Soni Kumari daughter of Sri Ramadhin Prasad vs The State of Bihar

Heard learned counsel for the petitioners and the State.

The petitioners have challenged the order of the District

Teachers Employment Appellate Authority, Nalanda (hereinafter

referred to as the ''Authority'') in Review Application arising out of

Cases No. 53 of 2011, 85 of 2011 and 213 of 2010, dated 22.07.2016.

The petitioners were applicants for the post of Panchayat

Teacher in Gram Panchayat Raj Parwalpur in the district of Nalanda

for which the process was initiated in the year 2009. However, when

there was some dispute raised by the some of the applicants, they

moved before the Authority in Cases No. 53 of 2011 and 85 of 2011.

In the said case, the Authority came to a finding that there had been

irregularities in the process and it was directed that there should be

fresh counselling. This order was not complied. The petitioners,

along with others, had also approached the Authority in Case No. 213

of 2010 in which also there was a direction to the Block Teachers

Employment Unit, Nalanda to conduct fresh counselling of the

petitioners and complete the process of appointment, by order dated

26.12.2011. When the order dated 15.04.2011 remained uncomplied

with, such persons approached this Court in C.W.J.C. No. 20231 of

2012 which was disposed off by order dated 10.12.2012 by remanding

the matter to the Principal Secretary, Department of Education to

examine the matter. On such remand, the Principal Secretary, after

taking into consideration all aspects, came to the conclusion that the

petitioners of C.W.J.C. No. 20231 of 2012 were genuine and bona

fide and the subsequent order in favour of the petitioners was not

proper. He, accordingly, directed the District Programme Officer to

file review. Pursuant to such decision of the Principal Secretary,

review was filed by the District Programme Officer (Establishment),

Nalanda and the order passed by the Authority on such review dated

22.07.2016 is impugned herein.

Learned counsel for the petitioners submitted that they

were not party before this Court earlier in C.W.J.C. No. 20231 of

2012 and, thus, the order remanding the matter to the Principal

Secretary, Department of Education is not binding on them. It was

further submitted that the Authority has no power to review its earlier

order and, thus, the order passed in Case No. 213 of 2010 filed by the

petitioners, which was disposed off on 26.12.2011, could not have

been interfered with by the Authority. For such proposition, learned

counsel has relied upon the decision of a co-ordinate Bench of this

Court dated 12.05.2014 in C.W.J.C. No. 8680 of 2010 (Ashok

Kumar Vs. The State of Bihar & Ors.).

Learned counsel for the State, at the very outset,

submitted that though there could be no exception to the proposition

of law that the Authority may not have power to review, but if facts

are looked into, the finding of the Principal Secretary, Department of

Education, that too, pursuant to remand by this Court in C.W.J.C. No.

20231 of 2012, having thrown up facts which were clearly indicative

that the procedure or selection was not proper and that the

appointment of the petitioners, pursuant to order passed in their case

by the Authority in Case No. 213 of 2010 dated 26.12.2011, he found

both matters overlapping and, thus, directed for filing review.

Having considered the matter, though strictly speaking

and technically, the Authority may not have the power to review but

in the special facts and circumstances of this case, the Court is not

inclined to interfere in its prerogative extraordinary writ jurisdiction

under Article 226 of the Constitution of India for the reasons

mentioned hereinbelow. First and foremost, there are two conflicting

orders passed by the Authority relating to the same appointment

process. In one case, there was a finding that what had happened was

not correct and a direction was given for re-counselling but in the case

of the petitioners in Case No. 213 of 2010, there was specific

direction that fresh cousnelling should be done with regard to the

petitioners. Though the order for re-counselling of the entire lot was

made in the case of the other applicants, that is, the writ petitioners of

C.W.J.C. No. 20231 of 2012 in the order of the Authority dated

15.04.2011 in Cases No. 85 of 2011 and 53 of 2011, but the same

having remained unimplemented and the order passed in Case No.

213 of 2010 filed by the applicants on 26.12.2011, that is, after 8

months being implemented and, that too, the exercise restricted only

to the petitioners, cannot be justified, either in law or on facts. Once

re-counselling was required, it was required to be done as a whole, for

all the applicants and could not have been restricted to one group or to

the persons who had moved before the Authority. This not having

been done, the other persons have wrongly been penalized and put to

loss because of the order of the Authority. Moreover, once the

Authority, while considering the same transaction of appointment for

the same Panchayat, having passed an order on 15.04.2011 in Cases

No. 85 of 2011 and 53 of 2011, could not have passed fresh order on

26.12.2011 in Case No. 213 of 2010, which was filed by the

petitioners. This is clearly impermissible as once having passed an

order relating to any issue, no further jurisdiction remains with the

Authority to consider mattes relating to the same dispute. The other

equally important aspect is that a co-ordinate Bench of this Court had

remanded the matter to the Principal Secretary for consideration, and

upon consideration, it was found that due to overlapping, fresh

counselling was required and, thus, a direction was issued to file

review. The contention of learned counsel for the petitioners that

because the order passed by the co-ordinate Bench was without

making them party or hearing them, such order is not binding on

them, stands waived in view of the fact that upon remand, the

Principal Secretary having directed for filing review and in the

review, the petitioners submitting to the jurisdiction of the Authority,

without raising any dispute and also without approaching this Court

for review or modification of its order dated 10.12.2012 passed in

C.W.J.C. No. 20231 of 2012, the Authority has rightly gone on merit.

Upon perusing the order, at least on facts, the Court is convinced that

what has happened till date is not proper. Further, it is quite clear that

the initial exercise itself was vitiated and thus, re-counselling was

required, but the manner in which re-counselling has been restricted to

the petitioners without it being made general and open for all persons,

who had applied within the cut off date, such direction cannot be held

to be just and fair. Once the Court is convinced that on facts/merits,

the proper recourse is re-counselling, which has been ordered by the

Authority in the impugned order, there exists no ground for any

judicial interference by this Court in the present writ petition.

Accordingly, the writ petition stands dismissed.