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Judgment
Heard the parties.
The present Letters Patent Appeal arises out of an
order dated 08.01.2015 passed by a learned Single Judge of this Court
in CWJC No.18222 of 2010 by which the learned Single Judge has
been pleased to dismiss the writ application filed by the present
appellant challenging the order dated 28.06.2010 passed by the
District Teachers'' Employment Appellate Authority, Khagaria (in
short ''the Appellate Authority'') in Appeal Case No.89-01/09
(Annexure-1 to the writ application). The Appellate Authority rejected
the application of the writ petitioner-appellant and upheld the
appointment of Anuja Kumari (respondent no.9 in the writ
application) holding that her appointment was in accordance with the
provisions of the Bihar Panchayat Primary Teachers (Employment
and Service Conditions) Rules, 2006.
The present appellant and the respondent no.9
belong to the Scheduled Castes (Women) category who applied for
their appointment as Panchayat Teacher under the provisions of the
Bihar Panchayat Primary Teachers (Employment and Service
Conditions) Rules, 2006 (hereinafter referred to as the ''Rule'') in
Gram Panchayat Raj, Bachhauta in the District of Khagaria. The
grievance of the writ petitioner-appellant was that the respondent no.9
has been appointed wrongly at roster point no.940 which was reserved
for Scheduled Castes (Women) category because the said respondent
no.9 had obtained only 47.22% marks which was far less than the
marks obtained by the writ petitioner-appellant being 54%. The
submission of the writ petitioner was that even though her name came
to be considered against the said roster point no.940 and was selected
in the 6th merit/select list, but she was not informed about giving her
consent. It was, therefore, submission of the writ petitioner-appellant
that the selection of respondent no.9 in the 7 th merit/select list against
the roster point no.940 was not correct, hence the same is liable to be
set aside.
The Appellate Authority came to be constituted by a
Notification No.07 dated 25.08.2008 issued by the Human Resources
Development Department, Government of Bihar for entertaining the
complaints relating to the illegality in the matter of teachers
employment and thereafter the writ petitioner-appellant filed the
present appeal being Case No.89-01/09. The Appellate Authority
went through the records produced before it by the Panchayat
Secretary of Gram Panchayat Raj, Bachhauta relating to the
appointment of the Panchayat Teachers, heard the parties and
thereafter recorded a finding that an information was sent to the writ
petitioner-appellant Under Certificate of Posting (UPC) and the
information was also pasted on the notice board of the gram
panchayat, but she did not submit her consent and because she did not
turn up, the Panchayat went for another list namely 7 th merit/select list
in which against the roster point no.940 the respondent no.9 came to
be appointed. The Appellate Authority, therefore, held that there was
no illegality in the appointment of the respondent no.9. The appeal
preferred by the present appellant was rejected.
The learned Single Judge of this Court while
considering the writ application against the order of the Appellate
Authority took note of the submissions of the parties wherein it
transpires that 10 vacancies were available in the Panchayat for
appointment as Primary Teacher out of which roster point no.934 was
earmarked for SC category (Male/Female) and roster point no.940
was earmarked for SC category (Female). Up to the 5th merit list the
post in question remained unfilled, therefore the selection committee
drew up the 6th list in which the petitioner figured, but she did not
appear to give her consent, whereafter the selection committee drew
up the 7th merit list which included the respondent no.9 who submitted
her consent as required under the Rules and got appointment.
The learned Single Judge also took note of the fact
that in the original Niyamavali as framed in 2006 the Block
Development Officer was the competent authority to enquire into such
allegation/grievance which after amendment in the Niyamavali got
vested in Authority by virtue of the amendment of Rule 18 of the
Niyamavali. In the writ petition there was no statement that any such
grievance was raised before the Block Development Officer who was
the competent authority at the relevant time to enquiry into such
allegation. There was no order passed by the Block Development
Officer providing a cause of action to the petitioner to approach the
authority (Appellate Authority in the present case) belatedly. The
authority thus could not have entertained her application filed at least
two years after such selection and appointment.
Having considered the rival submissions and upon
taking note of the facts and pleadings as appearing from the record,
the learned Single Judge held that "Nothing has been stated in the writ
petition about filing of any grievance application against such
selection and appointment of respondent no.9 before the then
Competent Authority i.e. Block Development Officer of the
concerned Block." The learned Single Judge accepted the finding of
the Appellate Authority that the notice under UPC was sent to the
candidates and those were available in the relevant records produced
by the concerned Gram Panchayat, further the learned Single Judge
found that the notice was also pasted on the board of the Panchayat.
The pleadings on record did not disclose that immediately after
appointment of the respondent no.9, the writ petitioner raised any
grievance before the competent authority. An application dated
04.06.2007 addressed to the D.S.E., Khagaria as well as D.D.C.,
Khagaria was shown to have been submitted raising the grievance
against the appointment of the respondent no.9, but the learned Single
Judge was of the view that the said application was not before the
competent authority and also that it was not filed immediately after
appointment of the respondent no.9 on the post in question. Thus,
according to learned Single Judge, the writ petitioner approached the
Appellate Authority after much delay and on this count alone the
application of the petitioner before the authority was liable to be
rejected, still the Appellate Authority considered the case of the
petitioner on merit and held that in spite of notice she did not turn up
to submit her consent letter within time fixed therefor. It is not in
dispute that the submission of the consent letter was a requirement of
law.
Learned counsel appearing on behalf of the writ
petitioner-appellant once again argued before us that no notice
regarding the selection of the writ petitioner in the 6 th merit list was
served upon her and, therefore, drawing up the 7 th merit list was in
haste. Thus, the appointment of respondent no.9 with lesser marks
than the writ petitioner is not just and proper. Learned counsel also
submits that writ petitioner had made a representation in this regard to
the D.D.C. vide her representation dated 04.06.2007.
On the other hand, learned counsel representing the
respondent no.9 submits that the Appellate Authority rightly rejected
the appeal of the writ petitioner because there were ample evidence on
the record produced before the Appellate Authority showing that
notices were sent to all the candidates under UPC and the same was
also pasted on the notice board of the Gram Panchayat. Learned
counsel further submits that the writ petitioner did not file her
grievance before the competent authority under the relevant Rule then
in existence and only after about two years she directly moved before
the Appellate Authority. Submission is that this Court sitting in its
appellate jurisdiction need not interfere with the findings of the
Appellate Authority duly affirmed by the learned Single Judge in
absence of any plea of mala fide or any glaring instance of illegality
committed by the selection committee in the matter of appointment of
the respondent no.9.
We have considered the rival submissions at the
bar and in order to satisfy ourselves also called for the original records
from the concerned Gram Panchayat which has been made available
to us. On perusal, it appears that notices under Certificate of Posting
were sent to the two candidates namely Jawahar Kumar who belongs
to SC (Female) category and to this appellant in SC (Female) category
on 10.02.2007. There is another Certificate of Posting dated
08.02.2007 showing the name of the appellant. Thereafter, 7 th select
list was prepared and a Certificate of Posting dated 19.02.2007 shows
that information was sent to the respondent no.9 who joined on the
same day. A perusal of the original records goes a long way to show
that the mode of communication adopted by the Gram Panchayat
through Certificate of Posting was not just and proper, there cannot be
a presumption of service of a letter dispatched through Certificate of
Posting, moreover only after ten days from the date of Certificate of
Posting showing dispatch of letter to the present petitioner, 7 th merit
list was drawn and the information was sent to the respondent no.9 on
19.02.2007 who joined on the same day. We cannot and do not
approve this mode of communication as it does not inspire
confidence. But having said so, we are not inclined to interfere with
the impugned orders after about 11 years of appointment of
respondent no.9 in exercise of our appellate power because at least on
this score we are convinced that the appellant did not raise her
grievance before the competent authority for a considerable period
and we accept the finding of the Appellate Authority as well as the
learned Single Judge that the appellant moved before the Appellate
Authority after about two years from the date of appointment of the
respondent no.9. By not raising her grievance before the competent
authority for a considerable period and thereby allowing the things to
settle down the appellant has made herself disentitled for the reliefs
prayed before the Appellate Authority.
The learned Single Judge has, in view of the reasons provided in his order, rightly refused to interfere with the
order passed by the Appellate Authority. We, therefore, do not find
any merit in the appeal calling upon us to interfere with the impugned
orders.
The appeal is, accordingly, dismissed. There will
be, however, no order as to cost.
The original record is handed over to State counsel
to be returned to the Appellate Authority.