Kalpana Kumari v. The State Of Bihar And ORS

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.5490 of 2016 =========================================================== Kalpana Kumari, Wife of Dr. Sitaram Prasad, at present residing at Village - Bakaur, P.O. Paithana, P.S. - Islampur, District Nalanda and permanent resident of Patel Colony, Sanichara Asthan, Sandalpur Road, P.S. - Sultanganj, District - Patna. .... .... Petitioner/s

Versus

1. The State of Bihar through the Principal Secretary, Department of Education, Govt. of Bihar, Patna.

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

3. The Bihar School Examination Board, Patna through its Secretary.

4. The Chairman, Bihar School Examination Board, Patna.

5. The Secretary, Bihar School Examination Board, Patna.

6. The District Education Officer, Nalanda.

7. The Block Education Officer, Islampur, Nalanda.

8. Smt. Priyanka Sinha, Wife of Shri Om Prakash Prasad, Resident of Mohalla - Yogipur (In front of Shiv Mandir), P.S. - Patrakar Nagar, District - Patna.

9. Md. Mustak Ahmad Ansari, Son of Late Jamaluddin Ansari, In - Charge Headmaster, High School Khodaganj, Nalanda, Permanent address of Village - Sarvahadahdih, P.S. - Khijarsarai, District -Gaya - Cum - Convener, Sarvodaya High school, Bauridhi, P.O. - Bauri Sarai, P.S. -Khodaganj, District - Nalanda. .... .... Respondent/s =========================================================== Appearance :

For the Petitioner/s : Mr. Satyabir Bharti, Advocate For the Respondent/s : Mr. Raj Kishore Roy, G.P.-18 For the Board : Mr. Lalit Kishore, Sr. Advocate Mrs. Binita Singh, Advocate Mr. Sudhanshu Trivedi, Advocate =========================================================== CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY ORAL JUDGMENT Date: 02-04-2018 Heard Mr. Satyabir Bharti, learned counsel for the petitioner, Mr. Baxi S.R.P. Sinha, learned senior counsel for private respondent no.8, Bihar School Examination Board and learned counsel for the State.

2. Mr. Bharti learned counsel for the petitioner has challenged the decision of the District Teachers Employment

2/7 Appellate Authority, Nalanda dated 11.02.2016 passed in Appeal No. 27 of 2015. Primarily he has argued that after the notification dated 13.05.2015 the power of the District Teachers Employment Appellate Authority has undergone a change. Referring to Clause 5 of the said notification, he submits that the erstwhile notification regarding Bihar Rajkiya and Rajyakrit Prarambhik, Madhyamik Avam Ucch Madhyamik Vidyalaya, Rule, 2013 stands repealed and as such the District Teachers Employment Appellate Authority was not competent to enter into the controversy and decide the case, which was ousted by virtue of notification dated 13.05.2015, which created Bihar State Teacher and Employee Grievance Redressal Rule, 2015. He has referred to Clause of the notification dated 13.05.2015, whereby Rule 2013 was repealed.

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3. Mr. Bharti also placed clause 13 of the notification dated 13.05.2015, whereby the jurisdiction of the District Appellate Authority was modified and restricted and the earlier scheme under clause 13:

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4. Mr. Bharti, learned counsel for the petitioner submits that the notification dated 13.05.2015 was published in the official gazette on 06.08.2015 and as such it was effective with effect from the date it was published in the official gazette. The appeal was filed on behalf of respondent on 18.09.2015 after notification dated

5/7 13.05.2015 and the official gazette publication dated 06.08.2015 and as such the Appellate Authority was not competent to decide the appeal preferred by respondent no.8. He submits that the action of the District Teachers Employment Appellate Authority was totally without jurisdiction and as such the order has to be treated as nullity and deserve to be quashed.

5. Mr. Baxi, learned senior counsel for private respondent no.8 submits that the writ petitioner has submitted to the jurisdiction of the appellate authority and as such he cannot be allowed to question the jurisdiction, as the question of jurisdiction has not been raised at the very first instance. He submitted that once the petitioner participated in the proceeding, he is precluded from questioning the jurisdiction of the Tribunal.

6. The issue of jurisdiction is a question of law, which can be raised at any stage in view of the fact that 2013 notification was repealed by subsequent notification dated 13.05.2015 and the same was published in official gazette publication on 06.08.2015. This court is of the considered view that submission to the jurisdiction will not create any jurisdiction in view of the repeal clause whereby 2013 Rule was repealed and in place of 2013 Rule new Rule was placed and under the new Rules, the Tribunal was vested with limited jurisdiction indicated in the amended Rule itself.

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7. It is now well settled that the Tribunals are Forum of limited jurisdiction and it cannot enlarge its scope and jurisdiction, since the notification itself confines the jurisdiction, the Tribunal cannot exercise jurisdiction beyond what is conferred under the notification dated 13.05.2015. Mr. Bharti, learned counsel appearing on behalf of the petitioner submits that in view of the subsequent change, now the forum is available before the Appellate Authority created under the Rules i.e. Bihar Anudanit Dhikshan Sansthan Pradhikar Niymabali, 2015.

8. Mr. Baxi, learned senior counsel in the aforesaid circumstance submits that the writ application may be disposed of with liberty to the parties to approach the forum available under the Bihar Anudanit Dhikshan Sansthan Pradhikar Niymabali, 2015.

9. Considering the nature of controversy, he submits that the Tribunal may be directed to dispose of the appeal filed by the parties at the earliest so that the kind of controversy involved in the present writ application may be disposed of at the earliest.

10. Considering the totality of the facts situation and nature of controversy as to approval of the Professor incharge, the Court is of the view that it would be appropriate for the Appellate Authority that on filing the appeal the same would be decided on priority basis preferably within a period of four months from the date

7/7 of filing of such appeal in view of the fact that the present writ application remained pending before this Court for more than two years. The Court grants liberty to the parties to approach the Tribunal by filing appeal along with a copy of this order. In case, such appeal is filed by the parties, the Tribunal is required to condone the delay in filing the appeal and decide the same on its own merit within the time frame indicated hereinabove.

11. In view of the above, the order as contained in Annexure-10 is held to be without jurisdiction and it is accordingly quashed.

12. The writ application is allowed to the extent indicated hereinabove.

(Anil Kumar Upadhyay, J) Uday/- AFR/NAFR NAFR CAV DATE NA Uploading Date19.04.2018 Transmission Date