Mukesh Kumar Yadav & Ors. vs The State Of Bihar & Ors.

Heard learned Senior Counsel for the petitioners and learned counsel appearing on behalf of the respondents.

By way of this writ application, the petitioners, who claim to have been appointed as Panchayat Teachers in Gram Panchayat Raj, Telhar, Block Mahishi, District Saharsa, have prayed for issuance of the following reliefs:

By way of I.A. No. 01 of 2022, the petitioners have also sought for an amendment for adding a prayer to the main writ application, wherein the petitioners have prayed for quashing of Memo No. 05 dated 22.01.2022, issued by the Panchayat Secretary-cum-Member Secretary, Panchayat Teacher Employment Unit, Telhar, Block Mahishi, District Saharsa (Annexure-19 to the writ application), whereby the employment of the petitioners have been cancelled. The said prayer being consequential to the main reliefs, is being taken up for consideration along with the present writ application.

The brief facts, as emerging from the pleadings and the documents placed on record, are that the State Government framed the Bihar Panchayat Elementary Teacher (Employment and Service Conditions) Rules, 2006 (hereinafter referred to as “the 2006 Rules”) for appointment of Panchayat Teachers, wherein the procedure for employment was prescribed under Rule 9. The petitioners claim that, pursuant to the said Rules, applications were invited for appointment to the post of Panchayat Teacher in Gram Panchayat Raj Telhar, Block Mahishi, District Saharsa, and that the petitioners applied for the said posts. The relevant Rules have been brought on record by way of Annexure-2 to this writ application.

Applications were received for appointment in Gram Panchayat Raj Telhar, and a provisional merit list was prepared (Annexure-3 to this writ application). The District Appellate Authority recorded that 14 posts had been notified as per roster and that 532 applications had been received.

On 25.09.2006, a notice was published in a daily newspaper by the District Programme Coordinator, Sarva Shiksha Abhiyan, Saharsa, regarding verification of certificates at the Panchayat level (Annexure-4 to this writ application). Pursuant thereto, counselling / certificate verification was conducted by the Employment Unit from 04.10.2006 to 06.10.2006. The counselling / certificate verification for general category applicants was conducted on 04.10.2006. For backward class category the same was conducted on 05.10.2006, and for the remaining categories it was scheduled to take place on 06.10.2006. According to the record 255 candidates participated in the counselling. The petitioners assert that Respondent Nos. 13 to 17 did not appear in the said counselling. The private respondents, however, have questioned the manner in which the counselling was conducted (Annexure-4 and Annexure-12 to this writ application).

Further, an enquiry was conducted at the district level with regards to the counselling process in seven Panchayats, including Gram Panchayat Raj Telhar, by the Director, National Employment Scheme and the District Superintendent of Education. The enquiry report bears the signature of one member dated 11.11.2006, and that of another member dated 14.11.2006, by which a recommendation for fresh counselling in respect of Telhar Panchayat was proposed. The petitioners have stated that no notice of the said enquiry was given to the selected candidates. The enquiry report has been brought on record as Annexure-14 to this writ application and has also been referred to in the impugned order.

On 15.11.2006, the merit panel was published and one week time was granted for filing of objections. According to the record, no objection was received. Thereafter, the final panel of 255 candidates was published (Annexure-5 to this writ application), in which the names of the petitioners appeared, whereas the names of Respondent Nos. 13 to 17 did not appear. On 22.11.2006, the Employment Committee decided to complete the appointment process and to publish the selection list roster-wise on the basis of merit. Appointment letters were thereafter issued to the petitioners on 29.11.2006, and 30.11.2006. The petitioners were posted in different schools under the Panchayat and, according to the record, the joining date of the petitioners was 06.12.2006 (Annexure-6 to this writ application).

However, even after the issuance of the appointment letters, the District Magistrate, Saharsa, on 05.12.2006, issued directions to the Block Development Officers of the district for preparation of a fresh merit list for appointment of Panchayat Teachers. In the present writ application, the said communication is referred to as Memo No. 2679 dated 05.12.2006, whereas the impugned order refers to the same as Memo No. 267 (Annexure-7 to this writ application). It is noted that Respondent No. 8, in his counter affidavit, refers to the direction for preparation of a fresh merit list after fresh counselling as was directed in pursuance of Letter No. 2679 dated 08.12.2006, issued by the District Education Officer, Saharsa. Thereafter, on 18.12.2006, the District Superintendent of Education, Saharsa issued Letter No. 988 to the Block Development Officers, Block Education Officers and Panchayat Secretaries directing the preparation of a fresh merit list, which was endorsed by the Block Development Officer, Mahishi, for compliance. (Annexure-8 to this writ application).

Aggrieved by the aforesaid directions, the petitioners, along with others, approached this Court by filing C.W.J.C. No. 2498 of 2007, wherein, on 11.04.2007, this Court directed the concerned respondent authorities to maintain status quo (Annexure-9 to this writ application). During the pendency of the said writ application, Respondent Nos. 13 to 17 and others preferred Appeal No. 714 of 2009, before the District Appellate Authority. Further, they also approached before this Court in C.W.J.C. No. 6428 of 2009 (Lal Bahadur Singh & Ors. v. State of Bihar), which was decided on 20.05.2009 (Annexure-17 to this writ application).

On 05.10.2010, the District Appellate Authority, Saharsa, passed an order in Appeal No. 714 of 2009 rejecting the claim of Respondent Nos. 13 to 17. It is the case of the petitioners that the said order was not challenged and therefore, had attained finality (Annexure-18 to this writ application). In the same year, the petitioners passed the departmental evolutionary examination, and consequently their salary was upgraded (Annexure-10 to this writ application).

On 03.08.2011, this Court disposed of C.W.J.C. No. 2498 of 2007. During the said proceeding, Lal Bahadur Singh, Prabhat Kumar, Dinesh Kumar, Amit Kumar Roy, Sanjay Paswan, Saraswati Kumari, Sanju Kumari and Saroj Kumari, among others, were impleaded as Respondent Nos. 12 to 20. The matter was remitted to the District Appellate Authority and the status quo prevailing as on 11.04.2007 was directed to be maintained, with a further direction that the payment of salary to the petitioners and/or to the intervenors will also be made in accordance with findings and the conclusion arrived at by the Authority. (Annexure-9 to this writ application).

Pursuant thereto, the matter was considered by the District Appellate Authority, Saharsa, in Appeal Case No. 72 of 2011, and vide order dated 21.12.2012, the appeal was allowed in favour of the petitioners and it was further recorded that the claim of Respondent Nos. 13 to 17 was not legally sustainable on account of want of vacancy (Annexure-12 to this writ application). Aggrieved by the aforesaid order, Respondent Nos. 13 to 17 approached before this Court in C.W.J.C. No. 8240 of 2013.

In the meantime, on 04.01.2014, the District Programme Officer issued a certificate certifying the petitioners as trained teachers with effect from 04.01.2014 (Annexure-11 to this writ application). On 07.10.2014, in response to an application under the Right to Information Act, 2005, memo no. 2087 was issued stating that memo no. 2676 dated 09.12.2006, which was referred to in the appointment letters of the private respondents, did not relate to appointment of Panchayat Teachers (Annexure-15 and Annexure-16 to this writ application).

C.W.J.C. No. 8240 of 2013 was withdrawn vide order dated 10.08.2018, with the liberty to the private respondents to file an appeal before the State Appellate Authority (Annexure-13 to this writ application). Pursuant to the liberty so granted, Respondent Nos. 13 to 17, filed Appeal No. 597 of 2018 before the State Appellate Authority, Bihar, Patna.

The State Appellate Authority, by order dated 01.11.2021 passed in Appeal No. 597 of 2018 (Annexure-1 to the writ application), allowed the appeal preferred by Respondent Nos. 13 to 17, held the counselling process to have been vitiated and the appointments made on the basis thereof to be illegal. Consequent thereto, the State Appellate Authority upheld the appointment given to Respondent Nos. 13 to 17.

The impugned order records, inter alia, the report of a nominated member of the Selection Committee, Md. Sarfuddin, Assistant Teacher, who had been nominated by the District Education Officer by Memo No. 634 dated 05.08.2006, to the effect that the members of the Employment Committee and the Panchayat Secretary were not present during the counselling and that the counselling was conducted at the residence of the Mukhiya. The State Appellate Authority further considered the comparative marks of the candidates and recorded those certain candidates who had been appointed, including the petitioners, had lower marks than the appellants before it. It also considered the district-level enquiry and the recommendation for fresh counselling, the directions issued by the District Magistrate on 05.12.2006, and by the District Superintendent of Education on 18.12.2006, and the endorsement was made by the Block Development Officer, Mahishi. Further it also recorded its finding regarding the competence of the authorities and the action taken thereafter. It was recorded that a fresh merit list had been prepared and signed by five members of the Appointment Committee, in which Respondent Nos. 13 to 17 were placed higher than the petitioners, and that appointment letters had been issued to the private respondents and their joining were duly accepted.

Consequent to the order dated 01.11.2021, the Panchayat Secretary-cum-Member Secretary, Employment Unit, on 13.01.2022, addressed a letter to the District Programme Officer (Establishment), Saharsa, stating that upon verification of the records relating to the year 2006, it was found that Respondent Nos. 13 to 17 had not been appointed by the Employment Unit. The petitioners also obtained a certified copy of the issuing register in which, according to them, the memo / letter number relating to the appointment of the private respondents was not mentioned in any manner whatsoever. (Annexure-20 and Annexure-21 to this writ application).

Thereafter, on 22.01.2022, memo no. 05 was issued by the Panchayat Secretary-cum-Member Secretary, Employment Unit, Telhar, whereby the employment of the eight petitioners was terminated (Annexure-19 to this writ application), and on 24.01.2022, memo no. 06 was issued by which Respondent Nos. 13 to 17 were appointed in compliance to the order dated 01.11.2021.

Aggrieved by the order dated 01.11.2021, the petitioners have preferred the present writ application. During the pendency of the present case, memo no. 05 dated 22.01.2022 was issued by which the service of the petitioners was terminated. The petitioners, therefore, had filed an I.A. No. 01 of 2022 seeking quashing of the said memo by which the services of the petitioners had been terminated

Learned Senior counsel for the petitioners submits that the impugned order has been assailed on the ground that the District Magistrate and the District Superintendent of Education had no jurisdiction under the 2006 Rules to interfere with the process of appointment. According to rule 18, the relevant statutory authority happens to be the Block Development Officer and, therefore, the direction of the District Magistrate dated 05.12.2006, was without jurisdiction and cannot form the basis for reopening the appointment process. It was further submitted that the State Appellate Authority itself recorded that the Block Development Officer was the competent authority.

Learned Senior counsel for the petitioner further contends that the State Appellate Authority relied upon the enquiry conducted in November 2006 and the report dated 11.11.2006/14.11.2006 (Annexure-14 to this writ application), without affording the petitioners an adequate opportunity to meet the materials relied upon by the respondent authority. The petitioners had already been issued appointment letters on 29.11.2006 and 30.11.2006 and had joined thereafter.

It has been further submitted that Respondent Nos. 13 to 17 had not appeared for certificate verification during the counselling held from 04.10.2006 to 06.10.2006 and had not raised any objections to the final panel published thereafter. Moreover, the claim of respondent nos. 13 to 17 had been rejected by the District Appellate Authority on 05.10.2010 in Appeal No. 714 of 2009 (Annexure-18 to this writ application), and the same was not challenged. The subsequent Appeal No. 597 of 2018 was, therefore, not maintainable and was barred by the principles of res judicata and finality. The District Appellate Authority, pursuant to the order of this Court dated 03.08.2011 in C.W.J.C. No. 2498 of 2007, considered the matter afresh in Appeal Case No. 72 of 2011 and by order dated 21.12.2012 (Annexure-12 to this writ application) rejected the claim of Respondent Nos. 13 to 17. The State Appellate Authority erred in setting aside the said order by holding that the District Appellate Authority was not empowered to examine the justification of the action taken by the competent authority.

The Senior counsel further states that the appointment letters of the private respondents refer to Letter No. 2676 dated 09.12.2006 of the District Magistrate, whereas the response under the Right to Information Act, 2005 (Annexures-15 and 16 to this writ application), categorically states that the said letter did not relate to appointment of Panchayat Teachers. By communication dated 13.01.2022, the Panchayat Secretary-cum-Member Secretary, Employment Unit, informed the District Programme Officer that, upon verification of the records of the year 2006, the names of the private respondents did not find a place in the list showing appointment made by the Employment Unit.

It has been brought to the notice of this court that the petitioners have been serving since the year 2006, underwent a departmental evolutionary examination in 2010, and were certified as trained teachers with effect from 04.01.2014, and hence in these circumstances they ought to have been considered for appointments which were unsettled.

In support of the aforesaid submissions, learned counsel for the petitioners has placed reliance upon the decision of this Court in Ajay Hansraj & Ors. v. The State of Bihar & Ors., C.W.J.C. No. 16333 of 2008, with regard to the jurisdiction of the District Magistrate and the District Superintendent of Education under the 2006 Rules. The Senior counsel for petitioners further relied upon Md. Nasiruddin Ansari & Ors. v. The State of Bihar & Ors., C.W.J.C. No. 7347 of 2010, with regard to the statutory character and finality of the appellate mechanism and upon Lal Bahadur Singh & Ors. v. The State of Bihar & Ors., C.W.J.C. No. 6428 of 2009, with regard to the jurisdiction of the Appellate Authority in matters relating to appointment.

Reliance has also been placed on the case of State of U.P. v. Singhara Singh reported in AIR 1964 SC 358, wherein, following the principle laid down in Taylor v. Taylor (1875)1 Ch.D 426, the Hon’ble Supreme Court has held that where a statute confers a power to be exercised in a particular manner, the thing must be done in that manner or not at all, and other modes of performance are necessarily forbidden. It is submitted that, since Rule 18 of the 2006 Rules vests the power to receive complaints and interfere with the employment process exclusively in the Block Development Officer, any exercise of that power by the District Magistrate or the District Superintendent of Education was inherently without jurisdiction and could not be validated merely because the underlying order was otherwise found to be justified.

It is submitted that the petitioners, having rendered service for over fifteen years without any personal finding of fraud against them, should not be terminated on the strength of any enquiry conducted without any notice being served to them.

Further, it has been submitted that in case of Kalpana Rani v. State of Bihar & Ors., having LPA 1569 of 2010, a Full Bench of this Court vide judgement dated 15/05/2014, held that, under the administrative and statutory framework governing recruitment of Panchayat teachers, executive functionaries such as the District Magistrate do not possess jurisdiction to directly interfere with, alter, or cancel selection lists or appointments, such power being reserved exclusively to the designated statutory authority under the Rules. Moreover, even in the case of Suresh Ram v. State of Bihar & Ors., reported in 2022 (2) PLJR 80, the Bench of this Court had affirmed the principle laid down in Kalpana Rani (supra) and held that the statutory machinery created for appointment and service conditions of Panchayat teachers cannot be bypassed or overridden by superior executive officers not designated as the competent authority under the Rules."

Per contra, the counsel for the respondent State submits that the petitioners were appointed in the year 2006 under the 2006 Rules. Objections were, thereafter, raised against the merit list on account of irregularities in the selection process; and that, pursuant thereto, the District Education Officer, Saharsa directed the Block Development Officers vide Letter No. 2679 dated 08.12.2006 to prepare a fresh merit list after fresh counselling. It is further submitted that C.W.J.C. No. 2498 of 2007 was disposed of on 03.08.2011, by remitting the matter to the District authority. Thereafter, Appeal Case No. 72 of 2011 was allowed. Respondent Nos. 13 to 17 challenged the said order in C.W.J.C. No. 8240 of 2013 and, pursuant to the liberty granted vide order dated 10.08.2018, Respondent nos. 13 to 17 preferred an appeal before the State Appellate Authority, which passed the impugned order after hearing the parties. It is also stated that, in compliance with the impugned order, the Employment Unit, Telhar, terminated the services of the eight petitioners vide Memo No. 5 dated 22.01.2022, and appointed Respondent Nos. 13 to 17 vide Memo No. 6 dated 24.01.2022. Since the appointments had been made by the Employment Unit, Telhar, the said Unit was the custodian of the relevant records and competent to furnish the same as and when required.

Learned counsel appearing on behalf of Respondent Nos. 13 to 17 has submitted that the impugned order is exhaustive, well-enquired, just, proper and in accordance with law and does not warrant interference. It is submitted that in pursuant to some conspiracy, the private respondents were debarred from appointment despite being at the top of the merit list, in order to accommodate candidates allegedly favoured by the then Mukhiya. Upon complaints of large-scale bungling and forgery, the District Magistrate, Saharsa, ordered preparation of a fresh merit list and fresh counselling, following which the private respondents were appointed on the basis of their position in the merit list and the roster. The District Magistrate has hence, acted within his competence, as the Head of the District, in ordering an enquiry and preparation of a fresh merit list,

It is further submitted on behalf of Respondent Nos. 13 to 17 that the then competent authority, namely the Block Development Officer, ensured preparation of the fresh merit list in accordance with law, pursuant to which the private respondents, having higher marks, were placed higher in the respective roster and appointed against the posts which, according to them, became available upon termination of the illegally appointed candidates, including the petitioners. It has been next submitted that the order of the District Appellate Authority dated 21.12.2012, was illegal and that the petitioners had concealed the fact that they stood removed and continued only on the strength of the status quo order passed by this Court. The reference to the same letter number in the appointment letters was merely a clerical mistake and no competent authority raised any suspicion regarding their appointment.

Further it has been contended that the impugned order was not passed merely on the basis of an ex parte enquiry report or the report dated 11.11.2006, as, according to the private respondents, all such aspects were extensively considered by the State Appellate Authority. Pursuant to the impugned order, the private respondents have joined the schools and are discharging their duties.

Having heard learned counsel for the parties and upon perusal of the materials on record, the questions that fall for consideration before this Court are enunciated hereunder:

At the outset, it would be apposite to notice the statutory framework. The appointment of Panchayat Teachers in the year 2006 was governed by the 2006 Rules (Annexure-2 to this writ application). Rule 9 of the said rules prescribes for the procedure of employment of Panchayat Teachers. Rule 18 of the 2006 Rules stipulates the mechanism for raising grievances/complaints relating to the employment of Panchayat Teachers. It is the specific case of the petitioners, that the power to decide such complaints was vested in the Block Development Officer and not in the District Magistrate, the District Superintendent of Education or any other district authority. The impugned order itself records that, under the Rules, the Block Development Officer was the competent authority and that the District Magistrate was not the authority competent to decide complaints.

The statutory position, however, had undergone a subsequent development. By Notification No. 3716 dated 23.10.2008, issued by the Human Resources Development Department, Government of Bihar, the District Teachers Employment Appellate Tribunal was constituted for adjudication of disputes relating to the employment of Panchayat Teachers. Clause 15 of the said notification provided that no appeal would lie against an order of the Tribunal before any other authority, subject to the writ jurisdiction of this Court. Subsequently, Rule 18 of the Bihar Panchayat Elementary Teacher (Employment and Service Conditions) Rules, 2006 was substituted by Notification No. 1056 dated 03.07.2009, providing the statutory mechanism for adjudication of grievances relating to the employment and service conditions of Panchayat Teachers.

In Lal Bahadur Singh & Ors. v. The State of Bihar & Ors., C.W.J.C. No. 6428 of 2009, decided on 20.05.2009, this Court considered the scope of the appellate mechanism concerning appointment of Panchayat Teachers and held that the jurisdiction of the Appellate Authority extended to “matters related to appointment”. The expression “appointment” was construed broadly to include matters connected with and consequential to appointment, including entitlement to salary. The Court further recognised that, the Appellate Authority having been constituted at the district level, factual issues arising from the service records of the concerned teachers could also be examined by the said Authority. The aforesaid decision, therefore, elucidates the scope of the appellate jurisdiction in matters relating to appointment, though the question of the competence of the original authority has to be determined with reference to the statutory regime applicable when the original action was taken.

Insofar as the first issue is concerned, the appointment letters were issued to the petitioners on 29.11.2006 and 30.11.2006 and they joined on 06.12.2006. The directions of the District Magistrate dated 05.12.2006, and of the District Superintendent of Education dated 18.12.2006 (Annexures-7 and 8 to this writ application) followed thereafter. The variance in the number and date of the communication attributed to the District Magistrate, noticed hereinabove, does not, in the view of this Court, affect the question of law. It is not disputed that, under the 2006 Rules, the authority competent to deal with complaints relating to the employment process is the Block Development Officer. The controversy is therefore not as to the identity of the competent authority, but as to the consequence of the District Magistrate and the District Superintendent of Education having stepped in.

It is expedient to state that in the case of Ajay Hansraj & Ors. v. The State of Bihar & Ors., C.W.J.C. No. 16333 of 2008, the petitioners had challenged the order dated 24.07.2008, of the District Magistrate, Jehanabad, cancelling their appointments as Panchayat Teachers, the consequential order of the District Superintendent of Education-cum-District Programme Coordinator, Sarva Shiksha Abhiyan, contained in Memo No. 1666 dated 07.08.2008, and the termination order of the Mukhiya, Gram Panchayat Sewnan, contained in Memo No. 20 dated 13.09.2008, on the ground that the appointments were cancelled without opportunity of hearing and that, under the 2006 Rules, neither the District Magistrate nor the District Superintendent of Education had jurisdiction. Relying on the decisions rendered in Shyam Babu Kumar vs. State of Bihar & Others, reported in 2008 (4) PLJR 132 and Sunil Kumar Ojha & Others vs. State of Bihar & Others reported in 2009 (3) PLJR 48, this Court held that the findings therein fully covered the case and quashed all three orders, holding that the order of the Mukhiya, passed in compliance with the direction of an authority having no jurisdiction, was also illegal.

Furthermore, in Md. Nasiruddin Ansari & Ors. v. The State of Bihar & Ors., C.W.J.C. No. 7347 of 2010, the principal question was whether an order passed by the District Primary Panchayat Teachers Appellate Authority under Rule 18 of the Bihar Primary Teachers (Appointment and Condition of Service) Rules, 2006 (as the Rules are described therein) can be interfered with by any authority at the district level, namely the District Superintendent of Education, the District Education Extension Officer, the District Magistrate-cum-Collector, the Subdivisional Officer or the Block Development Office. It was held that, clause 15 of Notification No. 3716 dated 23.10.2008, having provided that no appeal lies against the order of the Tribunal to any authority (subject to the writ jurisdiction of the High Court), the order under Rule 18 is final and binding on all concerned, including the District Magistrate and the District Superintendent of Education. The Tribunal, though manned by officers who may be junior in rank to other officers of the State, is an independent statutory authority and is not subservient to them. In the said case, the Hon’ble Single Judge while relying upon the decision of a Bench of five Judges of the Supreme Court in Bhopal Sugar Industries Ltd. v. Income Tax Officer, Bhopal, AIR 1961 SC 182, allowed the said writ petition and the respondents including the District Superintendent of Education and the Subdivisional Officer were directed to implement the order of the Tribunal forthwith, and orders issued in conflict with it were quashed.

The case of Ajay Hansraj (supra) squarely holds that neither the District Magistrate nor the District Superintendent of Education has jurisdiction to pass such orders under the 2006 Rules. Md. Nasiruddin Ansari (supra), though arising on a different facet namely, the finality of an order of the Appellate Authority as against district-level functionaries proceeds on the same underlying premise that the statutory mechanism created by the Rules cannot be displaced or overridden by the District Magistrate or the District Superintendent of Education. This Court finds itself in respectful agreement with the principle so stated, and the reliance of learned senior counsel for the petitioners on the said decisions is, to that extent, well founded.

At this stage, this Court holds that the principle laid down in the case of Purtabpore Co. Ltd. vs. Cane Commissioner of Bihar & Ors., reported in AIR 1970 SC 1968, is well propounded wherein the Hon’ble Apex Court had succinctly held that when a statute confers a power on a particular authority, the said authority alone must exercise that power. Since the complaints in the present case was not decided by the competent authority, the question of infirmity thus arose.

Where a statute vests a power in a specified authority, the legality of an order cannot be examined by segregating it from the source of the power; the impugned order itself accepts that the District Magistrate was not the competent authority. The merit of the underlying complaint cannot, by itself, supply the jurisdiction which the Rules withhold. The impugned order further records that the Block Development Officer, Mahishi endorsed the letter of the District Superintendent of Education dated 18.12.2006, for compliance and holds that the order was ratified by the competent authority. Respondent Nos. 13 to 17 asserts that the Block Development Officer ensured preparation of the fresh merit list.

Whether the endorsement amounted to an independent exercise of the Block Development Officer’s own statutory power on the complaints received, after application of mind, is a disputed question of fact. The State Appellate Authority answered it by observing that a contrary conclusion would be a presumption; but a conclusion that the Block Development Officer did apply his mind requires a foundation in the record. Further, while the impugned order proceeds on the footing that the Block Development Officer was the competent authority, Respondent No. 8 states in his counter affidavit that the appointment was made by the Employment Unit, Telhar. These aspects have not been examined with care and diligence, thus, affecting the livelihood of the parties in the present case.

This Court, however, does not lose sight of the fact that the complaint of irregularity in the counselling was not a frivolous one. It rested on the report of a nominated member of the Selection Committee, and on the enquiry conducted at the district level. If established, such irregularities would be serious. The question is not whether the allegations could be examined, but by whom and in what manner.

Insofar as the second issue is concerned, the enquiry report (Annexure-14 to this writ application), was signed by one member on 11.11.2006, and by another on 14.11.2006. The petitioners state that no notice of the enquiry was ever given to the selected candidates or to the Employment Unit. The counter affidavits filed on behalf of the respondents also do not controvert such submission made by the petitioners. On the other hand, Respondent Nos. 13 to 17 state that the impugned order was not passed only on the basis of the ex parte report and that all aspects have been dealt with by the State Appellate Authority.

The State Appellate Authority relied upon that report to record that the counselling register was “proved to be a forged one” and that the persons who had higher marks were marked to be absent. A finding of forgery against a public record, with the consequence of terminating the petitioners, that too after about fifteen years, is undoubtedly a matter of civil consequence.

It is noted that the petitioners were represented before the State Appellate Authority, as recorded in the appearance of counsel on their behalf in that appeal. However, the portions of the impugned order placed before this Court do not indicate that the enquiry material was placed before the petitioners for their response or that they were permitted to test it. To that extent, the grievance of the petitioners has substance. Such a finding, having civil consequences, could not appropriately have been relied upon against the petitioners without placing the material before the petitioners and affording them with an effective opportunity to explain or rebut the same. Thus, the same being in contravention to the most underlying principle of administrative law, i.e. natural justice.

The Hon'ble Supreme Court in the case of D.K. Yadav vs J.M.A. Industries Ltd., reported in (1993) 3 SCC 259, enumerated the cardinal principle of reasonable opportunity of being heard. The Court stated that the major advantage of this principle is the prevention of an arbitrary action on behalf of the authority while adjudicating a case. The Court discussed the principles of reasonableness, non-arbitrariness and natural justice under Article 14 of the Constitution of India, 1950 observing that:

On a reference to the fact of the present case, it is noted that in C.W.J.C. No. 2498 of 2007, this Court remitted the matter to the District Appellate Authority. As recorded in the order of the District Appellate Authority dated 21.12.2012, the Authority was directed to examine the validity of the employment, its continuity and the termination, and to pass an appropriate order. The District Appellate Authority examined the original record produced by the Employment Unit and recorded, inter alia, that 255 of the 532 applicants had attended the counselling, and that Respondent Nos. 13 to 17 were absent. Further no objection was filed against the merit list published on 15.11.2006 and hence, the appointment letters were issued on 29.11.2006 and 30.11.2006 to the named petitioners. It was further observed that the absence of a teacher representative in certain meetings did not vitiate the decision of the Employment Committee.

However, State Appellate Authority was pleased to set aside the aforesaid order in Appeal No. 597 of 2018, by holding that the District Appellate Authority was a successor forum to the Block Development Officer and was not its appellate authority. Therefore, was not empowered to examine the justification and the conduct of the Block Development Officer. This Court finds it difficult to reconcile the aforementioned holding with the direction of this Court dated 03.08.2011, under which the District Appellate Authority was required to examine the aspects relating to appointment/ employment meticulously. An authority acting under a remand from this Court exercises the jurisdiction so conferred, and its competence to do so could not have been discarded in appeal without noticing the order of remand.

It is equally true that Respondent Nos. 13 to 17 were granted liberty on 10.08.2018 in C.W.J.C. No. 8240 of 2013 (Annexure-13 to this writ application), to prefer an appeal before the State Appellate Authority. The State Appellate Authority was therefore entitled to re-examine the findings of the District Appellate Authority on merits, and on the materials available on record. This exercise, however, had to be undertaken on merits by following due process of law.

The petitioners allege that the appointment letters of Respondent Nos. 13 to 17 are forged inasmuch as they refer to a letter of the District Magistrate which, according to the information supplied under the Right to Information Act, 2005, does not relate to appointment (Annexures-15 and 16 to this writ application), and the issuing register of the Panchayat does not reflect the memo/letter number of their appointment (Annexure-21 to this writ application). The Employment Unit itself stated on 13.01.2022, that the private respondents were not appointed by the unit (Annexure-20 to this writ application). The private respondents contends that the same happens to be clerical mistake and that no competent authority has suspected their appointment. This undoubtedly is a disputed question of fact, which this Court cannot assess. However, it is noteworthy that, after the said letter dated 13.01.2022, Memo No. 05 dated 22.01.2022, terminating the petitioners and Memo No. 06 dated 24.01.2022, appointing the private respondents, were issued by the Employment Unit in an influx of few days.

It is needless to point out that the above-mentioned aspects are disputed questions of fact which, in the present case, cannot be conclusively determined in the present writ proceedings in an appropriate manner on the basis of affidavits alone. So far as Memo No. 05 dated 22.01.2022, is concerned, it has been issued solely in compliance of the impugned order which is under challenge and it cannot survive independently without that order.

Equally, an allegation of irregularity, however serious, cannot be accepted without a fair adjudication by a competent authority who is bound to follow the principles of natural justice. Considering the facts that the complaint was neither addressed by a competent authority nor the principles of natural justice was followed by the State Appellate Authority, insofar as, providing relevant materials to the petitioners to prepare their defence are concerned, the impugned order thus suffers from infirmity. Hence, to meet up with such shortcomings to the facts of the present case, it is left open for the State Appellate Authority to conduct a meticulous scrutiny of the disputed facts by way of fresh adjudication of the appeal.

In view of the findings recorded hereinabove, it transpires as follows:

In light of the findings mentioned hereinabove this Court is of the considered that the impugned order dated 01.11.2021, passed by the State Appellate Authority, Bihar, Patna, in Appeal No. 597 of 2018, suffers from infirmity and hence, cannot be sustained in its present form.

This Court, however, is equally conscious that the allegations of irregularities in the counselling process are serious, and that the private respondents have a right to have their claim adjudicated. This Court, therefore, does not consider it appropriate either to uphold the appointments of the petitioners or to affirm the claim of the private respondents conclusively in this writ application. This Court, therefore, deems it fit and appropriate to remit the matter for fresh consideration. It is clarified that the observations made hereinabove by this court, are confined only to the consideration of the correctness of the impugned order under challenge.

In the facts and circumstances of the present case as expressed hereinabove the order dated 01.11.2021, passed by the State Appellate Authority, Bihar, Patna, in Appeal No. 597 of 2018 (Annexure-1 to this writ application) is hereby quashed and set aside.

It is further directed that Appeal No. 597 of 2018, is remitted to the State Appellate Authority for fresh consideration and the said Authority is expected to render a reasoned decision in accordance with law, after affording an opportunity of hearing to all concerned parties, including the petitioners and Respondent Nos. 13 to 17. The petitioners shall be supplied with the copies of the enquiry report(s) and other materials so as to enable them to prepare their respective defence.

The State Appellate Authority shall decide the appeal afresh within a period of three months from the date of receipt/production of a copy of this order. 61. Needless to say, Memo No. 05 dated 22.01.2022 (Annexure-19 to this writ application), being consequential to the impugned order, is also quashed and set aside. As an interim arrangement, pending fresh consideration of Appeal No. 597 of 2018, the petitioners shall be permitted to continue as Panchayat Teachers. The appointment of Respondent Nos. 13 to 17 pursuant to Memo No. 06 dated 24.01.2022, shall also not be disturbed during the said period. The continuance of employment of both sets of parties shall remain, subject to the final decision to be rendered in Appeal No. 597 of 2018. No recovery shall be effected from either set of parties in respect of remuneration received for the period during which they have actually rendered service.

It is expressly made clear that nothing contained in this judgment shall be construed as an expression of opinion on the merits of the claims of the parties, and the same shall be considered as well as decided without prejudice, by the State Appellate Authority independently in accordance with law.

There shall be no order as to costs.

The writ application stands partly allowed to the extent indicated above.