Patna High CourtRajesh Das vs The State Of Bihar & Ors on 9 March, 2017Author:Ahsanuddin AmanullahBench:Ahsanuddin AmanullahIN THE HIGH COURT OF JUDICATURE AT PATNA

               Civil Writ Jurisdiction Case No.4311 of 2010
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Rajesh Das S/O Shri Jagdish Das R/O Vill.- Mobarkpur, P.O.- Shankh, P.S.-
Muffasil Begusarai, Distt.- Begusarai, At Present Posted And Working As
Panchayat Teacher In Govt. Primary School Tulsipur, Anchal- Begusarai, Distt.-
Begusarai
                                                                .... ....   Petitioner/s
                                        Versus
1. The State Of Bihar
2. The Principal Secretary, Human Resources Development Deptt., Govt. Of Bihar,
Patna
3. The Director, Primary Education Bihar, Patna
4. The District Magistrate, Begusarai
5. The Divisional Commissioner, Munger Division, Munger
6. The Deputy Development Commissioner-Cum-Chairman, District Education
Establishment Committee, Begusarai
7. The District Superintendent Of Education , Begusarai
8. The District Superintendent Of Education-Cum-District Programme Coordinator
Bihar Education Project, Begusarai
9. The Block Development Officer Begusarai, Distt.- Begusarai
10. The Block Education Officer Begusarai, Distt.- Begusarai
11. Shrimati Ramlila Devi W/O Shri Ram Pratap Sharma R/O Vill.- Rajmahala,
P.O.- Shankh, P.S.- Muffasil Begusarai, Distt.- Begusarai, The Mukhiya Of Gram
Panchayat Raj Shankh, Block- Begusarai, Distt.- Begusarai
12. Shri Ram Udgar Paswan The Panchayat Secretary Of Gram Panchayat Raj
Shankh, Block- Begusarai, Distt.- Begusarai
13. The District Teacher Employment Appellate Authority, Begusarai
14. Shri Manoj Kumar S/O Shri Lalo Chaudhary R/O Vill.- Rajmahala, P.O.-
Sankh, P.S.- Begusarai Muffasil, Distt.- Begusarai
                                               .... .... Respondent/s
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Appearance :
For the Petitioner    :    Mr. Umesh Kumar Mishra, Advocate
For the State                 :         Mr. Nirbhay Prashant, AC to SC 17
For the Respondent No. 14     :         Mr. Rajendra Narain, Sr. Advocate with
                                        Mr. Anant Kumar Sinha and
 Patna High Court CWJC No.4311 of 2010 dt.09-03-2017

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                                     Mr. Umesh Kumar Roy, Advocates

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    CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH
                                        ORAL JUDGMENTDate: 09-03-2017


                     Heard learned counsel for the parties.The petitioner has moved the Court against the order

        contained in Memo No. 109 dated 10.02.2010 passed the District

        Teachers Employment Appellate Authority, Begusarai (hereinafter

        referred to as the 'Authority') by which Appeals No. 898 of 2009 and

        1061 of 2009 filed by the petitioner have been dismissed, confirming

        the order contained in Memo No. 08 dated 16.06.2009 issued by the

        Gram Panchayat Raj Shankh, in the district of Begusarai.The petitioner, along with the respondent no. 14 and one

        another person, was appointed in the said Gram Panchayat as Shiksha

        Mitra in the year 2005 on the post reserved for Scheduled Caste.

        Later, in the year 2008, it was detected that out of 3 posts, one

        Awadhesh          Das      is     undisputedly   having       the   maximum

        percentage/weightage point whereas between the petitioner and

        respondent no. 14 only one seat was available for the General

        Scheduled Caste category whereas the other seat was for the

        Scheduled Caste female category. The dispute arose as to whether the

        petitioner or the respondent no. 12 should be deemed to have been
 Patna High Court CWJC No.4311 of 2010 dt.09-03-20173/8wrongly appointed on the post of Scheduled Caste female candidate,

        initially the respondent no. 14 was removed and, thus, he moved

        before the Selection Committee, which after going through the entire

        records has come to a finding that in terms of the merit list, the

        petitioner was having less merit compared to the respondent no. 14

        and, thus, the petitioner was directed to be removed and the rightful

        candidate, i.e., the female person belonging to the Scheduled Caste

        was to be appointed. The petitioner being aggrieved by the same,

        moved before the Authority and by order dated 10.02.2010 the said

        appeals have been dismissed.Learned counsel for the petitioner submitted that initially

        the appointment of the petitioner on the post of Shiksha Mitra in the

        year 2005 was correct, as in terms of the guidelines for awarding of

        percentage marks/weightage points, the petitioner having first division

        in Intermediate was to be given 15 points whereas the respondent no.

        14, who had less than 60% marks, was to be given 10 points for

        Intermediate qualification and as he had less than 60% marks in his

        Graduation, only 4 points were admissible, making the total 14 and

        thus, the petitioner having 15 points was higher in merit compared to

        the respondent no. 14. Learned counsel submitted that the controversy

        arose with regard to the counting of the marks of vocational subject,

        which has regularly been done in a routine manner till the year 2007
 Patna High Court CWJC No.4311 of 2010 dt.09-03-20174/8when a clarification came, and the same is no more being counted for

        the purposes of preparing the merit list. Learned counsel further

        submitted that as per the decision of a co-ordinate Bench of this Court

        in the case ofHari Shankar Sah vs. State of Biharreported as 2016

        (4) PLJR 173 it has been held that the Authority has no power to

        examine the legality of appointment of Shiksha Mitra.He further

        placed reliance on a Full Bench judgment of this Court in the case ofKalpana Rani vs. State of Biharreported as 2014 (2) PLJR 665

        wherein it has been held that the power of the Authority to go into the

        merits of the appointment of Shiksha Mitra does not exist and no

        direction can be given for appointment on the post of Shiksha Mitra.Learned counsel has also relied upon an unreported decision of this

        Court in the case ofKiran Kumari Vs. The State of Bihar & Ors.

        (C.W.J.C. No.8921 of 2009)              dated 07.02.2012 by which the Court

        with regard to the same Panchayat has interfered in the matter and set

        aside the disengagement on the ground that before passing of that

        order, no show cause was given to the writ petitioner.Learned counsel for the State and respondent no. 14

        submitted that there is no illegality, either in the order of the Gram

        Panchayat Selection Committee dated 16.06.2009 or in the appellate

        order passed by the Authority dated 10.10.2010. It was submitted that

        the records show that initially the respondent no. 14 and one
 Patna High Court CWJC No.4311 of 2010 dt.09-03-20175/8Awadhesh Das were two persons selected in the Scheduled Caste

        category, whereas the name of the petitioner was added after all other

        categories, which clearly indicate that the petitioner was considered

        and selected against the 3rd post which was reserved for female.

        Learned counsel further submitted that only during issuance of

        appointment letter, respondent no. 14 has been shown to have been

        appointed on the 3rd post, due to which initial order was passed

        against him but on representation made to the Selection Committee

        itself the same has been rectified, after going through the original

        records relating to the said appointment. Learned counsel submitted

        that the contention of the petitioner that the vocational marks be

        added, is also misconceived, for the reason that the marksheet itself

        discloses that only for the purpose of improving the grade such marks

        are to be counted after subtracting 30% marks obtained in the

        vocational subject, but the same shall not be added for the purpose of

        arriving at the percentage obtained by the candidate in the

        examination. It was further submitted that the petitioner having

        himself moved before the Authority, he cannot now take the stand that

        he was not heard while passing of the original order, as the Authority

        has considered the matter on merits after hearing him.Having considered the rival contentions, the Court does not

        find any merit in the present application.Patna High Court CWJC No.4311 of 2010 dt.09-03-20176/8The petitioner can come above the respondent no. 14 on

        merit only if he can show that he has obtained more than 60 % marks

        in the Intermediate examination. From the marksheet issued to him,

        copy of which is Annexure 2 to the writ application, his total marks

        obtained in the compulsory and optional subject is 519, out of total of

        900, whereas in the vocational subject he has obtained 82 out of 100.

        Thus, for the purposes of only improving the division, after

        subtracting 30 marks from the marks obtained in the vocational

        subject, only if by adding the rest results in improving the division of

        the candidate, such improved division shall be awarded but the

        percentage shall not change. In the present case, the exercise of

        awarding points/weightage points/ merit marks was based only on

        percentage obtained in the examination and not on the division. If it is

        accepted that the petitioner was awarded first division, his total marks

        obtained comes to 571 including 52 of the vocational subject, but the

        division is only by taking into account the total of the compulsory and

        optional subjects, i.e., 900. Thus, if the vocational subject total is also

        added, then the total has to be divided by 1000 and then the

        percentage shall come to 57.1 i.e., below 60 %. Thus, from any angle,

        the requirement being that 15 points would be given to the person

        obtaining 60% and more, though in the marksheet the petitioner is

        shown to have got 571 marks, but his percentage is not 60% or above
 Patna High Court CWJC No.4311 of 2010 dt.09-03-20177/8and thus, he is not entitled to 15 points and only to 10 points.Thus,

        the respondent no. 14 having 14 points, is ahead of the petitioner.

        Coming to the point that there is violation of principles of natural

        justice, even if it is accepted that the Selection Committee while

        considering the matter afresh had not given opportunity of hearing to

        the petitioner, but in view of the fact that the petitioner himself had

        moved before the Authority where he got full opportunity to present

        his case and after hearing the same, the order was passed, such

        objection not only stands waived, the requirement of the principle of

        natural justice stands satisfied. Further, the objection taken by the

        petitioner that the Authority has no jurisdiction, cannot be taken by

        the petitioner as he has himself moved before the Authority and was

        not defending himself in an appeal filed by some other person. The

        judgments in the case ofHari Shankar Sah(supra) andKalpana

        Rani(supra) are of no help to the petitioner.In the case ofHari

        Shankar Sah(supra), the jurisdiction of the Authority was underchallenge whereas in the present case the order is that of the Selection

        Committee of the Panchayat itself, which has also been upheld by the

        Authority.In fact, in the case ofKiran Kumari(supra) a coordinate

        Bench of this court has held that the Selection Committee had the

        jurisdiction to go into the matter. The Court would only like to add

        that here is a case where illegality has been detected where a person
       Patna High Court CWJC No.4311 of 2010 dt.09-03-20178/8was appointed on a post which was reserved for some other category,

              i.e., female of the Scheduled Caste, and such illegality cannot be

              allowed to be perpetuated just because of efflux of time.The reliance

              of the petitioner on the order passed by a co-ordinate of this Court in

              the case ofKiran Kumari(supra) with regard to the matter being

              remanded to the Selection Committee of the Panchayat for

              considering afresh as she was not heard is definitely unexceptionable

              but in the present case, when the Authority has gone into the merits of

              the matter after considering the objection of the petitioner and this

              Court has also gone into the merits of the matter, it would be a futile

              exercise to remand the matter to the Selection Committee as it would

              be a mere formality, as it is a well settled principle of law that only for

              the sake of formality, the Court should not interfere, when otherwise,

              the Court is convinced that on merit, the order is sound. Thus, it

              would be a fruitless exercise to remand the matter when the Court is

              convinced that it shall result in passing of the same order.For the reasons aforesaid, the writ petition fails and is

              accordingly, dismissed.(Ahsanuddin Amanullah, J)

Anjani/-AFR/NAFR    AFR
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