Shiv Kishore Singh vs The State of Bihar

Mihir Kumar Jha, J.—Heard learned counsel for the parties. In this writ application, 71 petitioners have assailed the common order and judgment dated 29.6.2012 of the District Teachers Employment Appellate Tribunal, Saran (hereinafter to be referred to as ''the Tribunal'') in Appeal Case No. 60 of 2011, 95 of 2011, 94 of 2011, 68 of 2011 and 107 of 2011, whereby and whereunder, the Tribunal has refused to issue a direction for appointment of the petitioners on the post of Prakhand Teacher. A consequential direction has. also been sought from this Court for issuance of appointment letter to all the petitioners in view of their being successful candidates pursuant to the selection, process undertaken for appointment to the post of Prakhand Teacher.

Learned counsel for the petitioners while assailing the impugned order passed by the Tribunal, has basically concentrated on the aspect that once the selection process was already completed for appointment on the post of Prakhand Teacher and the petitioners were found placed in the merit list and the panel, they could not have been denied appointment on the post of Prakhand Teacher. It has also been submitted that this Court may itself call for the counseling register for verification of the claim of the petitioners inasmuch as they cannot be penalized for the deliberate mistakes committed by the recruiting unit including its Ex-Pramukh or the Block Development Officer.

Learned counsel for the State on the other hand has submitted that the findings of the Tribunal to the effect that, the entire selection process being itself vitiated by fraud including tampering of the records at the instance the Ex-Pramukh in course of preparation of the merit list, by itself would disentitle the petitioners to claim their appointment on the post of Prakhand Teacher specially when the second phase of appointment on the post of Prakhand/Panchayat Teacher under the relevant decision of the State Government has already been closed on 31.12.2010 wherein all the remaining vacancies of the second phase have to be filled up by ongoing fresh process of appointment of the third phase based on new criteria in terms of Rules framed in 2012.

The facts, as may be noted from the pleadings in the writ application, lie in a very narrow compass. According to the petitioners, the second phase of the appointment of Prakhand Teacher in Manjhi Block had commenced in the month of August, 2008 wherein after screening of the applications of the eligible candidates including the petitioners, counseling was held on 24.1.2009 but, the original certificates produced by the candidates including the petitioners could not be verified and, therefore, their appointment could not be made despite different schedule fixed by the State Government on 12.7.2010 and 4.12.2010. In this regard, it has also been pointed out that the decision taken on 24.12.2010 by the Director, Primary Education of making no further appointment in the second phase, save and except in exceptional specified cases, would also not apply to the facts of the case of the petitioners because in their case, counseling had already been completed and only certificates of the candidates including the petitioners were required to be verified.

In the considered opinion of this Court, the Tribunal has gone into the whole issue relating to alleged selection of the petitioners and others in a very elaborate manner and its well considered judgment running into fifteen pages by itself would be sufficient to show that the whole story of selection of the candidates was vitiated by fraud. The Tribunal in this regard has found that alleged counseling register was snatched and taken away by the previous Pramukh, namely, Khaitoon Bibi. The Tribunal has also found that the alleged merit list had contained forged signature of the Block Development Officer and there were also discrepancies in the signature over counseling register and on the list of the candidates.

In this regard, the Tribunal has on examination of the materials on record has arrived at a specific finding that when on a complaint of Jivan Singh, Sanjeev Kumar Singh, Arti Kumari Kumari Priyanka Singh and Muni Singh, who also alike the petitioners were applicants for the post of Prakhand Teacher, a detailed enquiry was conducted, it was found that not only Khaitoon Bibi, the Ex-Pramukh in whose period the process of selection by way of advertisement and filing of application had. commenced, had not even handed over the counseling register to her successor, the present Prarhukh, namely, Akhatari Begam. In fact Akhatari Begam had taken a specific plea to this effect before the officers of the Education Department that all relevant papers were not produced before her by the Block Development Officer, Manjhi and an information therefore was also given by her to the Collector of the district.

Such a plea of fraud committed by Khaitoon Bibi the then Pramukh, was also gone into" by the Tribunal at great length. In this regard it is important to note here that when Khaitoon Bibi, Ex-Pramukh had herself appeared before the Tribunal and produced the selection list claiming that the selection had already been done in accordance with the Rule, the Tribunal on its in-depth examination had found from them only that the so-called proceeding book was not maintained as per the rules and the provisional merit list dated 22.1.2009 did not match with the recordings in the proceeding book. The Tribunal in this regard had also found existence of two provisional merit lists, one dated 22.1.2009 of 102 candidates and other dated 6.12.2008 of 162 candidates but drawing of either of the merit list was not confirmed from the proceedings in the proceeding book. In this regard, the Tribunal has also gone into the aspect that such proceeding register was to be maintained as prescribed and supplied by the Government but that was also not maintained and the proceedings were recorded in the plain exercise book.

It was in these circumstances that when the Tribunal could find no evidence of the story of preparation of provisional merit list and final merit list substantiated from the proceedings book, inasmuch as, there were no corresponding entry of the meeting of the Selection Committee as prescribed under the Rules, it had come to a definite conclusion that the whole list produced by the Block Development Officer in the few pages of exercise book containing list of names of 161 candidates of the male/female of Scheduled Caste category, 52 of the male and female of Backward Category, 53 male/female of Extremely Backward Category and a separate list of 10 trained male and 83 trained female candidates was contrary to what was claimed by way of selection and preparation of the merit list by Khaitoon Bibi, the Ex-Pramukh who, as noted above, had come with a list of 102 candidates. The Tribunal in fact having also found that the counseling register which had been produced by the Block Development Officer did not contain signature of all the five members of the Selection Committee but, only of the Block Education Officer and the Ex-Pramukh had eventually came to a finding that when there was no record to show all the entries of the date of receipt of the application as also holding of the first meeting only of the 30.11.2008 as against the prescribed date by the State Government in between 18.11.2008 to 27.11.2008, the absence of the publication of merit list without any date which as per the Government decision had to be done by 1.12.2008, there were sufficient materials to hold that none of the prescribed procedure for selection and appointment for the Prakhand Teacher was followed.

In view of the above findings, there would be hardly any reason for this Court to interfere with the impugned well considered judgment of the Tribunal and issuance of the consequential direction for perpetuating the gross illegality which was committed by the selecting unit. This Court, therefore in absence of unimpeachable materials brought on record by the petitioners in this writ application which could have established the findings and the conclusion arrived by the Tribunal in the impugned judgment was based on any error of record will have no difficulty in approving the findings recorded by the Tribunal, relevant portion whereof reads as follows:--

Having regard to the aforementioned findings, it would vitiate the entire process of selection in keeping with the provisions laid down under Rule 9 of the Bihar Panchayat Teacher Appointment Rule, 2006, this Court cannot direct the authorities to now complete the process of selection specially when the second phase for appointment of the Teachers has already been closed and the vacancies have been carried forward for a fresh appointment to be undertaken in the third phase. To that extent, this Court would find support from the letter of the Director, Primary Education dated 24.12.2010 wherein the case of the petitioners cannot be brought under the exception specially when there was a large scale bungling in the process of even preparation of provisional merit list and the final merit list.

The overemphasized submission of the learned counsel for the petitioners that they cannot be faulted on account of the bungling committed by the officials, its answer is not only found in the Full Bench judgment of this Court in the case of Bijoy Kumar Bharti and Others Vs. State of Bihar and Others, but also in the judgment of the Apex Court in the case of Krishan Yadav and another Vs. State of Haryana and others, wherein while setting aside the selection and appointment of 96 Tax Inspectors found to be tainted on account of interpolation, forgery and fictitious award of marks whose records of selection also had been destroyed by the Public Service Commission, it was held as follows:--

It is highly regrettable that that the holders of public offices both big and small have forgotten that the offices entrusted to them are sacred trusts. Such offices are meant for use and not abuse. From a Minister to a menial everyone has been dishonest to gain undue advantages. The whole examination and the interview have turned out to be farcical exhibiting base character of those who have been responsible for this sordid episode. It shocks out conscience to come across such a systematic fraud. It is somewhat surprising the High Court should have taken the path of least resistance stating, in view of the destruction of records, that it was helpless. It should have helped itself. Law is not that powerless.

Thus, this Court does not find any merit in this application and the same is accordingly dismissed.

Before parting with, this Court having regard to the findings against Khaitoon Bibi, a former Pramukh and the then Block Education Extension Officer, would direct that the Principal Secretary, Education Department should himself examine into all the aspects relating to interpolation and manufacturing of the records relating to selection of the petitioners for the post of Prakhand Teacher in Manjhi Block and take appropriate steps for initiating disciplinary action against the erring Government officials including the then Block Education Officer, Manjhi in the light of the findings of the Tribunal. A criminal case should also be lodged against all concerned including Khaitoon Bibi, Ex-Pramukh, the then Block Education Officer, Manjhi which should be investigated by Vigilance Department of the State Government. The Principal Secretary, Education Department having initiated both disciplinary and criminal proceedings will submit his action taken report to this Court within a period of six months from the date of receipt of this order. Let a copy of this order be sent to the Principal Secretary of Education Department for its strict compliance by all concerned.