IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 9029 of 2010 1. SANJEEV KUMAR SUMAN, S/O JHARKHANDI PRASAD SAH, R/O VILLAGE DINDAYALPUR, P.O. KODANDA, P.S. SHAHKUND,DISTRICT BHAGALPUR. Versus 1. THE STATE OF BIHAR. 2. THE PRINCIPAL SECRETARY, PRIMARY, SECONDARY AND ADULT EDUCATION, BIHAR, PATNA 3. THE MEMBER OF DISTRICT EDUCATION EMPLOYMENT APPELLATE AUTHORITY,BHAGALPUR,DISTRICT-BHAGALPUR. 4. DISTRICT SUPERINTENDENT OF EDUCATION CUM DISTRICT PROGRAMME CONVENOR, BHAGALPUR DISTRICT- BHAGALPUR. 5. BLOCK EDUCATION EXTENSION OFFICER, SHAHKUND, DISTRICT BHAGALPUR. 6. BLOCK DEVELOPMENT OFFICER, SHAHKUND, DISTRICT BHAGALPUR. 7. SHUSHIL PASWAN, S/O NOT KNOWN, MUKHIYA OF THE GRAM PANCHAYAT DINDAYALPUR, BLOCK SHAHKUND,DISTRICT-BHAGALPUR. 8. SECRETARY OF GRAM PANCHAYAT CUM GRAMSEVAK MAMALKHA,BLOCK SHAHKUNA,DISTRICT BHAGALPUR. ----------- 2 04.08.2010 Heard the parties. The petitioner was selected as Shiksha Mitra in the year, 2005. It appears petitioner was selected on basis of having secured 570 marks in Intermediate. Petitioner had Graduate degree as well. It appears subsequently, on change of Mukhiya, the new Mukhiya filed a complaint before the Block Development Officer (BDO) complaining that the petitioner’s actual marks were only 540 and he had wrongly stated the same to be 570 and got selected. The complaint, as made, was enquired into by the BDO, Shahkund who gave a finding on 20.11.2007 (Annexure-7) that the petitioner’s appointment could not be termed as wrong. His appointment was valid. That should have closed the matter but the Mukhiya persisted. Ultimately upon the District Teachers Appointment Appellate Tribunal being created at Bhagalpur, the Mukhiya 2 filed Appeal No 266 of 2009 raising the same grievance. This time, by the impugned order dated 17.04.2010, the Tribunal has held that the petitioner has been wrongly selected on basis of forged marksheet of Intermediate. On behalf of petitioner, three contentions are raised to challenge the order aforesaid. Firstly, petitioner was initially appointed in the year, 2005. The Tribunal, in the year, 2009-2010, was not competent to entertain any such complaint for the said purpose. Petitioner relied on the decision of this Court in the case of Alok Kumar and others –Versus- State of Bihar and others since reported in 2009 (2) PLJR 929. His second submission is that petitioner’s appointment being of the year 2005, a complaint having been made and then enquired by the BDO, Shahkund who found the selection valid, should have ended the matter inasmuch as in the year 2007, in terms of the Bihar Primary Panchayat Teachers (Recruitment and Service Conditions) Rules, 2006 and, in particular, Clause 18 thereof, it was the BDO who was the competent authority to decide objections with regard to validity of appointment and other conditions of service. Thus, in terms of Rule 18, the BDO had decided the matter after enquiry. That being so, the Tribunal which substituted the BDO with effect from 2009 could not sit in appeal over the order of the BDO as the power of the Tribunal was co- terminus which earlier BDO exercised. Lastly, it was submitted that there is no material on record to show that the marksheet of the petitioner was forged in any manner. The marksheet has been appended as Annexure-10. 3 Having heard the parties, in my view, the writ petition must succeed on all three counts. Firstly, an appointment made in the year 2005, as has been held in the case cited above by this Court, cannot be interfered by the Tribunal in the year, 2009. That point goes in favour of the petitioner and against the respondents. Secondly, upto the time the Tribunal was constituted, in terms of Rule 18 of the Rules as aforesaid, it was the BDO who had the power under Rule 18 to decide the matter. Thus, the Tribunal is not the authority superior but exercising the power co- terminus with the BDO. BDO, in exercise of same power as enshrined in Rule 18 having passed an order, the Tribunal had no business to reopen the matter and that is wholly without jurisdiction. Thus, on this ground also, the order of the Tribunal cannot be sustained. Even with regard to the third and the last contention, the marksheet being Annexure-10, the Court has perused the same. The total marks, if one adds, clearly comes to 570 including the vocational marks. It is on basis thereof, petitioner was selected though the marksheet mentions the total 540 as well which does not stand to reason. In any case, before a finding that the marksheet was forged is given, the Tribunal had to make enquiries from the Bihar Intermediate Education Council, Patna and in absence thereof could not give any such finding. In absence of any finding from the Bihar Intermediate Education Council that the marksheet, as supplied by the petitioner, was forged, it was not open to the Tribunal to give such a finding. Thus, the writ application is allowed. The order of the 4 Tribunal dated 17.04.2010 passed in Appeal Case No 266 of 2009 is set aside. The petitioner would be deemed to be continuing in service and, accordingly, would be entitled to full remuneration for the entire period. M.E.H./ (Navaniti Prasad Singh)