Brahmdeo Yadav vs The State Of Bihar And Ors
2021 Latest Caselaw 5561 Patna

           IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.7307 of 2017
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Brahmdeo Yadav Son of Sri Mahabir Yadav resident of Village - Simraha, P.S.

- Kusheshwar Asthan, District - Darbhanga Bihar.

... ... Petitioner/s Versus

1. The State Of Bihar

2. The Principal Secretary, Education Department, Government of Bihar, Patna Bihar.

3. The Director Primary Education, Bihar, Patna Bihar.

4. The District Magistrate, District - Darbhanga Bihar.

5. The District Education Officer, Darbhanga Bihar.

6. The District Programme Officer, Darbhanga Bihar.

7. The Block Development Officer, Kusheshwar Asthan Cum Secretary, Block Teacher Selection Committee,

8. The Education Officer, Kusheshwar Asthan, District - Darbhanga Bihar.

9. The Mukhiya, Gram Panchayat Raj, Bisharia Bujurg Block, P.S. -

Kusheshwar Asthan, District - Darbha

10. The Panchayat Sewak Cum Panchayat Secretary, Gram Panchayat Bisharia Bujurg, Block - Kusheshwar Ast

11. Santosh Kumar Poddar Son of Late Babu Poddar Resident of Village -

Mohim, P.S. - Kusheshwar Asthan, District - Darbhanga Bihar.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Raju Giri, Adv.

Mr. Santosh Kumar Gupta, Adv.

Mr. Ranjeet Kumar Yadav, Adv.

For the Respondent/s : Mr. Amit Bhushan, Adv. For respondent no. 11. : Mr. Sanjay Kumar, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR ORAL JUDGMENT Date : 29-11-2021

1. Heard Mr. Raju Giri, the learned counsel for the

petitioner, Mr. Sanjay Kumar, the learned counsel for the

respondent no. 11 and Mr. Amit Bhushan, the learned

counsel for the respondent nos. 2 to 10.

Patna High Court CWJC No.7307 of 2017 dt.29-11-2021

2. Pursuant to an advertisement in the year 2006

for appointment of Panchayat Teachers in Raj Bisharia

Mohim Bujurg Gram Panchayat, Kusheshwar Asthan in the

district of Darbhanga, the petitioner and the respondent no.

11 had applied. The petitioner had applied in the category

of physically disabled person and had more marks than the

respondent no. 11. Despite that, when respondent no. 11

was appointed on the said post, he had made a complaint

before the appropriate authority leading to the constitution

of a Two Men Enquiry Committee. The enquiry was held but

a joint report of the enquiry was submitted under the

signature of the Block Education Officer and the Block

Development Officer. The rules in that regard indicated that

the authority to conduct the enquiry was only the Block

Development Officer. However, as a result of the aforesaid

enquiry, the petitioner was appointed on the post of

Panchayat Teacher in place of respondent no. 11.

3. The respondent no. 11 thereafter approached

this Court vide C.W.J.C. No. 3941 of 2008 and challenged Patna High Court CWJC No.7307 of 2017 dt.29-11-2021

such appointment of the petitioner on the ground that

before the next date fixed in the enquiry, the report was

submitted under the joint signature of the B.D.O. and

B.E.O. the latter not being the concerned authority for being

part of the enquiry. On such ground and on another petition

on similar ground having been allowed, this Court quashed

the appointment of the petitioner (Brahmedeo Yadav) and

permitted the State to start to a fresh proceeding in case it

was deemed necessary and the respondent no. 11 was

directed to be reinstated in service with all consequential

benefits.

4. The order passed by the learned Single Judge

was challenged in appeal by the petitioner vide L.P.A. No.

1756 of 2015. The Appellate Court, taking into account that

the respondent no. 11 also was not properly associated with

the enquiry, held that the learned Single Judge ought not to

have given any direction to reinstate him. If the appointment

was quashed by the learned Single Judge, the Appellate

Court maintained, the only natural consequence to that order

was to direct the appropriate authority to conclude the Patna High Court CWJC No.7307 of 2017 dt.29-11-2021

enquiry after giving adequate opportunity to the writ

applicants and other affected persons.

5. The part of the order which directed for

reinstating the respondent no. 11 only because the enquiry

conducted was not fair and reasonable was not approved of.

6. The Appellate Court, therefore, modified the

learned Single Judge's order by directing that the order of

reinstatement will not be made effective and the official

respondents shall proceed with the enquiry afresh and take

appropriate decision in accordance with law.

7. Mr. Giri, learned Advocate has pointed out that

the order passed by the Appellate Court was blatantly flouted

in as much as the respondent no. 11 was not removed from

service and the enquiry was conducted behind the back of

the petitioner. In support of the aforesaid contention, the

enquiry report has been adverted to which reflects that

merely by perusing the concerned register, a decision was

taken by the Committee that the appointment of the

petitioner was bad in the eyes of law. There is nothing on

record to indicate that in compliance of the order of the Patna High Court CWJC No.7307 of 2017 dt.29-11-2021

Appellate Court, the respondent no. 11 was removed from

service during the pendency of the enquiry. Annexure -10,

which is an information to public in general contained in

memo no. 63 dated 16.01.2017 further confirms the

correctness of the statement of the petitioner that during the

enquriy, the respondent no. 11 continued to work as

Panchayat Teacher.

8. Based on this ground alone, the learned counsel

for the petitioner has submitted that the enquiry report is

absolutely unsustainable in the eyes of law and should be

treated as non-est. Had the petitioner been made known of

the continuing enquiry and the respondent no. 11 continuing

in service, he would have surely brought these facts to the

Appellate Court.

9. Mr. Sanjay Kumar on the other hand, submits

that the petitioner has not approached the State Appellate

Authority, which is the correct forum for him to agitate his

claim. Invoking the writ jurisdiction of this Court which is a

discretionary remedy without availing of the provisions of

appeal before the State Appellate Authority, no order should Patna High Court CWJC No.7307 of 2017 dt.29-11-2021

be passed in this writ petition. Secondly, it has been argued

that the enquiry was made by the official respondents on the

documents which were available with them. From the

enquiry report, it has been shown by Mr. Kumar that there

has been an interpolation in the marks and even the

application of the writ petitioner was not received for his

counselling and his consequent appointment on the post of

Panchayat Teacher.

10. The learned counsel for the State, however, has

fairly conceded that the order passed by the Appellate Court

was not followed in its entirety and in its letter and spirit in

as much as the respondent no. 11 was allowed to continue

as Panchayat Teacher and the enquiry was concluded

without noticing the writ petitioner.

11. For the reasons that the order passed by the

Appellate Court was not followed in its entirety and the

enquiry was conducted behind the back of the petitioner, the

enquiry report is hereby quashed.

12. The concerned authority is directed to implement

the order passed by the Appellate Court in its entirety. A Patna High Court CWJC No.7307 of 2017 dt.29-11-2021

fresh enquiry be conducted by the same authority after

noticing the petitioner and the respondent no. 11 and all

other affected parties. The enquiry report be submitted

within a period of thirty days from the date when the enquiry

commences. The enquiry shall commence from a week after

a copy of this order is produced before the concerned

authority.

13. Till the time the enquiry is concluded, the

respondent no. 11 shall not be treated in service and status

quo shall be maintained.

14. Necessary sequel action shall be taken by the

concerned authorities after the report in this regard is

received.

15. The writ petition stands allowed to the extent

indicated above.

(Ashutosh Kumar, J)

sunilkumar/-

AFR/NAFR                NAFR
CAV DATE                N/A
Uploading Date          02.12.2021
Transmission Date       N/A