IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5211 of 2010 1. CHITRANJAN KUMAR SINGH S/O TARKESHWAR SINGH R/O VILL.- MOHANPUR, P.O.- BALWA HAT, P.S.- SIMRI BAKHTIYARPUR, DISTT.- SAHARSA 2. KUNDAN KUMAR S/O SATYANAND RAY R/O VILL.- MOHANPUR, P.O.- BALWA HAT, P.S.- SIMRI BAKHTIYARPUR, DISTT.- SAHARSA 3. MD. KAUSAR ALI RAHMANI S/O MD. ALAUDDIN R/O VILL.- CHAKMAKKA, P.O.- SIYNABAD, P.S.- SIMRI BAKHTIYARPUR, DISTT.- SAHARSA 4. MD. ABU KAMAR S/O MD. SULTAN AHMAD R/O VILL.- MOHANPUR, TOLA- USRAHI, P.O.- BALWA HAT, P.S.- SIMRI BAKHTIYARPUR, DISTT.- SAHARSA. VERSUS 1. THE STATE OF BIHAR. 2. THE DISTRICT COLLECTOR, SAHARSA 3. THE SUB-DIVISIONAL OFFICER, SIMRI BAKHTIYARPUR, SAHARSA 4. THE BLOCK DEVELOPMENT OFFICER, BLOCK- SIMARI BAKHTIYARPUR, DISTT.- SAHARSA 5. THE BLOCK EDUCATION EXTENSION OFFICER, BLOCK- SIMARI BAKHTIYARPUR, DISTT.- SAHARSA ----------- For the Petitioners : Shri Gajendra Kumar Jha. Shri Ajit Kumar Sinha. For the State : AC to AAG-V. ------------- 02 06.07.2010 The four petitioners were selected in 2007 as Primary Panchayat Teachers. Consequent to selection, some of the persons though who were much higher in the merit list but were not selected appealed to the Block Development Officer (B.D.O.). The Block Development Officer-cum-Appellate Authority in terms of Rule 18 of the Bihar Panchayat Primary Teachers (Appointment and Service Condition) Rules, 2006, as it then was, called for the records of selection and appointment. He found that people who were far above in the merit list were not appointed, instead showing them absent at the time of counseling, petitioners, who were below in the merit list were appointed. He, accordingly, set - 2 - aside the appointment of the four petitioners and directed the Panchayat Samiti to re-consider the matter as per the merit list. When this matter for compliance was reported to the Panchayat Samiti, the Panchayat Samiti instead of implementing the order noticed that the petitioners were rightly appointed because all the persons above them in the merit list had failed to turn up for counseling and, as such, the Panchayat Samiti had decided to reject their applications. The Panchayat Samiti, accordingly, requested the B.D.O. for reconsidering its decision, but in the meantime it refused to implement the order of the Appellate Authority, as passed under Section 18 of the Bihar Panchayat Primary Teachers (Appointment and Service Condition) Rules, 2006. One of the objector who would have got the appointment then approached this Court by filing C.W.J.C. No.11581 of 2008 (Nafis Alam Vs. The State of Bihar & Ors.), which was disposed of on 09.04.2009. This Court directed the Principal Secretary, Human Resources Department, Government of Bihar, Patna to immediately look into the matter and pass appropriate orders with regard to the petitioner within four weeks. If it is found that he was wrongly denied appointment then he shall be appointed and he shall be deemed from the date he was denied appointment for the purposes of seniority. Upon this order, the Principal Secretary took up the matter and by Annexure-4D dated 31.03.2010 being memo no.950 has revisited the entire issue. He found that firstly, the Selection Committee consisted only of Mukhiya and Panchayat Secretary, - 3 - which was not in accordance with the provisions. He then found that all meritorious candidates were shown to be absent in the counseling and because of that default petitioners were not given advantage, which was not correct. The Principal Secretary, thus, did not interfere with the order of the B.D.O., as passed as Appellate Authority, rather, B.D.O. had left one Punam Kumari untouched and she was also removed. The Principal Secretary finding the conduct of the Mukhiya and the Panchayat Secretary fraudulent in this respect direct prosecution against them as well. It is the original order of the B.D.O.-cum-Appellate Authority dated 14.04.2008 as well as this order of the Principal Secretary, that is, under challenge. The principal ground of challenge as put forward by Shri Gajendra Kumar Jha, learned Advocate is that petitioners were duly appointed and their appointments were being cancelled. The same could not have been done without notice to them. That would be gross violation of principles of natural justice. Having heard the parties and with their consent this writ petition is being disposed of at this stage itself. The legal proposition as put forward by the learned counsel appearing in support of the writ petition is unexceptionable but true it is that if fraud has been perpetuated, fraud vitiates all. As has been said long back that principles of natural justice is not either a bull in the china shop nor is it an unruly horse. For this purpose, let us first examine the basic facts. - 4 - I may add here that Shri Jha was far enough to produce before this Court a detailed copy of the meeting of the Selection Committee of the said Panchayat. Having perused the same, as it came from the counsel for the petitioners himself, the following facts must be noted. After scrutiny of applications merit list was prepared and considered by the Selection Committee on 15.01.2007, then the next meeting is dated 08.03.2007, in which it is noted that all the persons who were in the merit list were required to come for counseling but none of them turned up, as such, it was decided by the Committee that all of them should be informed by post to come for counseling on 10.03.2007. This order was being passed on 08.03.2007. It is anybody’s guess as to whom postal information would reach the applicants in such a short time. The next meeting is 10.03.2007 in which actions taken for appointment are approved. The resolution is signed only by the Mukhiya, Panchayat Secretary and some one other ward member has also signed, though he is not a member of the committee. This clearly substantiates the findings of the Principal Secretary that the committee finally selecting the candidate consisted only of Mukhiya and the Panchayat Secretary that itself vitiates the selection. Now, I may come to the plea that was taken before the Panchayat Secretary that notices were sent by U.P.C. to all the candidates as most of them did not appear for counseling pursuant to the notice, petitioners who were below in the merit list were - 5 - appeared and selected. In relation to this, this Court would first observe, as to why when advertisements are issued calling for applications, date, time and place for scrutiny of application, counseling and preparation of merit list and date of issuance of appointment letters are not fixed at hand and made known to public. This Court has found that in some cases in some districts this is a practice that is followed. That makes the system of selection transparent. Here, why was this not followed is not known. Here, the merit list was prepared in January, for two months there was no activity, then suddenly on 08th March activities start and between 8th to 10th of March postal notices (did as U.P.C.) are issued, counseling held and appointment letters issued. Appointment is, admittedly, denied to much more meritorious candidates. If this is not fraud, I wonder what it is. In connection of U.P.C., all I can say is that a similar plea was taken in the case of Gadakh Yashwantrao Kankarrao Vs. E.V. alias Balasaheb Vikhe Patil and Ors. since reported in AIR 1994 Supreme Court 678. In paragraph 59, this is what the Apex Court has held:- “….It is also of significance that Gadakh alleges having sent a letter dated 16th May, 1991 under certificate of posting to the Maharashtra Times Office disputing correctness of the news-item (Exh.90). The receipt of that letter by the addressee is denied and the likelihood of its dispatch by Gadakh is - 6 - extremely doubtful since it was not sent by registered post and a certificate of posting being easy to obtain is not reliable. Expense being immaterial in that election for both sides, it is extremely unlikely that Gadakh would send such a letter under certificate of posting and not by registered post….” Obviously, the plea of U.P.C. was fraudulent. No letters can be delivered within 24 hours, it was only applied to deny legitimate candidates their appointment and give unfair advantage to the petitioners. In such a situation, while not interfering with the order of the B.D.O. and the Principle Secretary, Department of Human Resources, Government of Bihar, Patna, I modify their order that the Panchayat Samiti would fix a fresh date for counseling. Notices in this regard would be sent by registered post to the candidates, as also would be disclosed at District Level, Block Level and Panchayat Level. The date so fixed would be two weeks from the date when these notices are dispatched. The Selection Committee as a whole would then conduct the counseling. The concerned B.D.O. would also be present to note that candidates turning up for counseling are duly entertained and are not returned and then a false plea of being absent is taken up. After counseling, appointment letters by registered post would be issued to the selected meritorious candidates, giving them 10 days to join as per rule. Simultaneously, list of selected candidates with - 7 - their respective marks and reason for non-selection of the rest must simultaneously be displayed at District Level, Block Level and Panchayat Level under the signature of the Mukhiya, Panchayat Secretary and the B.D.O. It is only if they fail to join or refuse to join, the next in the panel would be considered as per roaster for appointment. The steps shall be taken by the Panchayat Samiti immediately and the entire process has to be concluded within one month from today. The services of the petitioners shall be deemed to have been terminated the day the B.D.O. passed orders i.e. from 14.04.2008. With these observations and directions, the writ petition is disposed of. Trivedi (Navaniti Prasad Singh, J.)