Manju Devi Pati- Sri Shivshankar Prasad Gram- Amthua, Thana- Kako, Zila- Jehanabad v. Bihar Rajya

Patna High Court CWJC No.15483 of 2012 (2) dt.21-02-2013 2 itself was set aside by the Deputy Development Commissioner, Jehanabad vide order dated 26.12.2011, of course without compliance of the principles of natural justice and, in fact, even without issuance of notice and/or affording opportunity of hearing to the petitioner. From the order of the Deputy Development Commissioner dated 21.06.2004 which, at that point of time, was perfectly justified in view of the delegation of power under the Angan Bari Sevika guidelines it would be clear that he had directed for selection and appointment of a better candidate Smt. Pramila Kumari, who was more qualified than the petitioner. If the petitioner was aggrieved by the said decision of the Deputy Development Commissioner, she had a remedy to move in appeal before the Divisional Commissioner but she did not do so and moved this Court where the matter after being kept for almost seven years, the impugned order was set aside only on the ground of violation of principles of natural justice and the matter was remitted back the Deputy Development Commissioner, author of the impugned order dated

21.06.2004. It however appears that the learned counsel for the petitioner or the learned counsel for the State did not point out to this Court at the time of disposal of C.W.J.C. No. 14097 of Patna High Court CWJC No.15483 of 2012 (2) dt.21-02-2013 3 2005 that there was a change in the Angan Bari Sevika guidelines wherein the power relating to entertaining and deciding the complaints relating to selection and appointment on the post of Anganbari Sevika was vested to the Collector of the district. In such circumstances even though the matter relating to grievance of the petitioner relating to her selection and appointment on the post of Anganbari Samiti pursuant to selection process under undertakes in 2004 had to be decided by the Collector of the district it was the Deputy Development Commissioner who in view of the direction of this Court in the order dated 1.8.2011 was duty bound to pass an order while complying with the order of this Court. That is how the present impugned order has come into existence wherein the Deputy Development Commissioner, Jehanabad on 23.12.2011 has held that as Pramila Kumari, in the meantime, in view of the election held has been elected on the post of Mukhia and has consequently become disqualified, the post of Angan Bari Sevika in question should be filled up afresh by starting a fresh selection procedure in view of the new norms laid down by the State Government for the post of Angan Bari Sevika. Learned counsel for the petitioner has however assailed the aforesaid view taken by the Deputy Development Commissioner, Jehanbad in the impugned order dated 23.12.2011. Patna High Court CWJC No.15483 of 2012 (2) dt.21-02-2013 4 His first objection is that the earlier order which was passed by the Deputy Development Commissioner on 21.06.2004 was itself without any notice to the petitioner. In the considered opinion of this Court, that issue has already been decided by this Court while setting the order in the connected writ application being C.W.J.C. No. 14097 of 2005 which, as noted above, was disposed of on

01.08.2011 only on the ground of violation of principles of natural justice. As with regard to the exercise of power of the Deputy Development Commissioner in passing the impugned order, this Court would not find any error inasmuch as if there was a direction given by this Court itself in the order dated 1.8.2011 directing the Deputy Development Commissioner to decide the issue, the same had to be complied with by the D.D.C. If the petitioner was by that time, aware that the power of D.D.C. had already been stripped of and the Collector had become the competent authority, nothing had prevented the petitioner to seek modification of the order dated 1.8.2011 but having failed to do so, she cannot now challenge her own fault or wrong committed by her. The D.D.C. and the Collector being the Officer of the same level and there being no provision for appeal from the Patna High Court CWJC No.15483 of 2012 (2) dt.21-02-2013 5 order of the D.D.C. to the Collector, this Court would not find any merit in the submission of the learned counsel for the petitioner that the appeal filed by the petitioner against the order of the D.D.C. dated 23.12.2011 has not been entertained by the Collector of the district. The question, therefore, which would ultimately boil down is as to whether the D.D.C. was correct in his approach in directing for fresh selection and not allowing the petitioner to get benefit of her earlier selection in the year 2004. As noted above, the selection of the petitioner in the year 2004 was definitely made by ignoring a better candidate Pramila Kumari who in all respect was better qualified than the petitioner. Pramila Kumari was Intermediate whereas the petitioner was only matriculate and, therefore, if that selection was set aside by the D.D.C. in the first round his order on remand by this Court in the second round in not directing the appointment of Pramila Kumari, who by now has become Mukhia in the election held after the year 2004, also cannot be found to be bad on fact and law. The vacancy which got created on account of illegal selection of the petitioner has to be filled now in view of the new norms issued by the State Government. It has to be kept in mind that in the year 2011 the State Government has issued a new guidelines under Patna High Court CWJC No.15483 of 2012 (2) dt.21-02-2013 6 which first priority for appointment on the post of Angan Bari Sevika has to be given to a Scheduled Caste candidate and only when a Scheduled Caste candidate is not available, the others can be selected for the post of Angan Bari Sevika. Considering all these aspects, the decision taken by the D.D.C. does not suffer from any error. The last submission of learned counsel for the petitioner that even the order dated 23.12.2011 was passed by the D.D.C., Jehanabad in violation of the order of this Court dated

1.8.2011 in C.W.J.C. No. 14097 of 2005 and, in fact, without giving notice and/or opportunity of hearing to the petitioner cannot be now re-agitated by the petitioner in view of the fact that this very question was agitated by her in her contempt application being M.J.C. No. 175 of 2012 and this Court after noticing the aforementioned grievance of the petitioner had held as follows :- “I have perused the order passed the Deputy Development Commissioner, Jehanabad (Annexure-4). In my view, the order of this Court has substantially been complied with by the said opposite party.” In view of the aforesaid conclusion already arrived at by this Court in the contempt matter, governing both the petitioner and the respondent, this Court cannot interfere with the same. Patna High Court CWJC No.15483 of 2012 (2) dt.21-02-2013 7 Reliance placed by the learned counsel for the petitioner on the judgment of this Court in the case of Manjula Kumari Vs. State of Bihar reported in 2012(3) B.L.J.,159 with special reference to paragraph 20 of the judgment also appears to be wholly misconceived. First of all this Court will have to hold that the scope of natural justice in the second round was confined to consideration of the case of the petitioner because in the order dated 1.8.2011 in C.W.J.C. No. 14097 of 2005 wherein the petitioner had assailed the earlier order passed by the D.D.C. dated

26.01.2004, the only direction given by this Court was as follows:- “Having heard learned counsel for the petitioner and on going through materials available on record, this Court is satisfied that the respondent no. 4 who is author of Annexure-1, is required to pass a fresh order in accordance with law. This is deemed necessary keeping in view the fact that respondent no. 6 is said to be now Mukhiya of the Gram Panchayat and the Aam Sabha leadership/chairmanship. This Court, however, is not pronouncing any view on the claim of the petitioner of having discharged her duties on the post to which she was selected initially but was cancelled by the order contained in Annexure-1. Accordingly, the matter goes on remand to the respondent (Deputy Development Commissioner, Jehanabad) to pass fresh order in accordance with law. Petitioner would be at liberty to place relevant facts before the said respondent by filing appropriate representations within four weeks along with a copy of the present order. respondent Deputy Development Commissioner is now required to pass a fresh order in accordance with law and The no. 4 Patna High Court CWJC No.15483 of 2012 (2) dt.21-02-2013 8 taking into consideration the representation, if any, filed by Order dated the petitioner. 21.06.2004 (Annexure-1) shall not preclude the said respondent from passing a fresh order in the light of the observation made hereinabove.” (underlining for emphasis) As would be apparent, this Court had not directed the D.D.C. to issue a fresh notice or to extend fresh opportunity of personal hearing to the petitioner and infact the petitioner was only given liberty to file a representation along with a copy of this order. The petitioner had also filed such representation as is admitted by her in paragraph no. VII of the writ petition which reads as follows:- ^^;g fd lh0MCyw0ts0lh0 la0&14097@2005 esa ikfjr ekuuh; mPp U;k;ky; iVuk dk vkns’k fnukad&1-8-2011 dk ikyu djokus ds fy, vkosfndk ,d vH;kosnu fnukad 12-8- 2011 mi fodkl vk;qDr tgkukckn ds le{k izLrqr dh FkhA** The D.D.C. while passing the fresh order has definitely considered the aforesaid representation of the petitioner as would be apparent from the following portion of impugned order:- lh0 MCyw0ts0lh0 ua0 14097@2005 eatw nsoh ouke jkT; ljdkj ,oa vU; esa fnukad 01-08-2011 dks ikfjr vkns’k ds vkyksd esa v|ksgLrk{kjh dks Fresh Order ikfjr djus dk vkns’k fn;k x;k gSA vkaxuokM+h dsUnz veFkqvk mRrjh] iz[k.M&dkdks] ftyk&tgkukckn esa Jherh eatw nsoh dk p;u vkaxuokM+h lsfodk ds in ij xzke lHkk ds ek/;e ls fnukad 06-02-2004 Patna High Court CWJC No.15483 of 2012 (2) dt.21-02-2013 9 dks fd;k x;k FkkA vkaxuokM+h lsfodk ds in ij p;u gsrq ,d vU; vkosfndk Jherh izfeyk dqekjh ds }kjk ;g ifjokn fn;k x;k Fkk fd esjh ;ksX;rk p;fur lsfodk ls vf/kd gS] blfy, ;ksX;rk ds vk/kkj ij esjk gh p;u gksuk pkfg,A tkap ds dze esa Hkh bl ckr dh iqf"V gqbZ fd p;fur lsfodk Jherh eatw nsoh] eSfVzd gS ,oa ifjoknh izfeyk dqekjh] vkbZ0,0 mRrhZ.k gSa blh vk/kkj ij Jherh eatw nsoh ds p;u dks jn~n djrs gq, iqu% fu;ekuqlkj ifjoknh Jherh izfeyk dqekjh dk p;u djus dk funs’k fn;k x;k FkkA orZeku esa Jherh izfeyk dqekjh] xzke iapk;r&veFkqvk] iz[k.M&dkdks esa eqf[k;k ds in ij fuokZfpr gSa bl dsUnz ij vU; fdlh efgyk dk p;u ugha fd;k x;k gSA pqafd iwoZ dh ifjoknh Jherh izfeyk dqekjh eqf[k;k ds in ij fuokZfpr gSa p;u izfdz;k Hkh blh chp cny pqdh gSA vr% ubZ p;u izfdz;k ds vUrxZr iqu% lsfodk@lgkf;dk ds p;u dh izfdz;k cky fodkl ifj;kstuk inkf/kdkjh] dkdks vfoyEc ’kq: djsaaA lkFk gh lkFk Jherh eatw nsoh dks p;u izfdz;k esa izkFkfedrk fn;k tk;A** The aforesaid order which has been passed has also been approved by this Court while disposing of the contempt application filed by the petitioner. In that view of the matter, this Court would not find violation of the principles of natural justice to have vitiated the impugned order. The concept of natural justice rightly held in the case of Manjula Kumari (Supra) is not a codified law and its application will depend on the facts of each case. Even consideration and disposal of representation has been held by the Supreme Court to be compliance of natural justice. Reference in this connection may be usefully made to the Patna High Court CWJC No.15483 of 2012 (2) dt.21-02-2013 10 judgments of Apex Court in the case of A.K. Gopalan Vs. State of Madras reported in AIR 1950 S.C. 27, F.N. Roy Vs. Collector of Customs reported in AIR 1957 SC 648, Union of India Vs. Jyoti Prakash Mitter reported in AIR 1971 S.C. 1093, State of Assam Vs. Gauhati Municipal Board reported in AIR 1967 S.C. 1398, State of Maharashtra Vs. Lok Shiskhan Sanstha reported in AIR 1973 S.C. 588 and Union of India Vs. Prabha Valkar reported in AIR 1973 S.C. 2102. In all these cases it has been held by the Apex Court that oral hearing is not sine quo non of natural justice and action/order can not be set aside only on the ground that personal hearing was not given. That being so, this writ application is wholly misconceived and is, accordingly, dismissed. Amin/- (Mihir Kumar Jha, J)