SINDHU KUMARI v. THE STATE OF BIHAR

applications were scrutinized and first counseling was made on 2

28.11.2006. On the basis of such counseling a merit list of five candidates was prepared. Petitioner no.1 and four other persons name were included in the merit list. Persons so selected on the basis of first counseling got their appointment letter on 28.11.2006. Second phase of counseling started on 22.2.2007, which continued up to 28.2.2007. Accordingly a merit list was prepared and petitioners other than petitioner no.1 got their appointment letters. All petitioners gave their joining on their posts and continued to discharge their duty till the date their appointments were cancelled and terminated vide impugned letters. Impugned orders have been challenged by the petitioners on the ground that after 18 months of their service, petitioners were terminated without issuing any notice to show cause or assigning any opportunity to present their case though appointments were made observing all relevant rules as provided under 2006 Rules. Impugned orders are challenged as having been passed in violation of rule of natural justice. Secondly it has been submitted by the petitioners that in fact there was no reason for cancelling petitioners appointment. For 18 months of their appointment no one had filed any complaint. In fact respondents authorities had pre decided cancel appointments even though made observing all rules. Counter affidavit has been filed on behalf of respondents 2,3 and 4 who are District Magistrate, Begusarai, B.D.O.Cheria Bariarpur and the Block Welfare Officer, Cheria Bariarpur. In paragraph 7 of the counter affidavit, it is stated that one Punam Rashmi who was also an applicant for the post of teacher had 3 filed an application alleging irregularities in the appointment. The complaint filed by Punam Rashmi has been annexed with the counter affidavit. The complaint petition is un dated. Facts mentioned in the complaint petition that allegation made totally contradiction of the facts relating teachers appointment. Complainant has stated that on 16.7.2006 itself she had made a complaint relating to counselling and appointment in the concerned gram panchayat. Relevant records relating to teachers appointment in the concerned gram panchayat was called from Mukhia respondent no.6. That register has been produced in court which show that first counseling for teachers appointment was made on 28.11.2006. If first counseling was made on 28.11.2006, then there was no occasion for Punam Rashmi for filing any complaint relating to irregularities on

16.9.2006 as till that date even process of appointment had not started. In the complaint petition of Punam Rashmi only reason for challenging the appointments made, is that she having 59.55% marks was not appointed in reserved female category, but persons having lesser marks and below in the merit list were appointed. The merit list has been annexed along with the counter affidavit as well as with the writ application. On perusal of the merit list it transpires that no one having less than 60% marks were appointed in any category. Petitioner no.1 Sindhu Kumari at Sl.no.7 of the merit list had 68% marks, petitioner no.2 Ram Bilash Choudhary at Sl.no.3 got 59.71% marks, petitioner no.3 Krishna Mohan Bharti got 70.22% marks, 4 petitioner no.4 Laxmi Kumari got 60.33% marks and petitioner no.5 Kiran Kumari got 71.33% marks. In this view petitioners and other appointed persons had more than 59.55% marks. No other complaint was made by any one as per the counter affidavit. The allegation which has been made by Punam Rashmi in the complaint petition is non existent and this could not have been a reason for canceling petitioners appointment. One more thing which should have been considered by the B.D.O. before issuing the impugned order directing to cancel the appointment, but ignored, is that the appointment process concluded in the month of February 2007. So far merit list are concerned, were prepared in between 28.11.2006 to 28.2.2007. Rule 9 (kha) (viii) of 2006 Rules provides that after counseling, a draft panel will be prepared and be made public. Within seven days of such publication, objections should be filed. Any objection so filed should be considered by the B.D.O. under Rule 18 of 2006 Rules within 30 days of filing such objection. Rule 2006 do not provide indefinite time for filing objection. In the present case undated complaint was filed, and it was entertained by the B.D.O. The B.D.O. passed order in 2008 after more than 18 months of petitioners appointment. Such arbitrary exercise of power by the B.D.O. is completely in violation of 2006 Rules, as rule do not authorize the competent authority to exercise jurisdiction under Rule 18, for indefinite period. For the reasons stated above, impugned orders contained in Memo no.1175 dated 19.9.2008 passed by the B.D.O. 5 and the order dated 20.9.2008 passed by the Panchayat Secretary Manjhaul are quashed. Petitioners will be deemed to have been in continuous service. The respondents are directed to allow the petitioners to discharge their duty. The salary for the period for which the petitioners remained out of their service on account of the impugned orders will not be treated as break-in service, rather it will be treated as continuous service on the post. The petitioners will be entitled for their salary for that period also. All arrears of salary should be paid to the petitioner within three months from the date of communication/production of a copy of this order. I.A.No.1019 of 2009 has been filed by Urmila Kumari praying therein for similar relief as prayed by the petitioners. Intervener petition cannot be entertained. However, the impugned order has been quashed, the intervener applicant may represent her case before the concerned authority for similar relief. Sss/- (Mridula Mishra, J)