CAV JUDGMENT

Date :22-03-2024 Heard learned counsel for the petitioners, learned counsel for the State and learned counsel for the respondent no.7.

2. This writ application has been filed for the following relief(s):-

“(i) For issuance of writ in nature of mandamus and directing and commanding the Respondent authorities for setting aside the order dt.31.08.2020 passed by the Chairperson State Appellate Authority, Education Department, Niyojan Bhawan, Bihar, Patna, whereby and where under State Appellate Authority has allowed the Appeal filed by the respondent no.8 for further appointment on counselling the petitioners and further direction to respondents authorities i.e. the Block Education Officer, Madhwapur to hold Fresh counselling for the appellant and three private respondents and all other candidates having higher merit lists than petitioners in physical education under BC/General category and take final decision.

(ii) For further direction to the respondent authorities to not disturb the petitioners who are working from last 10 years.

(iii) For any other relief or reliefs to which the petitioner is found entitled in accordance with law for the end of justice.”

3. The respondent no.7 has challenged the appointment of the petitioners as Block Teacher (Physical Education) in the District of Madhubani in the second phase of employment, 2008 before the District Teachers Appellate Authority on the ground that notwithstanding the fact that respondent no.7 was high in the merit list, he was not allowed to participate in the counseling.

4. The District Teachers Appellate Authority dismissed the claim of respondent no.7 on the ground that in his application, there was a complaint regarding his not being allowed to be counseled on 28.12.2010. It was held that without adverting to the developments which might have taken place on 12.08.2010, the District Teachers Appellate Authority was not in a position to declare the appointment of the petitioners to be beyond Rules. Aggrieved by the aforesaid order of the District Teachers Appellate Authority, the Respondent no.7 preferred an appeal before the State Appellate Authority, who did not agree with the order passed by the District Teachers Appellate Authority. The order passed by the District Teachers Appellate Authority was set aside by the impugned appellate order and the State respondents were directed to undertake a fresh process of counseling as early as possible.

5. Mr. Rajeev Kumar Singh, learned Advocate for the petitioners submitted that first round of counseling for the appointment of Block Teachers was done on 21.04.2009. On that date, along with the petitioners, respondent no.7 had also participated. A provisional merit list was prepared in which admittedly the name of respondent no.7 was placed above the names of the petitioners. On 06.08.2010, an advertisement was issued which was in the nature of notice to all such candidates, to appear for fresh counseling on 12.08.2010. The petitioners appeared but the respondent for some reason was absent. Later, the process was again deferred for 28.12.2010. On that date, since the petitioners were found to be eligible and since their names were included in the merit list against the existing vacancy, they were appointed. It has thus been submitted that the State Appellate Authority, without verifying whether the respondent no.7 had furnished the requisite documents or respondent no.7 was present on 12.08.2010 or not, has given a finding only on the basis of a complaint made by respondent no.7, that he was not allowed to participate in the counseling which was held on 28.12.2010.

6. Though the petitioners have not been immediately removed from the post but directing for a fresh counseling without there being any basis for coming to the conclusion that the appointment of the petitioners was in breach of any one of the rules, is unjustified and uncalled for.

7. Learned counsel for the petitioners submits that in a change of circumstance, the