Purshottam Kumar vs The State of Bihar

Mihir Kumar Jha, J.—Heard learned counsel for the parties. This Court has already dismissed the present writ application by an order dated 21.11.2013 with a direction to the respondents to comply the order passed by the District Teachers Employment Appellate Tribunal, Nalanda (hereinafter to be referred to as ''the Tribunal'') dated 18.9.2012 in Appeal No. 234 of 2011 because the respondent No. 7 on account of the interim order passed on 22.11.2012 had already suffered for a period over one year despite his being a better candidate on merit for his appointment on the post of Panchayat Teacher in the Physically Handicapped Category than the petitioner, such reasons for dismissing this writ application are now being recorded in this judgment.

As noted above, the petitioner has assailed an order of Tribunal dated 18.9.2012 in Appeal No. 234 of 2011. The aforesaid case was filed by respondent No. 7 assailing the appointment of the petitioner on the post of Prakhand Teacher on the ground of his (petitioner) being inferior candidate on merit in view of his having obtained only 53.66% marks in the qualifying examination as against the respondent No. 7 obtaining 56.55% marks. The Tribunal by the impugned order has upheld the challenge of the respondent No. 7 while setting aside the appointment of the petitioner with a consequential direction to consider the cases of all other eligible persons including Respondent No. 7 despite having higher marks in the category of visually challenged persons were left out from zone of consideration on account of illegality committed by the appointing unit namely Prakhand and its Prakhand Vikas Padadhikari (B.D.O.), Chandi.

Learned counsel for the petitioner has assailed the aforementioned order of the Tribunal primarily on the ground that if the respondent No. 7 did not respond to a notice published in the newspaper and did not appear before the appointing authority on the date fixed for verification of his certificates and testimonials, he, despite having higher marks to the petitioner, had lost his right of either being selected or being appointed on the solitary post of Prakhand Teacher reserved for visually challenged candidates. In this regard, he has also sought to make out a case of discrimination as against the Tribunal itself of deciding a similar matter in its order dated 2.3.2012 in Appeal Case No. 1/12 by approving the same newspaper notice providing two days time for the candidates to appear for their verification of the certificates and testimonials whereas the same issue has been decided against the petitioner and in favour of the respondent No. 7 by the impugned order passed by the Tribunal. Finally, he has also placed reliance on an order of this Court dated 1.10.2012 in CWJC No. 9943 of 2012 in the case of Manoj Paswan Vs. State of Bihar and others wherein, according to him, the procedure of issuance of notice in newspaper by itself without issuance of individual notice to the eligible candidates for verification of their certificate has been approved and thus can be held to be binding precedent for deciding this case.

In this case, notices were issued to the respondent No. 7 by an interim order dated 22.11.2012, while also directing for maintenance of status quo till further order and it is in response to the same, the respondent No. 7 has appeared and has also filed counter affidavit.

Learned counsel for the respondent No. 7 has submitted that the appointment on the post of Prakhand Teacher is governed by the specific rule, namely, Bihar Panchayat Teachers Appointment Rules, 2006 and the same does not contemplate further verification of certificate after counseling which, in the case of the petitioner as well as respondent No. 7 and other candidates had already been held on 24.1.2009 itself. He has also sought to support the impugned order passed by the Tribunal on the ground that a period of two days in the alleged newspaper notice was wholly insufficient for the successful candidates to appear for verification of their certificate. He has also sought to distinguish the order relied by this Court in the case of Manoj Paswan (supra). Additionally he has also submitted that an illegal order of the Tribunal dated 2.3.2012 as with regard to validity of the advertisement can not be approved by this Court which would infact amount to perpetuating an apparent illegality.

Learned counsel for the State, while supporting the impugned order passed by the Tribunal, has also adopted the submission of the learned counsel for the respondent No. 7.

In the considered opinion of this Court, the main issue in the case will be as to for what purpose, the alleged notice in newspaper was sought to be issued by the Block Education Extension Officer, Chandi. The petitioner has very conveniently suppressed this fact and it is the respondent No. 7 who has brought an earlier order of the Tribunal which would go to show that when the process of appointment, though started in the year 2008 and also completed by the process of counseling on 24.1.2009 had already been undergone and yet no decision for issuance of appointment letter was taken, a large number of affected candidates, seeking appointment on the post of Prakhand Teacher, had moved Tribunal by filing their respective cases being Case No. 231 of 2011, 206 of 2011, 234 of 2011, 230 of 2011, 209 of 2011, 251 of 2011 and 201 of 2011, all of whom were disposed of by a common order dated 14.11.2011. In this batch cases of seven appeals disposed of by the Tribunal, Case No. 234 of 2011 was filed by the respondent No. 7 and the Tribunal had, while disposing of all the seven cases including that of the respondent No. 7, had given a specific direction as would be apparent from the extract of the order dated 14.11.2011, which reads as follows:-

Thus, it would be apparent that before the Tribunal, the Block Education Extension Officer, Chandi did not take any plea that the certificate of either the respondent No. 7 or other candidates was yet to be verified and in fact when the Tribunal had already given a direction to fill up the vacant post by following the relevant rules and guidelines issued by the Human Resource Development Department, the procedure laid down in either Rule 9 of the Rules had to be followed in letter and spirit inasmuch as if the final merit list was already prepared and the counseling was also held on 24.1.2009 as is also admitted by the petitioner himself, the appointment letter as per the existing merit list was to be only issued without requiring the candidates to again appear by way of producing their respective mark-sheet and certificates. Rule-9, therefore, will have a direct bearing on all these cases and the same is extracted here below:-

From a bare reading of the Rule-9, it would become clear that after the applications are received and are screened, a draft merit list has to be prepared and if there be any objection against the draft merit list by the concerned candidate, a final merit is only to be prepared only after considering those objections. Once a final merit list prepared for each of the category for which the post of Prakhand Teacher/Panchayat Teacher has to be filled up, the process of counseling has to be conducted. Counseling in fact as per the Rule only means seeking option from the selected candidates for appointment to a particular school of a particular post.

There is also no doubt that there were only two applications in the category of physically challenged candidates and therefore if the process of counseling itself had been completed, the respondent No. 7, who, according to the petitioner, had also appeared in the counseling on 24.1.2009, as is also duly supported from the counseling chart annexed by the respondent No. 7 in his counter affidavit, there would be no difficulty in holding that mark-sheet and certificate of the petitioner as also the respondent No. 7 were already verified on 24.1.2009.

It is in this background that the case of the petitioner as with regard to the pasting of the notice on the notice board in the Block office on 15.12.2011 and the publication of the newspaper notice on 17.12.2011 has to be considered. The petitioner himself has enclosed the copy of the newspaper notice as Annexure-3 which was published in a local daily "Rashtriya Sahara" on 17.12.2011 requiring the candidates to appear on 19.12.2011 with their photograph and photo copy of the original certificates in the Block Resource Centre at Chandi.

First of all, the issuance of such notice is not required as per the aforementioned Rules or was not even directed by the Tribunal in its earlier order dated 14.11.2011 as quoted above. If the certificates were not verified with the respective originals in course of preparation of draft merit list, the final merit list itself could not have been prepared as is apparent from the scheme laying down the procedure for appointment on the post of Panchayat Teacher/Prakhand Teacher. Thus, if the original certificates were not verified, the Government restriction of making no further appointment after 31.12.2010 debarring any further appointment of the Panchayat Teacher/Prakhand Teacher in the second phase had already come into force. The order of the Tribunal dated 14.11.2011, however, would go to show that the process up to the counseling had already been completed as was admitted by the Block Education Officer, Chandi at the time of disposal of the seven cases including that of the respondent No. 7 filed before the Tribunal for issuance of their appointment letter.

In that view of the matter, if on the one hand the respondents had already accepted the applicability of the government decision dated 21.2.2011 carving out limited exception for considering the process of appointment of second phase from amongst only such candidates whose counseling had already been done after due verification of certificates, the Block Education Officer, Chandi could not have evolved his own unique procedure for making appointment by way of issuance of the aforesaid newspaper notice. To that extent, the Tribunal has rightly relied on the order of the State Government dated 21.2.2011 in its order dated 14.11.2011 passed in the earlier case filed by the Respondent No. 7 and others for completing the process of appointment by way of issuance of formal appointment letters to the successful candidates.

Assuming that the process of appointment was not completed, inasmuch as, the original certificate of all the eligible candidates had not been verified, then also the Block Education Officer, Chandi was required to give a reasonable period to the candidates to appear with their original certificates and testimonials. A period of two days i.e. on 19.12.2011 that too by way of publishing a notice on 17.12.2011 in a newspaper, namely, Rashtriya Sahara, whose circulation is not even wide spread and at least cannot be said to be a leading newspaper of this State would never amount to affording a reasonable opportunity to all the eligible candidates whose selection upto counselling in terms of Rule-9 had already been completed on 24.1.2009 i.e. some three years back. It is in this regard that the findings of the Tribunal in the impugned order of there being wholly inadequate opportunity to the petitioner and other candidates by providing only two days time for their appearance on 19.12.2011 in relation to the selection process, which had commenced in the year 2008 and in which other preparation of final merit the counseling also had already been held on 24.1.2009, needs to be approved and affirmed wherein it has been held as follows:-

The question for determination is as to whether the time given to the candidates for appearing before BEO Chandi can be said to be reasonable or sufficient time. In my view two days time is neither sufficient nor reasonable for giving notice to the person concerned to appear before BEO Chandi. For instance if person is away to a distant place wherefrom it would not be possible to rush within two days to BEO Chandi it cannot be said, in this circumstances, a sufficient opportunity for appearance before the BEO Chandi. It appears that BEO Chandi was in haste to appoint opposite party Purushottam Kumar. On this ground alone the appointment of Purushottam Kumar is quashed. BEO Chandi is directed to give at least seven days time to the person concerned, so that they may get sufficient time to appear before the BEO. This order is confined only to the post reserved for visually challenged candidates who fulfill the conditions as laid down in the guideline contained in of the Education Deptt. Bihar, Patna and who find place in the final select list. The BEO Chandi will consider for the appointment of such person who has higher marks in the category of visually challenged persons.

Article 14 & 16 of the Constitution of India only envisages right to equality as also equal opportunity in the matter of public employment. If the candidates vying for recruitment are given a day or two days time to appear, that by itself would negate such right guaranteed under the Constitution of India. Here in the present case, the petitioner, who had definitely lesser marks and was ranked below in the merit list to the respondent No. 7, had stolen march over the respondent No. 7 only because of this alleged newspaper notice giving a period of two days time. First of all Rule-9 does not envisage such notice but, if such notice for verification of certificate was to be issued for any specific reason, there had to be at least seven days clear notice and in fact also individual communication to the candidates for ensuring wider participation for selection of the best among the eligible candidates. That having been not done, if the Tribunal has directed for holding such verification of certificate not only of the respondent No. 7 but, of all other candidates of the physically challenged category which would also include petitioner this Court is not required to interfere with such valid and legal order of the Tribunal.

The over emphasized reliance of learned counsel for the petitioner on an order of the Tribunal dated 2.3.2012 in Appeal Case No. 1 of 2012 filed by one Vishnukant Prasad, who had only 56.31% marks as against the respondent No. 7 having 56.55% marks, also cannot inure to the benefit of the petitioner who had only 53.66% marks. Moreover, from the perusal of aforesaid order of the Tribunal dated 2.3.2012, it does not transpire as to whether Vishnukant Prasad was also vying for the post of Physically Challenged Category as is the present case between the petitioner vis-�-vis respondent No. 7. In any event, the order dated 2.3.2012 is a wholly unspeaking order and does not give any indication as to who was the candidate who despite having lesser marks than Vishnukant Prasad in his category was not appointed compelling him to move Tribunal. In view of the fact that none of the parties affected by the order of the Tribunal dated 2.3.2012 in Appeal Case No. 1 of 2012 filed by Vishnukant Prasad are before this Court, this Court would not like to say anything about that order of the Tribunal dated specially when it has also found that aforesaid Vishnukant Prasad had also not appeared in the counseling held on 24.1.2009 as is also apparent from the extract of the counseling register produced by the respondent No. 7 in his counter affidavit, inasmuch as, the name of Vishnukant Prasad does not figure therein. Thus, if Vishnukant Prasad had not appeared even on 24.1.2009, his case on fact itself is clearly distinguishable.

Moreover, an illegal order of the Tribunal passed in case of Vishnukant Prasad approving the validity of the same newspaper advertisement giving barely two days time to eligible candidates to appear for verification of their certificates, even though not contemplated and prescribed in the Rules, which for the reasons indicated above is bad on fact and in law, cannot be made a ground for this Court to set aside the impugned order which is perfectly legal and correct order in the fact and circumstances of the case as it mount to perpetuating illegality and thus impermissible in exercise of under Article 226 of Constitution of India. Reference in this connection may be usefully made to the judgment of Apex Court in the case of State of Bihar Vs. Upendra Narayan Singh and Others, wherein this very aspect has been explained in the following words:-

By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committee in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing wrong order- Chandigarh Administration and another Vs. Jagjit Singh and another, Secretary, Jaipur Development Authority, Jaipur Vs. Daulat Mal Jain and Others, Union of India (Railway Board) and others Vs. J.V. Subhaiah and others etc. etc., , Gursharan Singh and others etc. Vs. New Delhi Municipal Committee and others, State of Haryana and Others Vs. Ram Kumar Mann, M/s. Faridabad Ct. Scan center Vs. D.G. Health Services and others, M/s. Style (Dress Land) Vs. Union Territory Chandigarh and Another, State of Bihar and Others Vs. Kameshwar Prasad Singh and Another, Union of India (UOI) and Another Vs. International Trading Co. and Another, and Directorate of Film Festivals and Others Vs. Gaurav Ashwin Jain and Others,

Finally, the reliance placed by the learned counsel for the petitioner on an order of this Court dated 1.10.2012 in CWJC No. 9943 of 2012 relating to filling up the post of Panchayat Teacher in Gram Panchayat, Hasanpur Bagar in district of Begusarai is also clearly distinguishable, inasmuch as, the notice of such counseling to be held on 29.12.2010 was published by the Human Resources Development Department in all the leading newspapers under the order of the Principal Secretary who had set out the whole programme. Moreover such notice of the State Government referred to and relied by this Court in the case of Manoj Paswan (supra) was definitely not published giving only two days time to the candidates to appear as has been done in the present case. Thus, the findings in the order of this Court dated 1.10.2012 in the case of Manoj Paswan @ Manoj Kumar that there was adequate publicity for counseling in the newspaper notice published by the Human Resources Development Department by itself would distinguish the case in hand of the petitioner vis-�-vis Respondent No. 7.

For the aforementioned reasons, this Court does not find any error in the impugned order passed by the Tribunal and the same is, accordingly, affirmed. The reasons recorded hereinabove would form part of the earlier order dated 21.11.2013 passed by this Court, wherein, the writ application of the petitioner has already been dismissed with a consequential direction to the Respondent No. 4 to comply the direction of the Tribunal in its impugned order dated 18.9.2012 in Appeal Case No. 234 of 2011 in its true letter and spirit.