Upendra Ram vs The State of Bihar and Others

Mihir Kumar Jha, J.—Heard learned counsel for the parties.

The prayer of the petitioner in this writ application is to quash an order dated 11.10.2012 passed by the District Teachers Employment Appellate Authority, Lakhisarai (hereinafter to be referred to as ''the Tribunal'') in Appeal Case No. 66/10-11, whereby and whereunder, the Tribunal, having allowed the complaint of the respondent no. 9, has set aside the appointment of the petitioner with a direction to appoint the respondent no. 9.

Learned counsel for the petitioner, while assailing the impugned order, has submitted that the Tribunal failed to take into account that the complaint filed by the respondent no. 9 was time barred and also that the respondent no. 9 had not appeared in course of counseling.

Learned counsel for the petitioner while assailing the findings of the Tribunal, has also submitted that the appointment of the petitioner was made on 14.8.2010 but, the complaint was filed by the respondent no. 9 only on 6.10.2010 and thus, not within a period of one month as prescribed in the Bihar Panchayat Teachers Appointment Rules, 2006. He has also submitted that when counseling was held on 27.1.2009, the petitioner had appeared whereas the respondent no. 9 did not appear and as such, the appointment of the petitioner, despite having lesser marks against a post reserved for the Extremely Backward Category, cannot be faulted either on fact or in law. He has also accordingly assailed the findings of the Tribunal in this writ application of there being no proper notice of counseling cannot be upheld because there is nothing in the Rule that such notice of counseling has to be sent by registered post.

On the other hand, Mr. Durgesh Nandan, learned counsel for the respondent no. 9, having filed the counter affidavit, has supported the impugned order passed by the Tribunal and, according to him, while the respondent no. 9 had obtained 63.44% marks as against the petitioner securing only 58.3% marks in the qualifying examination, there was no question of the petitioner being appointed in preference to the respondent no. 9. In this regard, it is the specific case of respondent no. 9 that notice of counseling was never served on him and when he came to know of the appointment of the petitioner, he had immediately filed his complaint before the Tribunal on 6.10.2010 which cannot be held to be time barred, inasmuch as, there is no statutory time limit fixed in the 2006 Rules. He has also submitted that the list of the selected candidates as produced by the petitioner (Annexure-6) is a forged document, inasmuch as, the name of Amod Singh at serial no. 12 is not supported from the document as contained in Annexure-9-F.

Learned counsel for the State while supporting the impugned order of the Tribunal has adopted the submission of the learned counsel for the respondent no. 9.

In the considered opinion of this Court, the plea of delay as raised by the petitioner against the complaint filed by the respondent no. 9 before the Tribunal is wholly misconceived, inasmuch as, there is no period of limitation under the 2006 Rules and the fact that such application was filed well within two months of the appointment of the petitioner, the same cannot be held to be time barred. This aspect of the matter has also been considered by this court in C.W.J.C. No. 5495 of 2012 (Nilu Kumari vs. the State of Bihar & Ors.), wherein it was held as follows:-

In the considered opinion of this Court, so far the finding of the Tribunal relating to appointment of respondent no. 16 on the unreserved post is concerned, that is absolutely flawless. The respondent no. 16 has admittedly 71.22.% marks and, therefore, he had to be appointed in preference to the petitioner. The only reason for denial of appointment of Respondent no. 16 that he did not produce his original mark sheet and certificate on the date of counseling was itself wholly unjustified and arbitrary. A candidate who has been selected on the basis of attested copies of mark sheets, if he or she seeks time to produce their respective original before the appointing authorities/Selection authorities, he or she has to be given some reasonable time say at least a week so that he/she could produce the original certificate and marksheet.

As the selection on the post of Panchayat teacher by way of counseling had been fixed on the same day in different Panchayat in pursuance of which if a person has deposited the original certificates in one Panchayat and yet he is not selected and appointed in that Panchayat, he cannot be non-suited on the ground of non-production of original certificate in the other Panchayat where his name has been included in the merit list and he gets selected in course of counselling on the basis of his attested copy of his certificate and marks sheet. To that extent the finding of the Tribunal is fully justified and would require no interference of this Court.

This Court, however, must take into account the reliance placed by learned counsel for respondent no. 10 as also the petitioner on certain circulars of the Education Department. In the counter affidavit, respondent no. 10 has enclosed a press communique issued by the Principal Secretary of the Education Department dated 17.04.2010 which says that the appeal is to be filed before the Tribunal ordinarily within 30 days and since the appointment of the petitioner was made on 30.12.2010, such appeal by the respondent no. 16 had to be filed on or before 29.01.2011 but the respondent no. 16 did not do so and as such his appeal/complaint before the Tribunal was itself time barred.

This Court, would find it difficult to accept such submission for more than one reason. Firstly it has to be noted that initially when the redressal forum was provided in the Bihar Panchayat Prarambhik Shikshak (Niyogan and Seva Sart) Niyamawali-2006 the power to decide the appeal was vested in the Block Development Officer. No period of limitation was provided therein and a period of 30 days was only prescribed for deciding the appeal by the Block Development Officer as would be evidenced from the reading of Rule-18 in 2006 Rules:-

The State Government by resolution no. 3153 dated 25.08.2008 had constituted the District Teachers Employment Appellate Tribunal and in the same also though it was an executive order, no period of limitation was prescribed. The notification which was issued on 23.10.2008 laying down service condition of the member of the Tribunal as also the manner of the functioning of the Tribunal, its rights and responsibility vide notification no. 3716 dated 23.10.2008 had made a provision that:-

As would be evident, that there was no beginning point of computing the charge of 30 days prescribing the aforementioned limitation in filing of the appeal. It has to be kept in mind that there is no original authority whose orders are only to be questioned, inasmuch as, in the matter relating to terms and conditions of service of a Panchayat Teacher can be made subject matter of an appeal before the Tribunal. The expression used in the Government notification dated 23.08.2008 does say that such appeal has to be filed within 30 days of the issuance of the appointment letter of the person concerned. By now it is well settled that any interpretation of statute prescribing limitation cannot be made on the basis of implication or by way of inference. Reference in this connection may be usefully made to the judgment of the Apex Court in the case of Lala Balmukund (Dead) through Lrs. Vs. Lajwanti and Others, :-

We do not wish to encumber this judgment with a detailed discussion of all the citations and the reasoning advanced therein in support of one or the other view. It will be sufficient to say that upon the language of Section 12(2) both the constructions are possible, but the one adopted by the majority of the courts, appears to be more consistent with justice and good sense. The Limitation Act deprives or restricts the right of an aggrieved person to have recourse to legal remedy, and where its language is ambiguous, that construction should be preferred which preserves such remedy to the one which bars or defeats it. A Court ought to avoid an interpretation upon a statute of Limitation by implication or inference as may have a penalising effect unless it is driven to do so by the irresistible force of the language employed by the legislature.

Be that as it may such provisions was an executive instruction issued vide memo no. 3716 dated 23.10.2008 as contained in Annexure-C to the counter affidavit of respondent no. 10 was never incorporated in the Rules. As a matter of fact the amendment in the Rules was brought only on 03.07.2009 vide notification no. 1056 which is Annexure-A to the counter affidavit of respondent no. 7 which reads as follows:-

17 Thus neither in the 2006 Rules nor in the 2009 amended Rules, any period of limitation has been prescribed for filing of the complaint which has loosely been also described as an appeal. In fact there being no order of the original authority, the nomenclature of appeal is more or less to be understood in the context of Rule-18 which only says about filing of complaint before the Tribunal.

It is in this background that the press communique of the Principal Secretary of the Human Resources Development Department dated 17.04.2010 which is more or less by way notice/information has to be understood inasmuch as the same reads as follows:-

From the aforesaid press communique, it would be clear that the appeal and complaint in fact are the same thing and again even by this executive order all that has been said is that ordinarily the appeal in any matter has to filed within 30 days. There is again no beginning point of limitation for computing the period of 30 days. Thus on the basis of the pleadings on record, the submission of learned counsel for the respondents that there is a fixed prescribed period of appeal of 30 days which would commence from the date of appointment on the post of concerned Panchayat Teacher cannot be accepted.

(underlining for emphasis)

In the light of the aforesaid settled law if the facts of the present case is examined it is found that the plea of limitation in fact was also specifically gone into by the Tribunal and it had, after hearing both the petitioner and respondent no. 9, by a separate order dated 13.12.2011 had gone to hold that the appeal filed by respondent no. 9 was not barred by limitation. The petitioner, however, has very conveniently not brought on record that order dated 13.12.2011 which had merged into the impugned order passed by the Tribunal on 11.10.2012. As a matter of fact if the appointment of the petitioner was made on 14.08.2010 and the complaint was filed within a period of less than two months, the same in absence of any specific provision of limitation under Rule-18 of the Bihar Panchayat Teacher Appointment Rules-2006 hereinafter referred to as the 2006 Rules cannot be even otherwise held to be barred by limitation.

Even on merit, this Court would find no reason to interfere with the impugned order of the Tribunal for a simple reason that the petitioner had admittedly been a candidate vying for the post of Panchayat Teacher reserved for the category of Extremely Backward Category and the respondent no. 9 also belonged to the same category. Thus, when both of them had to compete for the same post, one who had the higher marks and thus more meritorious in terms of Rule 9 of 2006 Rules had to be selected and appointed but, then, in the present case, the selection of the petitioner having only 58.33% marks as against the respondent no. 9 securing only 63.44% could not have been upheld and has been rightly interfered with by the Tribunal.

The plea of the learned counsel for the petitioner that the respondent no. 9 did not appear in the counseling has also been fully examined by the tribunal with the help of the relevant records and it has been found that there was a large scale of interpolation in the records for appointing the petitioner and in fact the so-called decision taken on 17.1.2009 for holding counseling on 20.1.2009 was itself bad, inasmuch as, the notice to all the candidates to appear in counselling could not have been served within a period of two to three days. Thus, this Court does not find any reason to interfere with the findings of the Tribunal wherein the case of the petitioner vis-a-vis respondent no. 9 has been examined in a detailed manner, relevant portion whereof reads as follows:-

(underlining for emphasis)

This Court in fact at one point of time had been of the opinion that it was a fit case to initiate a proceeding u/s 340 of the Cr.P.C. against the petitioner for filing a forged document as is evidenced from a bare comparison of Annexure-6 produced by the petitioner and Annexure-9-F produced by the respondent no. 9 specially when the Tribunal also has found that the claim of the appointment of Amod Kumar against the post reserved for Physically Handicapped Category was not supported from the official document. In fact, the petitioner had produced a forged document showing Amod Kumar at serial no. 12 of the merit list whereas at serial no. 12 in the document produced by Respondent no. 9 the name is of one Nitu Kumari as has been fully explained by respondent no. 9 in paragraph no. 15, 16 and 17 in the counter affidavit, which also has not been sought to be even controverted by the petitioner by filing any rejoinder affidavit.

Thus, on account of non-traversing and/or denial of the paragraph nos. 15, 16 & 17 of the counter affidavit of respondent no. 9 by the petitioner, reading as follows:-

That the respondent has obtained the Photostat copy of selection list of 2008 where at serial no. 12 name of Nitu Kumari is given and there is no name of Amod Singh in the selection list, nor any one has been selected or appointed of Handicapped category candidate.

That the said list contained in Annexure-6 of the writ application is a forged document has no reliance at all. For annexing a document making it forged the petitioner is liable for criminal prosecution by the Hon''ble Court as it has been brought through swearing affidavit knowing it a forged used as genuine.

That the roaster which had been given to the Panchayat for selection of Panchayat Teacher, clearly indicates that at Panchayat Halsi only 12 total posts were available for panchayat teacher where 2 posts have been made reserved for handicapped, but no one handicapped has been appointed and falsely it has been shown at Annexure-6 of the writ application one Amod Singh at Sl. No. 12 has been appointed as hearing handicapped candidate which is out and out a false and incorrect statement, no one handicapped has been appointed at Panchayat Halsi which clearly shown at Annexure-6 of the writ application one Amod Singh at Sl. No. 12 has been appointed as hearing handicapped candidate which is out and out a false and incorrect statement, no one handicapped has been appointed at Panchayat Halsi which clearly shows at Annexure-9-F of this counter affidavit.

as also when this aspect which has also been found to be correct in the aforesaid findings recorded by the Tribunal in the impugned order, this Court will have no difficulty in holding that despite there being two posts reserved for Physically Handicapped Category, no one among the Physically Handicapped Category much less Amod Kumar was appointed so as to exclude the respondent no. 9 in that category.

This Court, however, keeping in view that the petitioner has already suffered for his aforesaid misdeeds and his appointment has already been cancelled by the Tribunal and in his place the respondent no. 9 has also been appointed on 17.1.2013, would leave the matter at rest but only after recording a warning against the petitioner to not repeat such an act in a Court of law which may itself become impediment for his future in course of obtaining employment in any government service.

Thus, for the reasons indicated above, this writ application must fail and is, accordingly, dismissed.