IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3910 of 2009 Smt.Anita Kumari, D/o Ishwar Paswan, wife of Narendra Kumar Arun, resident of village Dewkali, P.O. Belchhi, P.S. Manpur, District Nalanda … Petitioner Versus 1. The State Of Bihar 2. The Commissioner cum Secretary, Human Resources Department, Govt. of Bihar, Patna 3. The Director cum Special Secretary, Primary Education, Govt. of Bihar, Patna 4. The District Magistrate, Bihar Sharif (Nalanda) 5. The D.S.C., Bihar Sharif (Nalanda) 6. The Block Education Extension Officer, Bihar Sharif (Nalanda) 7. The B.D.O., Bihar Sharif (Nalanda) 8. The Panchayat Secretary, Panchayat Palatpura, P.O. Belchi Sharif, P.S. Manpur, District Manpur 9. Smt. Babita Kumari, D/o Nageshwar Paswan, at present posted as Palatpura Panchayat Teacher, Primary School Devkali Beldaria Bigha, P.S. Manpur, District Nalanda, permanent resident of village Sahnawra, P.O. Chak Hawarda, P.S. Pandarak, District Patna … Respondents ------------------- For the Petitioner: Mrs. Mahasweta Chatterjee, Adv. For the State : Mr. Sunil Kumar Mandal, S.C.24 Mr. Abdus Shakoor, A.C. to S.C.24 For respondent no.9: Mr. Anil Kumar Dwivedi, Adv. & Mr. Anil Kumar, Adv. -------------------- P R E S E N T THE HON’BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (16.12.2011) Mihir Kumar Jha,J. Heard counsel for the parties. In this writ application initially a prayer was made for quashing of the order dated 17.12.2008 passed by the Block Development Officer, Bihar Sharif wherein it was held by him that there was no anomaly in the appointment of Panchayat teacher in Palatpura Panchayat and that the grievance of the petitioner as against the appointment of respondent no.9 was wholly uncalled for and unjustified. During the pendency of this writ application the petitioner’s complaint before the District Teachers Appellate 2 Authority was also decided wherein the Authority had also held that there was no anomaly in the appointment of respondent no.9. Such order of the authority dated 23.9.2009 has been assailed by the petitioner by filing an interlocutory application, I.A. No. 7137/2009. In view of the fact that the prayer in I.A.No. 7137/2009 is only in continuation with the main relief prayed in this writ application, this Court would allow the amendment sought in the prayer for also assailing the order dated 23.9.2009 in Case No. 117/2009. Mrs. Mahasweta Chatterjee, learned counsel appearing on behalf of the petitioner, had submitted that the appointment of respondent no.9 was wholly unjustified, inasmuch as the petitioner being an applicant in the same category for a post of Panchayat teacher in Palatpura Panchayat was a better candidate having secured 569 marks in the Intermediate Examination conducted by the Bihar Intermediate Education Council, whereas respondent no.9 had secured only 519 marks in the same Intermediate Examination conducted by the Bihar Intermediate Education Council. She had also highlighted that the whole plea of the respondents of there being a counselling in which the petitioner did not appear was not only factually incorrect but legally impermissible, inasmuch as there was no concept of counselling prior to preparation of the panel. Counsel for the private respondent no.9, on the other hand, had submitted that true it is that the petitioner had secured higher marks than respondent no.9 in the Intermediate 3 Examination but when she did not appear for counselling before the Selection Committee of the Panchayat despite a notice issued on 23.12.2006, the resultant action of the Panchayat in selecting and/or appointing respondent no.9 cannot be faulted. Counsel for the State also had adopted the aforementioned stand of respondent no.9. Considering the fact that there was a direct allegation of manipulation in the selection process this Court by an order dated 2.12.2011 had directed the Block Development Officer of Bihar Sharif Prakhand to seize the records of the entire selection process for the post of Panchayat Teacher in Palatpura Gram Panchayat and pursuant to the aforementioned direction Mr. Mithilesh Kumar, the present B.D.O. of Bihar Sharif Prakhand has not only produced the record but has also filed a counter affidavit wherein he has taken a stand that there was no flaw in selection and appointment of respondent no.9. The appointment on the post of Panchayat Shikshak is governed by the provision of Bihar Panchayat Prarambhik Shikshak (Niyojan Awam Seva Sarta) Niyamawali, 2006. The procedure for such appointment has been set out in Rule 9 which for the sake of clarity is quoted hereinbelow: “9- fu;kstu dh izfdz;k %& (i) jkT; ljdkj iz[k.M f”k{kdksa ds fu;kstu gsrq le;&le; ij iapk;r lfefr dks rFkk iapk;r f”k{kdksa ds fu;kstu gsrq xzke iapk;rksa dks inksa dh la[;k miyC/k djk;sxhA (ii) iapk;r lfefr@xzke iapk;r }kjk dksfVokj iz[k.M f”k{kd rFkk iapk;r f”k{kd ds fjDr inksa dh lwpuk dk izdk”ku iwjs iz[kaM@iapk;r esa de ls de 15 fnuksa rd ds fy, fd;k tk;sxkA (iii) fofgr izi= ¼vuqlwph&1½ esa vkosnu&i= iz[k.M f”k{kd ds fy, 4 iz[k.M f”k{kk izlkj inkf/kdkjh ds ;gk¡ rFkk iapk;r f”k{kd ds fy, xzke iapk;r ds lfpo ds ;gk¡ izkIr fd;k tk;sxkA izkfIr ds ckn rqjUr ,d izkfIr jlhn nh tk;sxkh@Hksth tk;xhA (iv) iz[k.M f”k{kd ds fu;kstu gsrq iSuy %& ¼d½ iz[k.M f”k{kd ds fu;kstu gsrq iSuy iz[k.M Lrj ij iapk;r lfefr ds izeq[k dh v/;{krk esa xfBr iapk;r lfefr ds }kjk es/kk vadksa ds vk/kkj ij rS;kj fd;k tk;sxkA es/kk vadksa dh x.kuk fuEu izdkj dh tk;sxh %& 1- eSfVªd@mPprj ek/;fed@bUVjehfM,V& izkIrkad dk izfr”kr 2- nks o’khZ; izf”k{k.k@ch0,y0,M0@ch0,M0@ lh0ih0,M0 & izkIrkad dk izfr”kr ijUrq ;fn dksbZ vH;FkhZ nks o’khZ; izf”k{k.k rFkk ch0,y0,M0@ch0,M0@lh0ih0,M0 dh fMxzh izkIr fd;k gks rks muds }kjk nkok fd;s x;s fdlh ,d izf”k{k.k ds izkIrkad ds izfr”kr dks es/kk vad esa tksM+k tk;sxkA *[¼[k½ [k.M ¼d½ ds 1] vkSj 2 dks tksM+dj rFkk tksM+ dks nks ls Hkkx nsus ij tks izfr”kr gksxk] ogh vH;FkhZ dk es/kk vad gksxk ijUrq fu;e 4 ds mifu;e ¼2½ esa mfYyf[kr vH;fFkZ;ksa ds ekeys esa 1 o’kZ ;k vf/kd f”k{k.k vuqHko ds fy, 20 vad muds es/kk vad esa tksM+s tk;saxsA ¼x½ ijUrq “kkjhfjd f”k{kk f”k{kd ds fu;kstu gsrq iSuy vyx ls rS;kj fd;k tk;sxkA (v) iapk;r f”k{kd ds fu;kstu gsrq iSuy %& ¼d½ iapk;r f”k{kd ds fu;kstu gsrq iSuy xzke iapk;r ds eqf[k;k dh v/;{krk esa xfBr lefr ds }kjk es/kk vadksa ds vk/kkj ij rS;kj fd;k tk;sxkA es/kk vadksa dh x.kuk fuEu izdkj dh tk;sxh %& 1- eSfVªd@mPprj ek/;fed@bUVjehfM,V& izkIrkad dk izfr”kr 2- nks o’khZ; izfk{k.k@ch0,y0,M0 & izkIrkad dk izfr”kr ijUrq ;fn dksbZ vH;FkhZ nks o’khZ; izf”k{k.k rFkk ch0,y0,M0@nksuksa dh fMxzh izkIr fd;k gks rks muds }kjk nkok fd;s x;s fdlh ,d izf”k{k.k ds izkIrkad ds izfr”kr dks es/kk vad esa tksM+k tk;sxkA *[¼[k½ [k.M ¼d½ ds 1] vkSj 2 dks tksM+dj rFkk tksM+ dks nks ls Hkkx nsus ij tks izfr”kr gksxk] ogh vH;FkhZ dk es/kk vad gksxk ijUrq fu;e 4 ds mifu;e ¼2½ esa mfYyf[kr vH;fFkZ;ksa ds ekeys esa 1 o’kZ ;k vf/kd f”k{k.k vuqHko ds fy, 20 vad muds es/kk vad esa tksM+s tk;saxsA 5 (vi) nksuksa Lrjksa ds f”k{kdksa ds fu;kstu gsrq iSuy fuekZ.k ds dze esa leku vad izkIr gksus ij] ftudh tEe frfFk igys gksxh] mUgsa iSuy esa mij j[kk tk;sxkA leku vad ,oa leku tUe frfFk gksus ij MªkW vkWQ ykWV~ ds }kjk iSuy esa mij LFkku fu/kkZfjr gksxkA (vii) iSuy fuekZ.k gsrq lfefr dk xBu rFkk vuqeksnu %& izkIr vkosnu i= ds vk/kkj ij iSuy dk fuekZ.k ffuEufyf[kr lfefr ds }kjk fd;k tk,xk %& ¼d½ iz[k.M f”k{kd ,oa “kkjhfjd f”k{kk f”k{kd gsrq %& (i) iapk;r lfefr dk izeq[k & v/;{k (ii) dk;Zikyd inkf/kdkjh] iapk;r lfefr& lnL; (iii) iapk;r lfefr ds f”k{kk lfefr }kjk p;fur ,d lnL; ¼izeq[k; iq#’k gksus ij p;fur lnL; efgyk gksxh½ & lnL; (iv) iz[kaM f”k{kk izlkj inkf/kdkjh& lnL; lfpo ¼[k½ iapk;r f”k{kd gsrq %& (i) xzke iapk;r dk eqf[k;k & v/;{k (ii) xzke iapk;r ds f”k{kk lfefr }kjk p;fur ,d lnL; ¼eqf[k;k iq#’k gksus ij p;fur lnL; efgyk gksxk½ & lnL; (iii) iapk;r lfefr dk og lnL; ftuds {ks= dk vf/kdka”k Hkkx ml iapk;r esa iM+rk gks& lnL; (iv) iapk;r vFkok iapk;r ds fudVLFk ek/;fed fo|ky; dk ftyk f”k{kk inkf/kdkjh }kjk euksuhr ,d f”k{kd & lnL; (v) xzke iapk;r lfpo & lnL; lfpo ijUrq mijksDr nksuksa lfefr;ksa esa p;fur lnL; dk dk;Zdky ,d o’kZ dk gksxkA fVIi.kh %& iapk;r lfefr dh f”k{kk lfefr rFkk xzke iapk;r dh f”k{kk lfefr xfBr ugha gksus dh fLFkfr esa iz[k.M f”k{kk izlkj inkf/kdkjh ds }kjk iapk;r lfefr@xzke iapk;r ds ,d lnL; lfefr ds lnL; euksfur dj ldsxsaA (viii) iSuy rS;kj gks tkus ij mls lkoZtfud fd;k tk;sxkA fdlh izdkj dh vkifÙk nsus gsrq ,d lIrkg dk le; fn;k tk;sxkA izkIr vkifÙk dk fujkdj.k dj iSuy dks vfUre :i fn;k tk;sxkA (ix) iz[k.M f”k{kdksa rFkk iapk;r f”k{kdksa ds fu;kstu gsrq rS;kj iSuy dk vuqeksnu dze”k% iapk;r lfefr ,oa xzke iapk;r ds }kjk fd;k tk;sxkA 6 (x) p;fur vH;fFkZ;ksa dks bfPNr fo|ky;ksa esa fu;kstu es/kk ds vk/kkj ij rS;kj iSuy ls vuqlwph&II esa vafdr izkFkfedrk ds vojksgh dze esa mijksDr lfefr }kjk dkmfUlfyax ds vk/kkj ij fd;k tk;sxkA *[ijUrq iz[k.M f”k{kd ds inLFkkiu esa bl ckr dk /;ku j[kk tk;sxk fd Lukrd ;ksX;rk/kkjh f”k{kdksa dk inLFkkiu e/; fo|ky; esa gks ftlesa ls U;wure nks f”k{kd foKku ds gksaA Lukrd ;ksX;rk/kkjh foKku f”k{kd ugha feyus ij bUVj ;ksX;rk/kkjh foKku f”k{kd dk inLFkkiu izkFkfedrk ds vk/kkj ij fd;k tk;sxkA (xi) p;fur vH;FkhZ dks fu;kstu i= ¼vuqlwph&III½ Hkstk tk;sxkA lgefr i= ds vk/kkj ij ;ksxnku Lohd`r fd;k tk;sxkA From a bare perusal of the aforementioned Rule it would be clear that not only advertisement/ requisition for filling up the post of Panchayat Shikshak has to be given a wide publicity but on receipt of such application initially a panel has to be made of all the applicants. Such panel has to be prepared by giving merit points (Medha Ank), wherein the marks obtained by the candidate in the qualifying examination i.e. Matric, Higher Secondary, Intermediate and marks in the two years training course have to be added and by taking average of both of the total marks of Intermediate and training examination the panel has to be prepared strictly in order of merit. From the reading of Rule 9 (v) and (vii) it would be clear that the preparation of panel by the Selection Committee and its approval have to be made in a transparent manner and such panel has to be also published for inviting objection. It is only after consideration of the objection that the panel has to be finalized and approved; whereafter appointment has to be made on the basis of counselling. As a matter of fact Rule 9(x) would leave nothing for speculation that the counselling 7 is only to be made after the panel is prepared for the purposes of appointment. The sanguine object of the counselling is to fix order of appointment in descending order wherein in case of appointment of a female/ male Panchayat Teacher the first preference has to be given to the Scheduled Tribe followed by Scheduled Caste, most economically backward and general category. The purpose of counselling, therefore, is very limited and definitely cannot be made the basis for preparation of panel. In the backdrop of the aforementioned statutory provision when the procedure adopted for appointment of respondent no.9 is examined, it is found that the Panchayat in question had invited application for the post of Panchayat Teacher in the month of August, 2006, in response whereof 362 applications are said to have been filed. The petitioner is also said to have filed her application on 23.8.2006. There are four registers produced by the B.D.O., Bihar Sharif and in one of them though there are details of 362 applications but there is no date of preparation of such list of total number of candidates. Since the register has been opened on 15.8.2006 under the joint signature of Renu Devi, Mukhiya and Kaushlendra Kumar, Panchayat Secretary, this Court will proceed that the said register only contains the name of the candidates, who had filed application. The second register which has been produced and was opened without any date is said to be a notice register and starts from the date of 8.11.2006. By Notice No.1 a meeting is said to have been convened for 10th of November, 2006 but in the corresponding 8 proceeding register which has been produced there is nothing to show that any meeting was held on 10th November, 2006 and as such, this Court will have to presume that nothing was done as with regard to constitution of penal on 10th November, 2006. By Notice No.2 a meeting is said to have been convened for 20th November, 2006 for considering the selection on the post of Panchayat Shikshak which is said to have been attended by Mukhiya, Tetari Devi, Member of the Education Committee of the Gram Panchayat, Sunil Kumar Yadav, Member of Panchayat Samiti, Md. Zahir Alam, a teacher of the High School, Sarbahdi selected by the District Education Officer and the Panchayat Secretary Kaushlendra Kumar. The proceedings would bear it out that some earlier counselling was held on 14.11 and 15.11.2006 in which three trained candidates had appeared and therefore, their names were placed before the Committee in the meeting held on 20th of November, 2006. It is only their name which was said to be included in the panel for its being published for inviting objection. In view of above it would become clear that there is no record of any counselling sought to be made on 14.11 and 15.11.2006 about which an entry was made in the proceedings of the Panchayat Samiti on 20.11.2006 by someone by putting the date of 14.11 and 15.11.2006 in different ink and different pen by making cutting in the proceeding book. Be that as it may, since the petitioner and respondent no.9 were not trained candidates, nothing much would turn out of this anomaly save and except that after inviting of application the 9 procedure prescribed under Rule 9 for preparation of panel was not undergone and in fact process of counselling had begun earlier than preparation of panel. It is significant to bear in mind that if trained teachers could have become available there was no question of appointment of untrained teachers, inasmuch as appointment of untrained teachers could only be made if there were not sufficient number of trained candidates. The period which was fixed for inviting objection on the so called counselling and the panel prepared in the meeting of 20th November, 2006 had given a week’s time and the said merit list of trained candidates was finalized in the next meeting held on 29th November, 2006. There were three persons, namely, Yogendra Kumar Sharma, Arshun Nisha and Raushan Ara, who were empanelled in the approved panel for the trained teachers. In the meeting held on 29th November, 2006 also there was no decision for considering the appointment of untrained teachers. Thereafter Notice No.4 is said to have been issued on 10.12.2006 fixing a meeting for 12th of December, 2006 and in the meeting of 12th December, 2006 appointment was sought to be made of only two of the three empanelled trained teachers, namely, Arshun Nisha and Yogendra Kumar Sharma. From the proceedings of the meeting of 12th December, 2006 also it becomes clear that nothing was done for preparation of panel of untrained teachers. It is then Notice No.5 is said to have been incorporated in the notice register wherein on 20th December, 2006 a notice was circulated for holding the meeting of Selection 10 Committee on 23.12.2006 for the purposes of publication of panel of untrained candidates. As noted above, there is no record to show that any panel of untrained candidate was ever prepared barring writing down names of all 362 applicants in a separate register. Thus in the proceeding recorded on 23.12.2006 when a decision is said to have been taken to prepare panel for untrained candidate on the ground that none of the trained candidates for appointment on the post of Panchayat Shikshak had submitted their joining, the decision to hold counselling on 26th December, 2006 and 27th December, 2006 and publication of panel on 29.12.2006 are definitely tailor made process, inasmuch as if the trained teachers were selected and empanelled of their appointment in the meeting held on 12.12.2006, any decision to declare those post vacant on account of non-joining had to proceed by some analysis of the remaining untrained candidates eligible for selection. There is however nothing on record to show that when the appointment letters issued to the trained candidates were actually sent to them and/or what was the time fixed for their joining. At least the records do not contain any such detail. In that view of the matter, it would be very difficult for this Court to accept that the decision taken in the meeting held on 23rd of December, 2006 for conducting counselling of untrained teachers on 26.12.2006 and 27.12.2006 was given any publicity much less wide circulation as contemplated under the Rules. There is nothing much for speculation for this aspect, inasmuch as there is no record to show that any notice was circulated for such 11 counselling and in fact when there is said to be a duly maintained notice register which also does not contain such notice of counselling, inasmuch as Notice No.5 is with regard to a meeting of Selection Committee dated 20.12.2006 and Notice No.6 is with regard to a meeting of 22.2.2007. In that view of the matter, this Court will little option but to reject the plea of the respondents that there was a notice published and pasted on the office of the Panchayat Bhawan/ Community Centre on 23.12.2006 which had afforded opportunity to 362 candidates to attend counselling on 26th and 27th December, 2006. If date of 23rd of December, 2006 is excluded which must be excluded, the alleged counselling was said to have been held just after expiry of 48 hours and the result of the said counselling as shown in an undated proceeding at Page 9 of the proceeding book register would itself reveal that only five candidates are said to have appeared in such counselling. It has to be noted that there is a separate register of counselling containing signature of the candidates and those five candidates who are said to have appeared in the counselling, namely, Sujit Kumar and Dineshwar Rabidas are the resident of District Sheikhpura, whereas respondent no.9 herself is resident of District Patna and in fact none of the five candidates are resident of the same Palatpura Panchayat of the District of Nalanda in which the selection was made. A question, therefore, would arise that when could these five persons receive information about the counselling for which only notice was said to have been pasted in the office of the Panchayat Bhawan of Palatpura Panchayat in the 12 District of Nalanda. One does not need to become a James Bond to find out as to how the whole thing was done, inasmuch as the process of illegality done by the Selection Committee headed by the Mukhiya and also having at least two Government officials, namely, Md. Zahir Alam, the representative of the District Education Officer and Kaushal Kumar, the Panchayat Secretary did not bother to even record as to on what date the counselling was held. There are two dates mentioned for counseling being 26th December, 2006 and 27th of December, 2006 but there is nothing to show that which of the five candidates had appeared on which day. It thus becomes clear that not only Rules as laid down for preparation of panel, selection and counselling limited only for making appointment was flouted with impunity but even persons having much better marks were left out from the zone of consideration. From the list of 362 candidates it would appear that the petitioner is not the brightest candidate and in fact there are a large number of candidates out of 362 who had secured more than 70% marks in Intermediate Examination, namely:- Sl.No. Name of the candidate Marks in Intermediate Exam. 1. Kamlesh Kumar 82.3% 2. Indu Kumari 79.23% 3. Ashwini Kumar 78.7% 4. Kumari Sanju Sinha 78% 5. Rinku Kumari 77.2% 6. Amrendra Kumar 77% 7. Sona Devi 76.2% 8. Gautam Prasad 74% 9. Satyendra Kumar 71.47% 10. Md. Sazid Khan 71.11% 13 11. Arbind Kumar Sinha 70.8% 12. Jainendra Kumar Sinha 70.6% 13. Sanjay Kumar 70.44% 14. Vinay Kumar Kaushal 70% 15. Surendra Kumar 70% As a matter of fact if the persons securing higher marks to respondent no.9 is also tabulated in similar fashion from the list of 382 candidates there are at least 100 candidates who including the petitioner securing 63.2% who were better on merits but all of them could easily be ignored on account of non- observance of the prescribed procedure for preparation of panel and in the name of counselling. A large number of candidates amongst 382 securing higher marks than respondent no.9 of Palatpura Panchayat itself were not included in the panel on the ground of their also not appearing in the counselling and the respondent no.9 securing 519 marks in Intermediate (57.7%) was appointed. Thus, it was not only the petitioner having secured 63.2% but many others including those named above having secured much higher marks than respondent no.9 were omitted from the zone of consideration by adopting a dubious procedure of counselling which was only known to the members of the Selection Committee. It is thus very difficult for this Court to believe that out of 362 candidates only five could get information about the counselling even when they were not resident of the same Gram Panchayat. The fact that not a single applicant from Palatpura Gram Panchayat could get appear in such counselling though they had much higher marks to respondent no.9 would 14 itself expose the fraud played by the members of the Selection Committee in league with respondent no.9. Articles 14 and 16 of the Constitution of India only aim to achieve a equality in the matter of public employment. Here in this case when more than a dozen persons having secured 70% and above were left out from the zone of consideration on account of 48 hours alleged counselling process not even envisaged in Rules and there is also nothing to show that all the candidates were informed about such recourse of counselling, there would be nothing left for speculation that a bungling was in fact committed by the members of the Selection Committee and specially by its Mukhiya and Panchayat Secretary. The five candidates, who could allegedly appear in counselling would also be party to such collusion and conspiracy inasmuch as they too would owe an explanation as to how they could receive information about such counselling and from whom. If these facts are so obvious from a bare perusal of the records produced by the present B.D.O., it would defy all sort of logic as to how the then B.D.O., Nalanda by the impugned order dated 17.12.2008 could hold that there was no flaw in the selection and appointment of respondent no.9 on the post of Panchayat teacher in Palatpura Panchayat. What is equally baffling and in fact shocking for this Court is that an independent Tribunal, namely, District Teachers Appellate Authority manned by Mr. D.N.Pradhan, a retired District and Sessions judge could decide the matter only on the report of the Block Education Extension 15 Officer and the B.D.O. From the reading of his order dated 23.9.2009 it becomes clear that he did not even bother to look into the records of selection and had passed an order in the editorial fashion by affirming the order of the B.D.O. as he was sitting in appeal over the order of the B.D.O. It has to be noted that earlier under Rule 18 the B.D.O. was the competent authority who was replaced by the District Teachers Appellate Authority and the order which was passed by the B.D.O. on 17.12.2008 was never passed on a complaint filed by the petitioner before the B.D.O. so as to make the order of the District Teachers Appellate Authority a superfluous exercise. The order that was passed on 17.12.2008