IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.661 of 2009 ====================================================== Sanmol Yadav, Son of Resham Lal Yadav, P.O. Gawalpara, Via Surpatganj, P.S. Chhatapur, District – Supaul. .... .... Petitioner. Versus 1. The State of Bihar through the Secretary, Primary & Adult Education Department, New Secretariat, Patna. 2. The Collector-cum-District Magistrate, Araria. 3. The District Superintendent of Education, Araria. 4. Block Development Officer –cum- Appellate Authority, Panchayat Teachers Employment, Bhargama, Araria. 5. Block Education Extension Officer, Araria. 6. Mukhia, Gram Panchayat, Raj Paikpur, P.S. Bhargama, District – Araria. 7. Panchayat Secretary, Gram Panchayat, Paikpur, District – Araria. 8. Shri Chandan Kumar, Son of Shri Gopal Mandal, Village – Paikpur, P.O. Paikpur, P.S. Bhargama, Via Meriganj, District – Araria. .... .... Respondents. ====================================================== Appearance : For the Petitioner/s : Mr. R.N.Mukhopadhaya Mr. Alok Mr. Dr.Satyendra Dutta Mishra Mr. Sachchida Nand Karn For the Respondent/s : Mr. (Sc13) ====================================================== CORAM: HONOURABLE JUSTICE SMT. MRIDULA MISHRA ORAL ORDER (Per: HONOURABLE JUSTICE SMT. MRIDULA MISHRA) 05/ 19-09-2011 Heard counsel for the petitioner, the State and the Respondent No. 8. Counter affidavits have been on behalf of State as well as private Respondent No. 8, but Mukhiya and Panchayat Secretary, Respondent Nos. 6 and 7, despite proper service of notice have not entered appearance. The issue involved in this writ application relates to Patna High Court CWJC No.661 of 2009 (5) dt.18-09-2011 2 / 5 2 appointment of Panchayat Teacher in Gram Panchayat Raj, Paikpar. 16 posts of Panchayat Teachers were advertised which included posts in unreserved, reserved and disabled category. Petitioner, who belongs to backward category, also applied for the post. Petitioner’s case is that he possessed 67.33% marks and Respondent No. 8 another backward category candidate has having 66.66% marks. The panel was prepared on 15.10.2007 in which the petitioner’s position was above the Respondent No. 8. However, due to some objection, instead of issuing appointment letter on the basis of the panel prepared on 15.10.2007 fresh date was fixed for counselling. Petitioner’s case is that he was not noticed to participate in the counselling, fixed on 29.10.2007, he got knowledge otherwise, and went to participate in the counselling. The petitioner and 12 more candidates, who were not allowed to participate in the counselling, on 29.10.2007, they immediately, on the same day, filed their objection before the Block Development Officer, Bhargama. The Block Development Officer, Bhargama, conducted an enquiry, as several other objections had been filed against the appointment made illegally and passed order contained in Annexure-1. So far petitioner’s objection is concerned, B.D.O., Bhargama did not record any Patna High Court CWJC No.661 of 2009 (5) dt.18-09-2011 3 / 5 3 finding except that the objection by 13 persons that on 29.10.2007 they were not allowed to participate in the counselling, cannot be considered, unless an opinion of handwriting expert is obtained regarding genuineness of their signature in objection petition. There is no finding with regard to the issue, that petitioner was not allowed to participate in the counselling, despite higher marks and due to that Respondent No. 8 was selected. In the counter affidavit filed on behalf of Respondent No. 8 as well as other respondents it is stated that petitioner did not participate in the counselling. The District Superintendent of Education has not stated anything in his counter affidavit, except that only Mukhiya and Panchayat Secretary are the competent authority to make any comment in the case of petitioner. Petitioner has fled rejoinder in order to bring on record the order passed by the District Teachers Employment Appellate Authority, Araria in Appeal No. 56 of 2009 filed by the petitioner during the pendency of the writ application. The order passed by the Appellate Authority dated 2.7.2011 contained in Memo No. 104 indicates that the enquiry was conducted and the finding is in favour of the petitioner that there were interpolations in the connected records and by manipulation the final selection list was prepared. The Appellate Authority did not pass any final order Patna High Court CWJC No.661 of 2009 (5) dt.18-09-2011 4 / 5 4 considering the pendency of the writ application. On consideration of the pleadings of the parties, what I find that disputed question of facts involved in this writ application needs proper enquiry and verification of connected records, before passing any order. If necessary, parties can also be asked to produce evidence. All this action cannot be taken, sitting in writ jurisdiction and the issue based on disputed facts it is proper that this matter be remitted back to the Appellate Authority for fresh consideration and passing an order in accordance with law. The matter is remitted back to the Appellate Authority for consideration afresh and to record the finding. Impugned order passed by the B.D.O. indicates that the objection raised by the petitioner was being finally decided but it was kept in abeyance till the opinion of the handwriting expert is obtained. Under 2006 Rules, the B.D.O. was the Appellate Authority, but the objections and complaints remained undecided and pending before the B.D.O., such matters after coming into force of 2008 Rules, are to be decided by the District Teachers Employment Appellate Authority, being a competent forum. The objection raised by the petitioner, since, remained undecided, as such legally the matter is to be decided by the statutory appellate forum. Patna High Court CWJC No.661 of 2009 (5) dt.18-09-2011 5 / 5 5 According, this matter is being remitted back to the District Teachers Employment Appellate Authority, Araria. The earlier order passed by the Appellate Authority as contained in Memo No. 104 dated 2.7.2011 annexed as Annexure- 12/1 to the rejoinder filed by the petitioner in Appeal No. 56 of 2009, is quashed. The matter is remitted back to the Appellate Authority for deciding the issue afresh, giving notice and proper opportunity to all concerned, including the petitioner, respondents, Mukhiya, Panchayat Secretary and other persons, who had also signed the objection petition along with the petitioner, in the joint objection petition dated 29.10.2007. Giving proper opportunity to all concerned, the matter regarding not allowing to petitioner to participate in the counselling or non-appearance of the petitioner on the particular date before the Selection Committee should be decided and finding be recorded by the Appellate Authority. The Appellate Authority will decide the issue within three months from the date of production/communication of the order. DKS/ (Mridula Mishra, J)