IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.869 of 2010 URVASHI SAH, DAUGHTER OF HARI JI SAH, RESIDENT OF VILLAGE NEURENIA, P. S. MIRGANJ, DISTRICT- GOPALGANJ. … RESPONDENT- APPELLANT. Versus 1. THE STATE OF BIHAR THROUGH PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA. 2. THE PRINCIPAL SECRETARY, PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT, GOVT. OF BIHAR, PATNA. 3. THE DISTRICT MAGISTRATE, GOPALGANJ. 4. THE DISTRICT SUPERINTENDENT OF EDUCATION, GOPALGANJ. 5. THE BLOCK DEVELOPMENT OFFICER, HATHUA-1, DISTRICT GOPALGANJ. 6. THE BLOCK EDUCATION EXTENSION OFFICER, HATHUA- 1, GOPALGANJ. 7. GRAM PANCHAYAT RAJ SAUREJI, HATHUA, P. S. HATHUA, DISTRICT- GOPALGANJ THROUGH ITS MUKHIYA. 8. THE SECRETARY, GRAM PANCHAYAT RAJ, SAUREJI, HATHUA, P. S. HATHUA, DISTRICT GOPALGANJ. 9. THE DISTRICT TEACHERS EMPLOYMENT APPELLATE AUTHORITY, GOPALGANJ. … RESPONDENTS-RESPONDETNS. 10. BINITA KUMARI, WIFE OF SRI ATUL KUMAR SRIVASTAVA, RESIDENT OF VILLAGE- P. O. MANIKPURA, P. S. & DISTRICT GOPALGANJ. … PETITIONER- RESPONDENT With LPA No.660 of 2010 1. SHRI DIGVIJAY KUMAR MISHRA S/O SRI KRISHNA MISHRA R/O VILL.- NARAINIA, P.S.- MIRGANJ, DISTT.- GOPALGANJ. … RESPONDENT- APPELLANT Versus 2 1. THE STATE OF BIHAR THROUGH PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA 2. THE PRINCIPAL SECRETARY, PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT, GOVT. OF BIHAR, PATNA 3. THE DISTRICT MAGISTRATE, GOPALGANJ 4. THE DISTRICT SUPERINTENDENT OF EDUCATION, GOPALGANJ 5. THE BLOCK DEVELOPMENT OFFICER, HATHUA-1, DISTT.- GOPALGANJ 6. THE BLOCK EDUCATION EXTENSION OFFICER, HATHUA-1, GOPALGANJ 7. GRAM PANCHAYAT RAJ SAUREJI, HATHUA, P.S.- HATHUA, DISTT.- GOPALGANJ THROUGH ITS MUKHIYA 8. THE SECRETARY, GRAM PANCHAYAT RAJ, SAUREJI, HATHUA, P.S.- HATHUA, DISTT.- GOPALGANJ 9. THE DISTRICT TEACHERS EMPLOYMENT APPELLATE AUTHORITY, GOPALGANJ . .. RESPONDENTS-RESPONDENTS 10. UPENDRA KUMAR S/O SRI JANAKDEO MISHRA R/O VILL.- NARAINIA, P.S.- MIRGANJ, DISTT.- GOPALGANJ. … PETITIONER-RESPONDENT ----------- For the appellants : Mr. Ashok Kumar Choudhary, Adv. : Mr. Anil Kumar Tiwari, Adv. ------ PRESENT : HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (12/05/2010) As per Mihir Kumar Jha, J. I.A. No. 4681 of 2010 Having heard learned counsel for the parties as also taking into account the facts and circumstances stated in this application, we are inclined to condone the 3 delay of three days in filing of the appeal ( LPA No. 869 of 2010). 2. I.A. No. 4681 of 2010 is accordingly disposed of. L. P. A. No. 869 of 2010 and L.P.A. No. 660 of 2010 3. As we have condoned the delay in preferring the appeal being L.P.A. No. 869 of 2010, we are also inclined to dispose of these two appeals at the admission stage itself. 4. In these two appeals the appellants have assailed the common order dated 18.2.2010 passed by the learned Single Judge in CWJC No. 14789 of 2009 and CWJC No. 14808 of 2009 whereby and whereunder the writ applications of respondent-writ petitioner Binita Kumari (CWJC No. 14789 of 2009) and Upendra Kumar ( CWJC No. 14808 of 2009) have been allowed and they have been directed to be reinstated with all consequential benefits. 5. Mr. Ashok Kumar Chaudhary, learned counsel appearing for the appellants in both these appeals has submitted that the learned Single Judge has failed to appreciate that the complaint filed by the respondents-writ petitioner was itself belated and barred by limitation and 4 as such the order passed by the District Teachers Employment Appellate Tribunal, Gopalganj (herein after referred as “the Tribunal”) in their favour was wholly unsustainable and consequently its review by the Tribunal at the instance of the appellants ought to have not been interfered by the learned Single Judge. 6. The facts which are essential to be noted in order to appreciate the aforementioned submissions of learned counsel for the appellants lies in a narrow compass. An advertisement was issued for filling up the post of Shiksha Mitra in which apart from the appellants-respondents and several others had filed their application and ultimately on 6.5.2005 the merit list / panel was prepared wherein the name of respondents- writ petitioner Binita Kumari was at Serial No. 2 whereas the name of respondent-writ petitioner Upendra Kumar was at Serial No. 5. There were two posts of Shiksha Mitra of general category but despite the respondents-writ petitioners being eligible and placed higher in panel were not appointed whereas the appellant- Urvashi Sah at Serial No. 12 and appellant Digvijay Kumar Mishra at Serial No. 15 were appointed on the post 5 of Shiksha Mitra. Thus on a complaint made by the respondents-writ petitioners, the appointment of the appellants was cancelled by an order dated 19.2.2007 and the said order on being assailed by them in CWJC No. 16132 of 2008 (by appellant Urvashi Sah) and CWJC No. 14801 of 2008 (by appellant Digvijay Kumar Mishra) was quashed by a direction to them to file an application before the Tribunal who was directed to pass an order in accordance with law within six weeks from the date of filing of such application. The Tribunal by a common order dated 14.8.2009 had held the appointment of the appellants to be bad by recording the following reasons. ^^mi;qZDr izLrqr rF;ksa ,oa lk{;ksa ds voyksduksijkUr vkSj tkapksijkUr ;g izrhr gS fd xzke iapk;r jkt laojsth ds lq[k&lqfo/kk lfefr }kjk fu;kstu izfdz;k esa misUnz dqekj dk uke ojh;rk esa 19 vad ojh; lwph esa dzekad 05 ij vafdr gS ftudk bUVjehfM,V esa 60 izfr'kr vad izkIr gS vkSj fnfXot; feJ dk bUVjehfM,V 59 izfr'kr vad izkIr gSA nksuksa dk osVst 19 gS fQj Hkh bUVjehfM,V dk vk/kkj gksus dkj.k misUnz dqekj dk ojh;rk es/kklwph esa vf/kd gksrk gSA vr% misUnz dqekj dk fu;kstu U;k;klaxr ,oa fof/klEer gksxkA blh izdkj fouhrk dqekjh ,oa moZ'kh lkg dk osVst 15 gS fdUrq ojh;rk ;ksX;rk bUVjehfm,V esa moZ'kh Hkko dks 566 vad izkIr gS tcfd fouhrk dqekjh dk izkIrkad 568 gS tks moZ'kh Hkko ds izkIrkad ls T;knk gksrk gSA vr% moZ'kh Hkko ds LFkku ij fouhrk dqekjh dk fu;kstu U;k;laxr ,oa fof/klEer gksxkA 6 xzke iapk;r jkt laojsth iz[k.M&gFkqvk ds lq[k&lqfo/kk lfefr }kjk fu;kstu o'kZ 05 esa f'k{kkfe= ds in ij fd;k x;k fnfXot; dqekj feJ ,oa moZ'kh Hkko dk fu;kstu voS/k] cscqfu;kn ,oa fujk/kkj gS rFkk buds LFkku ij misUnz dqekj ,oa fouhrk dqekjh dk fu;kstu djuk U;k;laxr ,oa fof/klEer gSA** 7. The order of the Tribunal was acted upon in the case of both the respondent-writ petitioners and they were appointed on the post of Panchayat Shikshak on 31.8.2009. On the basis of the order passed by the Tribunal again on 3.9.2009 the services of the respondent- writ petitioners were terminated on 7.9.2009. It was this order dated 7.9.2009 which was assailed by the both respondent-writ petitioners in separate writ applications and have been disposed of by the learned Single Judge wherein it has been recorded as follows:- “……..the appellate tribunal had passed an order in favour of the petitioners but that was reviewed by the impugned orders. Petitioners have challenged the impugned order on the ground that it is illegal, arbitrary and without jurisdiction for the reason that District Teachers' Employment Appellate Tribunal, which is a creation of statute, has not been vested with any review jurisdiction under Bihar Panchayat Teachers (Appointment & Service Conditions) Rules, 2008. Rule 18 of 2008 rules, vests the tribunal only with Appellate power. 7 Since it is not vested with review jurisdiction, the impugned order is illegal and without jurisdiction. Respondents in both the writ applications being represented by Mr. Ashok Choudhary. Learned counsel for the respondents has submitted that in ordinary circumstances, any authority or tribunal is debarred from exercising review jurisdiction, in case it is not vested with such power under the statute, but in exceptional circumstance, where there is misrepresentation of facts, suppression of facts or any material due to which the authority would have been misled in deciding the matter and recording findings, order can be reviewed by the Tribunal, even though it is not vested with review jurisdiction. Since present case is an example of suppression of material facts, due to which order had been passed by Tribunal in favour of the petitioner reviewing earlier order. There is no illegality in the order. In support of this contention, he has placed reliance on a decision reported in 2010(1) PLJR 499, specially, paragraphs-11, 12 & 13 of the said decision. In paragraphs- 12 & 13 reference of two Supreme Court decisions has been given in the judgment and the finding is that a constitutional , statutory or administrative authority who have to decide a lis have the power to recall their orders and judgments, if they are obtained by fraud, as fraud and justice never dwell together (Fraus et 8 jus nunquam cohabitant). I find that the judgment which has been relied upon by the respondents, in fact has no application in the facts of present case. …..” 8. Thus, the learned Single Judge held that the Tribunal had no power to review its own order on merits and that the application of the appellants by the Tribunal was rightly rejected on first occasion by order dated 14.8.2009 which could not have been reviewed by the impugned order dated 3.9.2009. 9. Mr. Ashok Kumar Chaudhary, learned counsel for the appellants had however tried to justify the order passed by the Tribunal on 3.9.2009 by taking a plea that it was in fact only a procedural review inasmuch as the Tribunal had earlier occasion while passing the order dated 14.8.2009 had failed to take into account that the appointment on the post of Shiksha Mitra could be assailed by any aggrieved person within a fixed period of seven days only and since the respondents-writ petitioners had never assailed their appointment within the prescribed period the resultant action taken for termination of the services of the appellants was wholly without jurisdiction 9 and as such the Tribunal had rightly reviewed its earlier order dated 14.8.2009. 10. In the considered opinion of this Court, the appellants are blowing hot and cold in the same breath. At one hand, it is their claim that their appointments on the post of Shiksha Mitra were cancelled by the District Superintendent of Education on the ground that the respondents-writ petitioners have not only secured higher marks to them but also placed above in the panel were wrongly ignored in the appointments of Shiksha Mitra. It is they who had moved this Court and got the matter remanded by order dated 17.2.2009 in CWJC No. 14801 of 2008 and CWJC No. 16132 of 2008. Thus, once the appellants accepts that it is they who had moved the Tribunal by filing their application in terms of direction given in the order dated 17.2.2009 they cannot be now allowed to take any plea in the delay of complaint filed by the respondents-writ petitioners. The complaint of the respondents-writ petitioners had already succeeded by termination of service of respondents-writ petitioners by the order dated 17.2.2009 and therefore such delay could 10 not have been crucial much less fatal so as to vest jurisdiction to the Tribunal to review its earlier order in favour of the respondents-writ petitioners. The Tribunal is a creature of the statute and its jurisdiction is wholly circumscribed under Section 18 under which the Tribunal can only decide the complaint filed before it but has been given no power to review its decision. 11. The Tribunal on the earlier occasion infact had conclusively held that the appellants were not only placed much below in the panel to the respondents-writ petitioners but even otherwise were having lesser marks in the qualifying intermediate examination. The Tribunal had further recorded that it was impossible to have accepted that only two appellants had received the call of counseling to the exclusion of the respondents-writ petitioners and others placed above in the panel. All these given reasons could not have been reviewed on merits on a new plea adopted by the appellants who themselves were applicants before the Tribunal even in the first round after remand of the matter by this Court. 11 12. This Court, therefore is satisfied that there is no error apparent in the order dated 14.8.2009 which could have required a reconsideration by the Tribunal in exercise of its non-existent power of review. 13. Mr. Chaudhary, in fact, wanted leave of this Court for assailing the order passed in favour of the respondents-writ petitioners dated 14.8.2009 by the Tribunal but as we find that admittedly both the appellants were placed below not only in the panel but also had secured lesser marks in the qualifying intermediate examination, we would not accord leave to the appellants to unnecessarily reagitate the same matter. 14. That being so, we find no error in the impugned order and consequently, both these appeals, being devoid of any merit, are accordingly dismissed. However, there would be no order as to costs. (Dipak Misra, CJ.) (Mihir Kumar Jha, J.) Patna High Court Dated the 12th May 2010 NAFR/kanchan