraph no. 19 to 22 are correct deponent was also applicant in the Gram Panchayat, Kuraitha and she has joined her post but after few months of selection the said selection process of the Gram Panchayat, Raj Kuraitha became dispended and all the selection and appointment of Panchayat Teacher in Gram Panchayat, Kuraitha was cancelled.” 5 Thus from the reading of the aforementioned paragraph no. 16 of the counter affidavit of respondent no. 12, it would be more than clear that she was applicant for the post of Panchayat Teacher for at least two posts of one in Primary School, Kuretha Panchayat, Katihar and the other in which the petitioner was selected and appointed i.e Primary School, Sonaila, Kehuniya Panchayat, Katihar and only after respondent no. 12 had already been given the appointment letter in Kuretha Primary School under the Kuretha Gram Panchayat, Katihar that claim for selection and appointment of the petitioner in the other School was considered and she was appointed. Thus merely because the Respondent no. 12 could rank first in the selection list in Kehunia Panchayat would not entitle her to claim such appointment, if in the meantime she (Respondent no. 12) had already been appointed in another School in Kuretha Panchayat. This Court, therefore, will have no difficulty in holding that the order passed by the Authority suffers from 6 patent error, inasmuch as, even if the Mukhiya and Panchayat Secretary of the Panchayat in question had not responded, it was the duty of the Authority to examine the inter se merit of the claim of both the petitioner and respondent no. 12. Moreover, the manner in which the Authority has mechanically proceeded while allowing the complaint of respondent no. 12, that too after entertaining it beyond the period of limitation and in fact after expiry of a period of two years by itself would speak volume as with regard to the illegal and perfunctory manner of functioning of the Tribunal i.e. Authority. The District Teachers Appellate Authority has been brought as a substitute to the executive authorities to take a decision strictly in accordance with law but the manner in which the Authority in this case has decided the dispute would really put a big question mark on the whole functioning of the Authority. Be that as it may when the respondent no. 12 has not been represented and the allegation of the petitioner of such order passed by the Authority without 7 notice and/or opportunity of hearing is also unassailable and in fact admitted, this court will have no difficulty in quashing the impugned order passed by the District Teachers Appellate Authority as contained in Annexure-4 and also its consequential order (Annexure-13) passed by the Panchayat Secretary, Kehuniya dated 27.05.2009. As a result of quashing of both the orders contained in Annexure-4 and Annexure-13, the petitioner shall stand reinstated in service and her joining in Primary School, Sonaila, Kehuniya Panchayat, Katihar must be accepted forthwith. The petitioner, however, will not be entitled for payment of salary for the period she had remained out of service. With the aforementioned observation and direction, this application is disposed of. Ranjan (Mihir Kumar Jha, J.)