Disposed

Kamla Kumari and Ors. v. The State Of Bihar and Ors.

Patna HC12 May 2014CWJC/16535/2013

Case brief

AI extract

What is this about?

This writ petition challenged the exclusion of candidate petitions from a list of 2413 remaining vacant teacher posts. The Court analyzed whether Apex Court orders limited appointments to only those who approached the Supreme Court. It held that all valid candidates in the panel are entitled to consideration for the 2413 posts and framed detailed directions for authorities to conduct fresh counsel

What did the court decide?

Application disposed; directions given for Committee to consider 2413 vacant posts via counseling of remaining/absent candidates within a specified timeline.

Kamla Kumari and Ors. Vs The State Of Bihar… — Pension and Retirement Benefits | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.16535 of 2013

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====================================================== 1. Kamla Kumari, Daughter of Sri Ram Udgar Rai, resident of villageKanjajwatta, Po- Chak Sikander, District- Vaishali

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1. Vidyawati Devi, Daughter of Rajendra Singh, resident of village and Po- Mathura, Ps- Bidupur, District- Vaishali

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1. Ranjana Kumari, Daughter Of Ram Kinkan Singh, Wife of Chanradev Singh, resident of village- Muh- Pratap Nagar, Mahessahal Road No. 4, House No.- 166, Opposite M.B.Singh, Sitamarhi

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1. Savitri Kumari, Daughter of Janak Prasad Singh, Wife of Shyam Nandan, resident of village- Nawada, Po- Gangya, DistrictMuzaffarpur

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1. Saroj Kumari, Daughter Of Rambrikcha Chaudhary, Wife Of Umesh Chandra Sharma, Resident Of Village- Muradpur, Post- Dumra Court, District- Sitamarhi

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1. Puspa Kumari, Daughter Of Sri Shiv Kumar Sinha Resident Of Village- Basua, Pos- Aurai, Vis- Katra, District- Muzaffarpur

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1. Nilam Sinha, Daughter Of Sri Narayan Chaudhary, Resident of VillageBenipur, Po- Bhrthea, Ps- Aurai, District- Muzaffarpur

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1. Vijay Kumari, Daughter of Late Krishna Chandra Thakur, Wife Of Bihwanath Singh, resident of village and post- Fathepur, Ps And District- Sheohar

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1. Rita Kumari, Daughter Of Ram Kinkar Singh, Resident Of Village- And Post- Bhailwara, Dhanushi, Ps- Runni Saidpur, District- Sitamari

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1. Manju Kumari, Daughter Of Late Baleshwar Prasad Singh, Resident Of Village- Kumhrapakar, Po- Mirapur, Via- Pca, Dhauli, DisttMuzaffarpur

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1. Shanti Kumari, Daughter of Shreewant Singh, Wife Of Shashi Bhushan Chaudhary, Resident Of Village- Majhauli, Po- Bidupur (R.S.), District- Vaishali

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1. Saroj Kumari, Daughter of Girija Prasad, resident of village and PoMahmmadpur, Ps- Phulwari Sharif, District- Patna .... .... Petitioner/s

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Versus

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The State of Bihar through the Principal Secretary, Education Department, Govt. Of Bihar, Patna

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The Commissioner-Cum-Secretary, Human Resources Department, Government Of Bihar, Patna

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The Director, Primary Education, Govt. Of Bihar, Patna

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The Secretary, Bihar Staff Selection Commission, Patna

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The Director, Research and Training, Education Department, Govt. Of Bihar

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The Secretary, Bihar School Examination Board, Patna

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.... .... Respondent/s

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====================================================== Appearance : For the Petitioner/s : Mr. R.B. Bhat, Advocate For the Respondent/s : Mr. Arshad Alam, Advocate. For the SCC : Mr. S.S. Sundaram, Advocate. ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA

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ORAL JUDGMENT (Date: 12.5.2014)

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Heard learned counsel for the parties.

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The prayer of the petitioners in this writ application

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reads as follows:-

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"1(i) For issuance of appropriate writ/writs, order/orders, direction/directions to the state respondents to appoint the petitioners on the post of primary teachers against the vacant post of 2413 as reported by State government during course of hearing of SLP (civil) No. 26824/2013 (Yashwant Singh Versus the State of Bihar) before supreme court."

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Mr. R.B. Bhat, learned counsel for the petitioners,

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in support of the aforementioned prayer, has submitted that the caste category of the petitioners as included in the final merit list approved by the Apex Court as also the teachers training session of the petitioners in the same merit list, are not correct and the panel need to be revised for placing the petitioners at higher place to enable them to be appointed against 2413 posts of teachers. In this regard, it has also been submitted that in the final merit list, the name of the petitioners were placed with the remark of fake/unrecognized institution as a result whereof, they were denied appointment. Mr. Bhat has also submitted that the issue of the fake institution on a direction of the Apex Court in respect of 2507 candidates was found to be incorrect and they were found to be genuine candidates and, as such, the case of the petitioners should

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also be examined in the same fashion for their being not only included in the final merit list but, also for their appointment against the remaining 2413 posts of teachers.

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In this case, a counter affidavit has been filed wherein it has been explained that all the petitioners had passed their teachers training examination from non-government S.P.G. Mission (Men) Primary Teacher Education College, Ranchi (hereinafter to be referred to as 'the College') and in view of the interim order passed by this Court on 21.02.2013 in this very case, the matter was examined and it was found that the college was given a conditional recognition by the State Government on 11.3.1978 but as the college did not fulfill the prescribed condition for grant of recognition, its recognition was cancelled on 15.4.1993. The Government also in the order dated 29.11.2013 had held that the college even from the session 1978-80 to 199193 was entitled to take admission of only 100 students as per Clause-8 of the order of conditional recognition dated 11.3.1978 and, as such, only such students would be entitled for being held to have passed from the institution who were validly admitted against 100 seats in the academic session 1978-80 to 1991-93. The verification of the valid students having passed teachers training examination from the college was to be also determined by Bihar

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School Examination Board, the Examining Body, which had issued the mark-sheet and the certificate.

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Learned counsel for the State has also drawn attention of this Court towards the order of the Apex Court dated 13.10.2011 wherein it was made clear that even if the claim of fake/unrecognized institution was answered in favour of any particular candidate as shown in the final panel, its correction cold be made only for the purpose of appointment in future. Mr. Arshad Alam, therefore, has laid stress that the future vacancy will not mean and include 2413 posts of teachers which has to be filled up in view of the direction of the Apex Court in the order dated 18.7.2013. In this regard, he has relied on the judgment of this Court dated 15.01.2014 in C.W.J.C. No. 17899 of 2012 ( Kanti Kumari vs. the State of Bihar & Ors. )

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In the considered opinion of this Court, the submission of the learned counsel for the State has to be accepted for more than one reason. Firstly, all these petitioners were before the Apex Court. In fact, Mr. Bhat, on the basis of this aspect, has gone to contend that the order dated 18.7.2013, as with regard to making appointment on the remaining 2413 posts, should be confined only to the persons who had appeared before the Apex Court either in capacity of petitioner or intervenor and no other

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applicant should be allowed to claim these 2413 posts. Reliance in this regard has also been placed by him on an order of the Division Bench of this Court dated 9.12.2013 in LPA No. 864 of 2013 (Ram Ekbal Thakur Vs. The State of Bihar & Ors.)

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This Court, however, would find that the Division Bench in the case of Ram Ekbal Thakur (supra) had held otherwise, as would be apparent from the following part of the

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judgment:-

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"We are afraid, we are unable to agree with Mr. Shabbir Ahmad. The above referred order dated 18th July 2013 was made by the Hon’ble Supreme Court in a group of Interlocutory Applications and Contempt Petitions in the pending Special Leave Petitions preferred by various individuals. The Hon’ble Supreme Court has in no uncertain terms allowed the applicants to approach the High Court for redressal of their grievances. Further, the Hon’ble Supreme Court disposed of all proceedings (applications, Special Leave Petitions, Writ Petitions) as withdrawn and reserved “ liberty to the parties to approach the High Court individually or otherwise, for relief, .… ” The above referred observation and direction explicitly refer to the parties before the Hon’ble Supreme Court. It cannot be read to mean a general direction in rem affecting all applicants for the post of Assistant Teacher. It is not the case of the applicant that he was a party before the Hon’ble Supreme Court in the above referred batch of cases. In our opinion, the appellant, therefore, cannot avail of the benefit under the above referred order dated 18th July 2013.

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However, as disclosed in the counter affidavits filed by the Bihar School Examination Board and the Staff Selection Commission, it appears that the matter is still at large before the State Government, the Bihar School Examination Board and the Staff Selection Commission.

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In above view of the matter, the Appeal is allowed to the extent that while reconsidering the matter at issue, the respondents will consider the objection filed by the appellant on 10th January 2012; will consider whether the above referred Chhotanagpur Prathmik

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Shikshak Shiksha Mahavidyalaya, Ranchi is/was a recognized institution; and whether the training certificate conferred by the said institution upon the appellant is genuine and acceptable.

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In the event, the respondents hold that the above referred Chhotanagpur Prathmik Shikshak Shiksha Mahavidyalaya, Ranchi was a recognized institution and that the qualification acquired by the appellant was a valid qualification, and if the appellant finds a place in the first 34,540 candidates in order of merit, the appellant be offered appointment as Assistant Teacher in a Primary School. In the event the appellant is found eligible and is appointed as Assistant Teacher, he will receive the service benefits as Assistant Teacher from the date of his appointment and not from any retrospective date.

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In the event, the respondent authorities hold that the aforesaid Chhotanagpur Prathmik Shikshak Shiksha Mahavidyalaya, Ranchi was at the relevant time not a recognized institution and that the qualification acquired by the appellant is not genuine or acceptable, the respondents will make a speaking order to that effect.

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The order shall be final and binding to the parties. Such order will not give a fresh cause of action to the appellant."

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(underlining for emphasis)

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Thus, in view of the aforementioned judgment of

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the Division Bench in the case of Ram Ekbal Thakur (supra), the case of other candidates cannot be excluded who were not before the Apex Court. As a matter of fact, the concept of filling up of 2413 posts cannot be confined only to the applicants before the Apex Court, inasmuch as, a person, who otherwise may have been in the zone of consideration as per his panel position approved by the Apex Court and may not have approached the Apex Court, cannot be denied consideration and also appointment on the basis of his merit position in the panel.

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In fact, this aspect of the matter has also been

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considered in the earlier judgment of this Court in the case of Kanti Kumari (supra), wherein it was held as follows:

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70. In CWJC No. 16969 of 2013 and CWJC No. 17056 of 2013, Mr. Yaduvansh Giri, learned senior counsel for the petitioners, has adopted a very hard line and according to him 2413 posts can only be filled up from amongst the persons who were before the Apex Court either by way of petitioners in the Special Leave Petition or intervenors. He has submitted that this Court should first direct the consideration of only those candidates who were before the Apex Court. On the other hand, learned counsel for the petitioners in batch of these writ applications have vehemently opposed such submission of Mr. Giri on the ground that after the Apex Court had lifted the ban of examining the validity of the panel and the consequential appointment, the relief of consideration and appointment on the vacant post of 2413 post of the lot of 34540 posts in which they were also applicants, cannot be confined to the petitioners /interveners before the Apex Court.

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71. In the considered opinion of this Court, such submission of Mr. Giri has to be rejected for more than one reason. Firstly, the order of the Apex Court dated 18.7.2013, already quoted above, does not say so. It only includes the consideration of the persons before the Apex Court by giving them opportunity to approach this Court for redressal of their grievance which were being agitated by them before the Apex Court. That cannot mean and would never amount to shutting the door of this Court for the other persons who are otherwise eligible to be appointed against 2413 posts. For example, a candidate who was already selected and included in the list of 34540 candidates but could not appear in the counseling and thus, is required to be considered for such counseling in view of the undertaking given by the State of Bihar before the Apex Court in its status report dated 30.8.2012, can he be denied consideration of his case only because he had not gone to the Apex Court? Such illogical submission of Mr. Giri in fact has also not found support form the judgment of the Division Bench dated 9.12.2013 in LPA No. 864 of 2013 wherein it has been categorically held that as the State of Bihar has itself been examining the cases of similar nature, the cases of the persons not appearing before the Apex Court has to be considered for appointment on 2413 posts. As a matter of fact, this aspect has also been clarified by the State Government in its affidavit relevant portion whereof reads as follows:-

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"5. That further with regard to the order dated 9.12.2013 passed by the Hon’ble Division Bench in L.P.A. No. 864/13 it is most respectfully submitted that the said order has a binding effect on all until it is reviewed or

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altered by the Hon’ble Apex Court.” 72. Thus, it is hereby held that case of each and every valid applicant can be taken into consideration for filling up 2413 posts irrespective of their being petitioners/intervenors before the Apex Court but of-course in the manner as being directed in this judgment.

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That being so, the first submission of Mr. Bhatt,

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for the reasons indicated above, is fit to be rejected.

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Coming to the next aspect, this Court would also find that the petitioners are bound by an inter-parte order dated 13.10.2011 passed by the Apex Court, relevant portion whereof reads as follows:-

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"--------- It has been claimed by some of the candidates that their institution have been shown to be Unrecognized/Fake where as from the same institution other candidates have been found eligible although this has not been admitted by Mr. Kailash Vasdev, learned Senior Counsel appearing for the State of Bihar, we feel if that is the case, such candidates should not be deprived of an opportunity in future. Accordingly, we direct that such candidates will be at liberty to apply to the Bihar Staff Selection Commission for recommendation of their status and the status of their institution in respect of which objections have not been considered by the special officer. It such representations are made, the same should be considered and disposed of by the commission after giving the candidates an opportunity of hearing and placing their case before the commission and if it is found that these cases are genuine, the said candidates should be considered in future vacancies, when other vacancies are available, in order of seniority--------"

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The future vacancy as on 13.10.2011, therefore, could not have meant any post of the lot of 34540 posts, inasmuch as, the offer of appointment of 34540 candidates included in the approved merit list (Panel) as per directions of the Apex Court in the same order dated 13.10.2011 itself was made subsequently

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leading to filling up of 32127 posts and leaving 2413 post vacant. Let it be noted that these 2413 posts could not be filled up because 1929 candidates were found to be absent during counseling whereas the cases of 366 candidates were kept pending and 118 candidates were not found fit for appointment.

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Thus, when the Apex Court on 13.10.2011 had made it clear that the resolution of issue of fake/unrecognized institution in favour of the particular candidate could inure only for his appointment against 'future vacancies', nothing is left for speculation that in the category of the petitioners whose names were actually included in the final approved panel in the category of unrecognized institutions and all of them were placed below 94206, they cannot claim their appointment as a matter of right in preference to the 94205 candidates whose names were included in the approved final merit list.

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Apart from what has been stated above, this aspect of the matter was also considered at length in the case of

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Kanti Kumari (supra) wherein it was held as follows:

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65. In CWJC No. 15510 of 2013, CWJC No. 18224 of 2013, CWJC No. 17342 of 2013 and CWJC No. 18538 of 2013, the grievance of the petitioners is that though they have been placed in the final approved list/panel in the category of ineligible candidates on account of their institution from which they had passed their teachers training examination to be fake/un-recognized institution, whereas other candidates from the same institution and in fact for the same session have not only been included in the select list but have also been

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appointed. In this regard, reliance has been placed by them on the order of the Apex Court dated 13.10.2011 wherein they were actually given liberty to approach the Commission for redressal of their grievance and it is their complaint that the said order of the Apex Court has not been complied as yet by the Commission.

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66. Mr. Arshad Alam, learned Counsel for the State, on the other hand has pointed out that such order of the Apex Court in no way was to improve the cases of all persons like the petitioners because such consideration of their institutions being fake/unrecognized was to be only made for 'future vacancy' which were not subject matter of 34540 posts. According to him, the Apex Court had only given an opportunity to such candidaets declared ineligible on account of their institution being found fake/unrecognized to get their such stigma clarified so that in future also for appointment of any post of teacher, they were not prejudiced because of approval of the panel by the Apex Court showing their name as ineligible candidate for the post of teacher on account of their having not passed the training examination from the unrecognized/fake institution.

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67. In the considered opinion of this Court, the present set of petitioners of CWJC No. 15510 of 2013 and its analogous cases stated above will have to be governed by the following part of the order of the Apex Court dated 13.10.2011:-

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"There is yet another group of candidates, who claim to be adversely affected by the deliberations and the findings of the learned Special Officer while preparing the list of eligible candidates. It has been claimed by some of the candidates that their institutions have been shown to be unrecognized/fake, whereas from the very same institution other candidates have been found eligible, although, this has not been admitted by Mr. Kailash Vasdev, learned senior counsel appearing for the State of Bihar, we feel if that is the case, such candidates should not be deprived of an opportunity in future. Accordingly, we direct that such candidates will be at liberty to apply to the Bihar Staff Selection Commission for reconsideration of their status and the status of their institutions in respect of which objections have not been considered by the Special Officer. If such representations are made, the same should be considered and disposed of by the Commission, after giving the candidates an opportunity of hearing and placing their cases before the Commission and if it is found that their cases are genuine, the said candidates should be considered in future vacancies, when other vacancies are available, in order of seniority."

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(underlining for emphasis) 68. It has to be kept in mind that in the same order, dated 13.10.2011, the Apex Court had approved the panel and also issued the direction for filing up 34540

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posts as would be evidenced from the following passage of the concluding portion of the same order:-

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"This brings us to the end of a long and arduous journey regarding the appointment of trained teachers in terms of the undertaking given in this Court by the State Government. We would like to express our deep sense of appreciation to Justice S.K. Chattopadhyay for having undertaken the tedious and painstaking exercise of finalising the list of eligible candidates to be considered for filling up the 34,540 vacancies identified during these proceedings.

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We are informed that nothing remains to be paid to the learned Special Officer on account of his remuneration.

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We also express our appreciation to all the counsel who appeared and helped us to resolve this matter for the benefit of the large number of trained teachers in Bihar who were waiting for appointment all these years.

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Let the original Roster, as well as the seniority list, which have been produced before us in a sealed cover and is at present lying in the custody of Mr. Gopal Singh, learned Standing Counsel for the State of Bihar, be sent to the Human Resource Department, Government of Bihar, for implementing this order. We make it clear that since the Roster, as well as the seniority list, have been prepared in terms of the order of this Court, no Court shall entertain any other objections or applications with regard to the same.

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The contempt petition, as well as the pending interlocutory applications are also disposed of by this order."

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69. It, therefore, becomes clear that on approval of the name of 94205 candidates in the approved list from which the appointment was to be made against 34540 posts, if the names of the petitioners were included in the ineligible candidates as per the report of the said officer, the expression "future vacancy" used in the order dated 13.10.2011 cannot be those 34540 posts. It may be a different thing that in course of filing of 34540 post, if any post had remained unfilled from the list of 34540 candidates already finalized by the Commission from the approved panel of 94205 candidates which was made Rule of the Apex Court. It has to be also kept in mind that appointment could be made only against those 34540 posts and the Apex Court had also clarified that none of the appointments already made, could be disturbed, the petitioners of this category cannot claim appointment as a matter of right. They in fact will have to wait for their turn because if after completing the exercise of filling up 2413 post as undertaken in the special report filed by the State Government before the Apex Court on 30.8.2012, some

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vacancies still remains, their cases at best could be reconsidered along with all other eligible candidates subject to the decision of the State Government of their institution being both recognized and having validity of their recognition for the session in which they have said to have been passed the examination and also their being covered by number of seats as per the condition of grant of recognition.

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In view of the aforesaid discussion, this Court

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will also have no difficulty in holding that the expression 'future vacancies' will not mean 34540 posts of teachers and therefore, the petitioner cannot claim any right for being appointed in view of the claim and categorical order of the Apex Court dated 13.10.2011 read with subsequent order dated 18.07.2013. It has to be kept in mind by the subsequent order, the Apex Court in no uncertain terms, while allowing the persons who were moved the Apex Court to agitate their issue before this Court, has specifically prohibited them form questioning any appointment already made from their panel approved by the Apex Court in the light of the order dated 13.10.2011.

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Thus, though it may be open for the petitioners to also file their claim for appointment either by way of seeking their change of reservation category and/or year of passing but, their cases of appointment would be considered only if any of the 2413 posts is not filled up from amongst the approved panel of 94205 candidates. To that extent, the cases of the petitioners shall also be

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governed by the general order of this Court dated 15.1.2014 in the case of Kanti Kumari (supra), operative portion whereof reads as

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follows:-

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(i) For filling up 2413 posts, a Committee consisting of Director, Primary Education and Secretary to the Bihar Staff Selection Commission shall take any decision with the approval of Principal Secretary of Education Department. In case of difference of opinion between the two functionaries, namely, Director, Primary Education and Secretary to the Bihar Staff Selection Commission, the decision taken by the Principal Secretary of the Education Department shall be final.

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(ii) The Committee shall first issue notice in the newspaper for appearance of the 1929 candidates for counseling as per paragraph no. 7(a) of the counter affidavit filed in this case as has also been extracted earlier in paragraph no.28 of this judgment. Such counseling of 1929 candidates must be completed within a maximum period of three months and letter of appointment to the eligible candidates having prescribed qualification and fulfiling other eligibility conditions must be issued within one month of the date of completing the counselling.

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(iii) The cases of 366 candidates again reflected in paragraph no. 7(c) of the counter affidavit shown to be pending also must be decided one way or the other within the same period of three months and those found eligible should also be given letter of appointment in next one month.

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(iv) In the likewise manner, the Committee also must reconsider the case of 118 candidates not earlier found fit for appointment as again explained in paragraph no.7(b) of the counter affidavit and take a final decision in respect of them within the same period of three months and those found eligible among them should also be given letter of their appointment in next one month.

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(v) Depending on the result of such exercise of fresh consideration of the cases of aforesaid 2413 candidats who were either absent during counseling or whose cases for appointment was kept pending or whose cases earlier was not found fit for appointment as explained in paragraph no.7 of the counter affidavit and upon issuance of appointment letters to those found eligible, they shall be given one month’s time for joining their post from their date of issuance of their appointment letter inserting a clause that if they do not join their post within the prescribed period, they shall forfeit their claim for appointment against 2413 posts for once and ever.

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(vi) The Committee on expiry of the period of one month for joining of the eligible appointment from amongst aforesaid 2413 candidates shall obtain a district wise report of their joining in next one month and reascertain the position of left over vacancy on 2413 posts. (vii) The Committee having taken the aforesaid steps and

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completed the exercise for considering the 2413 posts and on being reported the number of actual number candidates who had ultimately submitted their joining will re-ascertain the number of vacant posts in the respective subject category and would publish them in the newspaper as also on its official website inviting claims in a prescribed format from the left over candidates whose applications were received in time by the Commission and had formed part of 123149 of the total applications received as shown in the report of Hon'ble Justice S.K. Chattopadhyay the Special Officer submitted to Apex Court.

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(viii) This inviting of claim must be done by the Committee within three months of issuance of last appointment letter to the category of 2413 candidates giving a clear one month time to remaining candidates to submit their respective claim in writing in a prescribed format only by registered/ speed post. In no case any claim shall be entertained by receipt through hand in the department/commission.

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(ix) The Committee only in exceptional cases and that too for reasons recorded in writing shall make any change in the seniority position in final panel of 94205 candidates as approved by the Apex Court on 13.10.2011 confining itself to make such correction in cases of clear clerical error or error of record or any other allied compelling reason. It is made clear that for such appointment only on the remaining vacancy after considering the cases of pending 2413 candidates, the revised merit list will be prepared not only in accordance with the terms and conditions set out in 2010 Rules and the advertisement but also in keeping with the statement made by the Respondents in paragraph no. 9(a) and 9(b) of the counter affidavit as also in the light of findings recorded in paragraphs 35 to 81 of this judgment.

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(x) Such tentative revised merit list for the left over vacancies for each of the three subject teacher of general/ Urdu/Physical Training after considering the claims shall be published in newspaper and official website of the Education inviting objection and thereafter on considering such objection the revised merit list shall be finalized and made public both in newspaper and official website. This entire exercise however must be completed by the Committee within six months of publication of notice inviting the initial claim from the candidates.

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(xi) It is from this revised panel for the limited number of vacancy left out after consideration of 2413 pending cases in the manner indicated above, that steps for appointment for left over vacancy will be completed within two months of publication of the final panel. In no event, such appointments however shall be made beyond the number of post for each subject category which is 2007 for the general subject, 372 for Urdu teacher and 34 for Physical Trained Teacher as clearly stated before the Apex Court and this Court in the status report dated 30.08.2012 and the counter affidavit respectively.

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With the aforementioned observations and

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directions, this application is disposed of.

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(Mihir Kumar Jha, J)
Sujit/-

Kamla Kumari and Ors. v. The State Of Bihar and Ors.

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Kamla Kumari and Ors. v. The State Of Bihar and Ors.

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