Remanded

Suman Kumari v. the State of Bihar and Ors.

Patna HC20 Nov 2014CWJC/8567/2012

Case brief

AI extract

What is this about?

The High Court set aside an order of the District Teachers Appointment Appellate Authority which had declared the petitioner's appointment illegal. The court found errors in assessing eligibility based on the date of application and merit points, remanding the matter for a fresh hearing with opportunity of being heard.

What did the court decide?

Impugned order of the Appellate Authority dated 06.02.2012 set aside; matter remanded to the Appellate Authority to consider the matter afresh within six months.

Suman Kumari Vs the State of Bihar and Ors. — Pension and Retirement Benefits | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Civil Writ Jurisdiction Case No.8567 of 2012

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====================================================== Suman Kumari W/o Sri Mukesh Kumar Choudhary, resident of villageDadpur PS Bhagwanpur district- Begusarai. .... .... Petitioner Versus 1. The State of Bihar & through the Secretary, Human Resources Development Department, Patna. 2. The District Magistrate, Begusarai 3. The District Teachers Appointment Appellate Authority, Begusarai 4. The Member, District Teachers Appointment Appellate Authority, Begusarai 5. The District Education Officer, Begusarai. 6. The Sub divisional Education officer, Begusarai. 7. The Prakhand Pramukh, Bachhwara block, Begusarai 8. The Block Development Officer-cum-Executive Officer, Bachhwara, Begusarai 9. The Block Education Extension Officer, Bachhwara, Begusarai 10. Rambha Singh, W/0 Sri Mani Kant Choudhary, resident of villageAhiapur Panchayat Secretary Bachhwara district Begusarai 11. Pramod Kumar Yadav, S/o Sri Dularu Yadav, resident of villageBandaur, PS-Rajaura district- Begusarai .... .... Respondents ====================================================== Appearance : For the Petitioner : Mr. Bipin Bihari Singh, Advocate For the Resp. No. 10 : Mr. Rajendra Pd. Singh, Sr. Advocate For the Resp. No. 11 : Mr. Shahnawaz Ali, Advocate For the State : Mr. Mahboor Ashraf, AC to SC27 ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER

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11 20-11-2014 I have heard Mr. Bipin Bihari Singh, learned counsel for the petitioner, Mr. Rajendra Prasad Singh, learned senior counsel for the respondent No.10, Mr. Shahnawaz Ali for respondent No.11 and Mr. Mahboob Ashraf, AC to learned SC 27 for the respondents- the State of Bihar.

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The petitioner has filed the present writ application

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seeking quashing of an order dated 06.02.2012 passed by the District Teachers Appointment Appellate Authority, Begusarai whereby he has allowed an appeal preferred by respondent No.10 and declared the appointment of petitioner illegal as Block Teacher for the block Bachhwara under the district of Begusarai against the post reserved for visually handicapped.

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As per the petitioner, she had applied for the post of Block Teacher for the said block Bachhwara pursuant to an advertisement issued in the year 2008. She claimed her appointment against the post reserved for visually handicapped female (U.R.) which post fell at roster No. 5117. She had 62.67 % marks at the Intermediate level and had 40% visual disability with respect to which she had submitted certificate at the time of submission of application. As per the petitioner’s case there were two posts reserved for women of general category visually handicapped falling at roster point No. 5117 and 5217. She was selected on the basis of her percentage of disability and score at Intermediate level. It is her case in the writ application that she was selected against roster point No. 5217. She was appointed, accordingly, as Block Teacher on 28.12.2010 whereupon she started discharging her duties as Block Teacher in Middle School, Nawada.

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Thereafter, respondent No.10 has filed an application before the District Teachers Appointment Appellate Authority, Begusarai alleging that she had more marks than the petitioner at the Intermediate level and she being older in age had better right to be appointed as Block Teacher, alleging that ignoring her merit point (64.11%) the petitioner was appointed illegally by the authorities. The Appellate Authority noticed the fact that respondent No.10 had submitted her application for being considered as visually handicapped candidate on the ground of 30% disability. She subsequently submitted another certificate showing 40 visual disability. She claimed that she had better merit points at Intermediate level than the petitioner and, therefore, she had better right to be appointed against unreserved female (visually handicapped) candidates than the petitioner for appointment as Block Teacher. The Appellate Authority by the impugned order came to a finding that before preparation of merit list, respondent No. 10 had submitted certificate showing 40% visual disability before the Block Employment Committee which was deliberately ignored. The Appellate Authority held that respondent No. 10 had a valid claim for appointment as Block Teacher against the post reserved for visually handicapped female (U.R.). Accordingly, the Appellate Authority declared the

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appointment of petitioner as Block Teacher to be illegal and directed the Block Employment Committee to appoint respondent No.10 against the post which became vacant upon declaration of appointment of petitioner as illegal.

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This is to be noted that one Pramod Kuamr Yadav had also applied against the post reserved for visually handicapped candidate with 45% of disability and has been impleaded as respondent No. 11 in the present writ application. This is also to be noted, as would appear from an interim order dated 03.05.2012, that it was submitted on behalf of the petitioner that she was selected against roster serial No. 5217 and the appellant before the Appellate Authority was selected in the same category against serial No. 5117. However, according to petitioner respondent No. 10 was not appointed and in her place respondent No. 11 was appointed, who had less merit points. The petitioner, accordingly, asserted that respondent No. 10 ought to have challenged the appointment of said Pramod Kumar Yadav (respondent No. 11) and has wrongly challenged the appointment of petitioner which is not in conflict with her selection.

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On the basis of pleadings of the respective parties in the present proceeding, certain facts have emerged which go to show that respondent No. 10 did not deserve to be considered for

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her appointment as Block Teacher, which facts could not be gone into by the Appellate Authority. I may refer in this regard to the counter affidavit filed on behalf of respondent No.11. It has been stated that respondent No. 10 had filed disability certificate showing only 30% of eye disability and, thus, she did not deserve to be considered for appointment against the post reserved for visually handicapped. It has further been stated that she subsequently submitted certificate of eye disability of 40% so as to claim her appointment against the post reserved for visually handicapped. It has further been stated in the counter affidavit that age of respondent No.10, at the time of submission of her application, was 41 years 6 months and 14 days and, therefore, she was not eligible to be considered for her appointment as Block Teacher.

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The petitioner has brought on record, by way of reply to the counter affidavit filed on behalf of respondent No. 10, an application filed on behalf of respondent No.10 dated 17.11.2008 for her appointment as Block Teacher of Bachhwara block. In the said application she mentioned 397 marks scored by her in Intermediate examination out of 900. She mentioned her percentage of marks at the Intermediate level to 44.11%. Respondent No. 10, as would appear from the impugned order of

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the Appellate Authority, claimed her score to be 64. 11% at the Intermediate level. The Appellate Authority accordingly proceeded that respondent No. 10 had better merit points than petitioner and, accordingly, held the appointment of petitioner to be illegal. The statement made in the reply to the counter affidavit filed on behalf of respondent No. 10 to the effect that she had only 44.11% marks at Intermediate level was not asserted in the writ application and this document has been brought on record by way of reply to the counter affidavit on 19.08.2014. Certainly respondent No. 10 did not have any opportunity to deal with this submission of the petitioner.

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Another plea, which has been taken on behalf of the petitioner, is that before passing of the impugned order, she was not given any opportunity of being heard by the Appellate Authority and it has been contended that there is an error in the order of the Appellate Authority that petitioner submitted statement before the Appellate Authority through post.

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There can be no denial to the fact that on the date when respondent No. 10 submitted her application, she did not have 40% visual disability though percentage of disability has not been provided in Bihar Panchayat Elementary Teachers (Appointment and Service Conditions) Rules, 2006 for grant of benefit of

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reservation to physically handicapped candidates, a division Bench of this court vide its order dated 13.02.2014 passed in LPA No. 850 of 2013 held as follows:-

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“If the Rules do not provide for any percentage of handicap before a candidate can be treated in handicap category, we find no arbitrariness in the action of the respondents in adopting the Government of India guidelines for the same. It cannot be said that the respondents have acted unreasonably, arbitrarily or in discriminatory manner. In our opinion the reservation being horizontal in nature cannot be confined to one category of handicap only by insisting that irrespective of the level of handicap it can go only to persons with a particular handicap only if a candidate of that category is not available and not to any other handicapped category.”

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The Block Education Extension Officer in his statement before the Appellate Authority took a specific stand that name of respondent No. 10 was not included in the merit list because she had submitted certificate showing 30% disability whereafter she submitted another certificate showing 40% disability. It appears that the Block Education Extension Officer presented before the Appellate Authority the original application filed by respondent No. 10 dated 17.11.2008. Respondent No. 10 produced before the Appellate Authority, upon demand, the certificate showing 40 visual disability. From the order of the Appellate Authority it appears that the said certificate was signed by the Medical Superintendent/ Chief Medical Officer on 17.11.2008 which was issued on 28.11.2008. Though, no date has

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been mentioned as to when respondent No. 10 submitted before the Block Appointment Committee her certificate showing 40% of disability, the Appellate Authority held that on the basis of the said certificate her name was rightly placed in the merit list and the Block Education Extension Officer despite that mentioned against respondent No. 10 that her name was not there in the merit list.

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In my opinion, the order of the Appellate Authority cannot be sustained on two counts. Firstly, for the reason that there is no finding by the Appellate Authority that as on the last date of submission of application for appointment, respondent No. 10 claimed to be qualified for being considered as visually handicapped candidate. The law is well settled that eligibility criteria/ qualification of a candidate for the purpose of selection has to be considered as on the date of application. Respondent No. 10, on the date of application, did not claim to be having 40% visually handicapped. Secondly, copy of application filed by respondent No. 10 shows that she had only 44.11% of marks at Intermediate level. Her claim, therefore, that she had better merit points than the petitioner is seriously doubted. For these reasons, I set aside the order of the Appellate Authority dated 06.02.2012 passed in Appeal case No. 23/11. The matter is remanded back to

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the Appellate Authority to consider the matter afresh after giving opportunity of hearing to the concerned parties. The Appellate Authority will be required to specifically deal with merit points of respondent No. 10 vis a vis the petitioner and other candidates and will also consider whether on the date of submission of her application respondent No. 10 had eligibility to be considered as visually handicapped candidate. The Appellate Authority shall be at liberty to call for a report from the concerned Medical Superintendent/ Chief Medical Officer who issued the certificate of respondent No. 10 showing her to be 40% visually handicapped. The court directs the Appellate Authority to pass order afresh upon taking into account the facts, as noted above, within a period of six months from the date of receipt/ production of a copy of this order.

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This writ application is disposed of, accordingly, with the observations, as above.

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(Chakradhari Sharan Singh, J)

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BKS/-

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Suman Kumari v. the State of Bihar and Ors.

Case brief

What is this about?

What did the court decide?

Suman Kumari v. the State of Bihar and Ors.

Case brief

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What did the court decide?

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