IN THE HIGH COURT OF JUDICATURE AT PATNA
ANIL KUMAR SINHA, J.
CWJC No.1852 of 2019
(4.12.2023)
Sunita Singh ... Petitioner
vs.
State of Bihar & Ors. ... Respondents
Service Law – Appointment – Cancellation – Petitioner is librarian in high school – Five vacancies of Librarian were available – Three posts allocated General Category, one post for Extremely Backward Classes and one post for Schedule Caste category – Respondent No. 7 belongs to general category and petitioner belongs to Backward Class category – Marks obtained by respondent no. 7 higher than marks obtained by petitioner – Two categories lying vacant – Four candidates participated in counselling for three posts of general category – Merit list was prepared, but respondent no. 7 from general category wrongly left out – Was to be placed at serial no. 2 in merit panel--District Appellate Authority directed for appointment of respondent no. 7 on post of librarian--co-ordinate Bench favours the decision – Only two posts of Librarian, under Extremely Backward Class category and Schedule Castes category are vacant, upon which no direction can be issued for appointment of respondent no. 7 and/or petitioner inasmuch as both of them do not fall under those categories – Petitioner has to give way for appointment of respondent no. 7 on post of Librarian for General Category – Respondent no. 7 has better right of being appointed – Do not find any infirmity in impugned order – Writ application dismissed – No order as to costs. (Paras 19 to 22 and 26 to 29)
Anil Kumar Sinha, J.—The petitioner, by way of present writ application, has challenged her removal from the post of Librarian, in High School, Dalmianagar, Dehri-on-sone, Rohtas, vide Memo No. 2058, dated 07.12.2018 (Annexure 1), issued by the Nagar Executive Officer -cum- Nagar Shikshak Niyojan Samiti, Nagar Parishad, Dehri, Dalmianagar (respondent no. 6).
2. The brief facts, giving rise to the present writ application, is that on 30.11.2008, an advertisement was published in the daily Newspaper for appointment on the posts of Librarian in different High schools in the Nagar Parishad, Dehri, Dalmianagar.
3. Five vacancies of Librarian were available in different High Schools falling within the Nagar Parishad, Dehri, Dalmianagar and as per roaster clearance, three posts were allocated to General Category, one post for Extremely Backward Classes and one post for Schedule Caste category.
4. The petitioner, respondent no. 7 and several others applied, and after completion of process of selection, date of counselling was fixed on 13.07.2015.
5. It is the case of the petitioner that along with her, only two other candidates appeared in counseling process, namely, Sunil Kumar and Puja Kumari Soni, and respondent no. 7, namely, Tej Narayan Pathak did not participate in the counselling process. Appointment letter was accordingly issued to the petitioner, vide Memo No. 411, dated 23/07/2015 (Annexure 3) by respondent no. 6.
6. Vide Memo No. 559, dated 27.08.2015, the petitioner was informed that her appointment has been cancelled due to clerical mistakes, that the date concerning the employment process was not published over NIC.
7. The petitioner filed an appeal, bearing Appeal No. 14 of 2015, before the District Appellate Authority, Rohtas, Sasaram, which was allowed on 28.01.2016 and the order of cancellation of her selection was set aside and direction was issued to the respondents to reinstate her back on the post of Librarian, observing that her valid selection/appointment cannot be cancelled solely on the ground that the data concerning the employment process could not be uploaded on the NIC website.
8. The Respondent No. 7 challenged the appointment made by the Employment Unit, by filing Appeal No. 03 of 2016 before the District Appellate Authority, in which the petitioner was made Opposite Party No. 2. The said appeal was allowed vide order, dated 15.02.2017, wherein a direction was issued to appoint respondent no. 7 as Librarian on the vacant post. It was observed that two posts are vacant in two different schools, namely, High School, Dalmianagar, and Ramarani Jain girls High School, Dehri. The objection of the petitioner that the appeal filed by the respondent no. 7 is time barred was rejected by the District Appellate Authority and the District Appellate Authority arrived at the conclusion that the respondent no. 7 had participated in the counselling on 13.07.2015 and obtained 58.91 per cent, due to which he was entitled to be placed at serial no. 2 in the panel.
9. Since the aforesaid order of the District Appellate Authority was not complied, the respondent no. 7 approached this Court, in CWJC No. 7900 of 2017, and a co-ordinate Bench of this Court, vide its order, dated 12.04.2018, directed the respondent no. 6 to implement the order passed in Appeal No. 03 of 2016, by the District Appellate Authority, dated 15.02.2017, within a maximum period of 60 days.
10. It is in this background the appointment of the petitioner was cancelled by the impugned order for appointment of respondent no. 7.
11. Learned Counsel for the petitioner submits that before passing the impugned order of cancellation of the appointment of the petitioner, no show cause or opportunity of hearing was given to her. As such, the same is violative of principle of Natural Justice.
12. He further submits that the order passed by the District Appellate Authority and the High Court could not be read in the manner to cancel the appointment of the petitioner. The petiti
An appointment made in violation of prescribed rules is void ab initio; no notice or hearing is required for cancellation as per legal principles governing natural justice.
The termination of the teacher was unlawful as it violated principles of natural justice, and the appointment was validly made under due process against a clear vacancy reserved for Scheduled Tribe.
The court affirmed that eligibility criteria for reserved positions must be strictly adhered to, ruling against the appointment of an ineligible candidate.
The vacancy caused due to the termination of services constitutes a fresh vacancy, and the Tribunal's directions exceeded its jurisdiction.
The main legal point established in the judgment is that the appointment of the petitioner as a librarian was lawful and in accordance with the relevant government orders and recruitment rules.
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