Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5495 of 2012 ============================================== Nilu Kumari D/O Sri Ramsamajh Ray And Wife Of Shashi Kumar Singh R/O Village + P.O. Gorgama, P.S. Nayagaon, Distt.- Begusarai. ... .... Petitioner Versus 1.The State Of Bihar Through The Secretary Primary And Adult Education, Human Resources Department, Govt. Of Bihar, Patna 2.The Secretary Primary And Adult Education, Human Resources Department, Govt. Of Bihar, Patna 3.The Director Primary And Adult Education Resources Department, Govt. Of Bihar, Patna 4.The District Teacher Employment Appellate Authority, Begusarai 5.The District Magistrate-Cum-Chairman, Sarva Shiksha Abhiyan, Begusarai 6.The Deptuy Development Commissioner Cum-Vice Chairman Sarva Siksha Abhiyan, Begusarai 7.The District Education Officer, Begusarai 8.The District Superintendent Of Education Cum-District Programme Coordinator, Sarva Siksha Abhiyan, Begusarai 9. The Range Education Officer, Begusarai 10.The Pramukh Panchayat Samittee, Matihani, Begusarai 11.The Block Education Officer, Matihani, Begusarai 12.The Secretary Gram Panchayat Gorgama, Matihani, Begusarai 13.The Block Development Officer, Matihani, Begusarai 14.The Selection Committee Gram Gorgama, Matihani, Begusarai 15.The Headmaster Middle School Kharagpur Dhanuktoli, P.O. Gorgama, P.S. Nayagaon, Distt.- Begusarai 16.Bimlesh Kumar S/O Balmiki Prasad Singh R/O Village + P.O. Bagdov, P.S. Nayagaon, Matihani, District- Begusarai 17.Rani Kumari D/O Gopal Prasad R/O At. P.O. Hanspur, P.S. Nayagaon, District - Begusarai 18.Sunita Kumari D/O Balmiki Prasad Yadav R/O Village - Raniya, P.O. Gauradih, P.S. Sangrampur, District- Munger .... .... Respondents ================================================= Appearance : For the Petitioner : Mr. Aditya Narayan Singh-1 For the State : Mr. M.D. Dwivedi SC 23 Mr. Sourendra Pandey, AC to SC 23 For Respondent no.10 : Mr. Shashi Dhar Jha For Respondent No16 : Mr. Amresh Kr. Singh For Respondent no. 17 : None For Respondent no. 18 : None 2 ================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 4 15-07-2013 Heard learned counsel for the parties. 2. The prayer of the petitioner in this writ application is to quash the impugned order passed by the District Employment Teachers Appellate Tribunal, Begusarai, (hereinafter referred to as the Tribunal) dated 31.01.2012 in two analogous cases no.111 of 2011 and 129 of 2011 whereby and whereunder the Tribunal has held that the petitioner Nilu Kumari having only 64.11 % in the merit list as against respondent no.16, the complainant before the Tribunal, having 71.22 % marks had been favoured by ignoring the more meritorious candidate. The Tribunal, accordingly, has held the appointment of the petitioner illegal and has directed that on the vacancy caused on account of removal of the petitioner, the respondent no.16 should be appointed. 3. Learned counsel for the petitioner has submitted that the Tribunal has failed to consider the most relevant aspect that the counseling of the respondent no.16 was not conducted and, therefore, he would not be legible for appointment. He has further submitted that the plea of respondent no.16 the complainant before the Tribunal was not only directed against the petitioner but also against respondents no.17 and 18 who had ever lesser marks than Respondent no.16 and, therefore, the Tribunal while considering and allowing the 3 case of the Respondent no. 16 in fact, ought to have directed for removal of the least meritorious candidates amongst the petitioner and respondents no.17 and 18. He has also submitted that the complaint of the respondent no.16 was also wholly belated and Tribunal, in fact, ought to have not even entertained the same.
Legal Reasoning
4. Learned counsel appearing for respondent no.16 has however explained that among the four vacancies, which were sought to be filled up, the vacancy of unreserved open category was to be filled up from the best available male or female candidate but the respondent no.16 having 71.22 % was sidelined on a wholly illegal ground that he has not submitted his original marks sheet and testimonials on the date of counseling by holding that they (original certificate of Respondent no. 16) were deposited in some other Panchayat for his consideration of appointment on the post of Panchayat teacher in that Panchayat. He has in this regard also explained that there is no denial to the aspect that the attested copy of the mark sheet and testimonials enclosed with the application of respondent no.16 were available and, therefore, once the counseling of the respondent no.16 was already held, he being the best candidate in the unreserved category could not have been sidelined only on a flimsy ground of non-availability of his original certificates. 5. Proceeding further he has also submitted that there would be no question of delay in moving the Tribunal inasmuch as 4 the appointment was made on 30.12.2010 and the first application was filed by the petitioner before the Collector of the District within a month of appointment of the petitioner which had been forwarded by the Collector to the Tribunal leading to institution of Case no.111 of 2011 and subsequently the petitioner being unaware of institution of his case had also separately moved the Tribunal by filing a separate petition because he was not aware that his application, filed before the Collector, has already been sent to the Tribunal. As with regard to the inter se merit between the petitioner and respondents no.16, 17 and 18, learned counsel for the Respondent no. 16 has explained that her issue was not with-regard to the other yearmarked reserved category of post of Teacher inasmuch the dispute was with-regard to the unreserved post and, therefore, the respondent no.16 had concentrated on the unreserved vacancy which was given to the petitioner. 6. Learned counsel for the State has also adopted the submission of the learned counsel for the respondent no.16 and has submitted that there is no error in the order of the Tribunal which would require interference of this Court save and except that the Tribunal had to direct for filling up the post sought to be vacated by the petitioner by looking into the inter se merit which could have been emerged on account of removal of the petitioner from the post of unreserved post, vis a vis, inter se merit of the respondents no.17 5 and 18 because admittedly the petitioner and respondent no.16 as Respondent no. 17 belong to the general category and, therefore, the post of general category female will have to go to the more meritorious female candidates of unreserved category including petitioner and Respondent no. 17. 7. Despite service of notice on respondent no. 17 and in fact also filing of vakalatnama and counter affidavit through Sri S.K Thakur an advocate of this Court, no one has appeared on behalf of the respondent no. 17. From the counter affidavit filed by respondent no. 17, it would, however, transpire that she claims to have been appointed on the post of Panchayat Teacher which was reserved for the unreserved category (Female). She has also sought to explain that though she was Orthopaedically handicapped and ought to have been appointed against the post of physically handicapped, she was selected and appointed on the intervention of the Tribunal through letter no. 556 dated 15.06.2010 in relation to Case No. 670 of 2009. An effort has been made by respondent no. 17 to wriggle out of the whole dispute by taking a plea that the Tribunal’s order would make it clear that it was the petitioner who had occupied the post of teacher of the unreserved category though respondent no. 16 had a better claim in view of his having higher marks as against petitioner on that post. It has also been explained that respondent no. 17 had moved the appropriate authority for change of her appointment as a disable 6 candidate in place of post of General category for women but that has not been allowed. There is also a pleading in the counter affidavit of respondent no. 17 that Respondent no. 18 despite having secured lesser marks than her (Respondent no. 17) was appointed because she was related to the officials of the Panchayat. 8. On the other hand no one has also appeared for respondent no. 18 though a vakalatnama and a counter affidavit had been filed by Mr. Anand Kumar and advocate of this Court on behalf of Respondent no. 18. From the stand taken in the counter affidavit by Respondent no. 18 it would transpire that she has claimed to have been appointed as Panchayat Teacher against the post reserved for female handicapped category reserved for backward caste(BC). 9. First of all it must be clarified here that for Goragama Gram Panchayat in Maitihani Block, Begusarai even as per the petitioner who has annexed the roster for four posts of Panchayat Teacher which were to be filled up, one post was reserved for the category of female (Orthopaedically handicapped). The second post was for unreserved category female. The third post was either for male or female of the Scheduled Caste (SC) category and the fourth post was again for unreserved category for either male or female. From the records, it is also clear that while the petitioner was appointed against the Unreserved post either for male or female, respondent no. 17 was appointed against the post of unreserved 7 category for female and respondent no. 18 was appointed against the post for the reserved category, (Orthopaedically handicapped) while one Mr. Sanjeet Gadak was appointed against the post of Scheduled Caste(SC). The controversy being not thereof for the post of Scheduled Caste, the remaining three posts, one for the Unreserved category open for either male or female, and the other post of unreserved female category and the third post for Orthopaedically handicapped of reserved category which have only been the bone of contention between the respondent no. 16, the complainant, the petitioner and respondent no. 17 both belonging to general category. It must be clarified here and now that appointment of respondent no. 18, who admittedly belongs to the backward caste and has been appointed against the post earmarked for the reserved category Female (Orthopaedically Handicapped) in no way can be removed at the instance of the petitioner who also claims to be Orthopaedically handicapped. In this regard, it has to be noted that it is the own admission of the respondent no. 17 in the counter affidavit that though she was trying to get her appointment against the post of physically handicapped category but till the date of her filing of the counter affidavit no such order had been passed by Panchayat changing her appointment against the post of physically handicapped category. In fact before this Court nothing has been shown against respondent no. 18 who belongs to the backward category and the post 8 also on which she was appointed was meant for reserved category Female (Orthopaedically Handicapped). In this regard the disability certificate of the respondent no. 18 being on record will go to show that she was backed by the certificate of disability issued by the Civil Surgeon on the basis of the findings of the medical board dated 25.09.2006(Annexure-C) describing her lower limb to have been affected by polio and the percentage of her disability to be 40 per
Decision
cent. In view of the above, the dispute now remains confined between the petitioner, respondent no. 16 and respondent no. 17 only for two posts one for unreserved category and the other for unreserved female category. 10. In the considered opinion of this Court, so far the finding of the Tribunal relating to appointment of respondent no.16 on the unreserved post is concerned, that is absolutely flawless. The respondent no.16 has admittedly 71.22.% marks and, therefore, he had to be appointed in preference to the petitioner. The only reason for denial of appointment of Respondent no. 16 that he did not produce his original mark sheet and certificate on the date of counseling was itself wholly unjustified and arbitrary. A candidate who has been selected on the basis of attested copies of mark sheets, if he or she seeks time to produce their respective original before the appointing authorities /Selection authorities, he or she has to be given some reasonable time say at least a week so that he / she could 9 produce the original certificate and marksheet. . 11. As the selection on the post of Panchayat teacher by way of counseling had been fixed on the same day in different Panchayat in pursuance of which if a person has deposited the original certificates in one Panchayat and yet he is not selected and appointed in that Panchayat, he cannot be non-suited on the ground of non-production of original certificate in the other Panchayat where his name has been included in the merit list and he gets selected in course of counselling on the basis of his attested copy of his certificate and marks sheet. To that extent the finding of the Tribunal is fully justified and would require no interference of this Court. 12. This Court, however, must take into account the reliance placed by learned counsel for respondent no. 10 as also the petitioner on certain circulars of the Education Department. In the counter affidavit, respondent no. 10 has enclosed a press communiqué issued by the Principal Secretary of the Education Department dated 17.04.2010 which says that the appeal is to be filed before the Tribunal ordinarily within 30 days and since the appointment of the petitioner was made on 30.12.2010, such appeal by the respondent no. 16 had to be filed on or before 29.01.2011 but the respondent no. 16 did not do so and as such his appeal/complaint before the Tribunal was itself time barred. 10 13. This Court, would find it difficult to accept such submission for more than one reason. Firstly it has to be noted that initially when the redressal forum was provided in the Bihar Panchayat Prarambhik Shikshak (Niyogan and Seva Sart) Niyamawali-2006 the power to decide the appeal was vested in the Block Development Officer. No period of limitation was provided therein and a period of 30 days was only prescribed for deciding the appeal by the Block Development Officer as would be evidenced from the reading of Rule-18 in 2006 Rules :- 18& f’kdk;r bl fu;ekoyh ds v/khu fu;kstu LFkkukUrj.k vFkok a fdlh Hkh izdkj dh f’kdk;r dk fu.kZ; ysus dh lsok lEcU/kh ekeyksa es ’kfDr iz[kaM f’k{kd ds ekeys esa mi fodkl vk;qDr dks gksxh ,oa iapk;r f’k{kd ds ekeys esa iz[k.M fodkl inkf/kdkjh dh gksxhA lEcU/kh inkf/kdkjh vf/kdre 30 fnuksa ds vUnj f’kdk;rksa dk fu.kZ; ns nsaxsA^^ 14. The State Government by resolution no. 3153 dated 25.08.2008 had constituted the District Teachers Employment Appellate Tribunal and in the same also though it was an executive order, no period of limitation was prescribed. The notification which was issued on 23.10.2008 laying down service condition of the member of the Tribunal as also the manner of the functioning of the Tribunal, its rights and responsibility vide notification no. 3716 dated 23.10.2008 had made a provision that:- vihy drkZ }kjk fu;kstu ls lEcfU/kr lHkh izdkj dh vihy 30 fnuksa ds vUnj izkf/kdkj dks nsuk vfuok;Z gksxk A 30 fnuksa ds okn izkIr vihy ij leqfpr dkj.k gksus ij gh izkf/kdkj }kjk fopkj fd;k tk ldsxk A 11 15. As would be evident, that there was no beginning point of computing the charge of 30 days prescribing the aforementioned limitation in filing of the appeal. It has to be kept in mind that there is no original authority whose orders are only to be questioned, inasmuch as, in the matter relating to terms and conditions of service of a Panchayat Teacher can be made subject matter of an appeal before the Tribunal. The expression used in the Government notification dated 23.08.2008 does say that such appeal has to be filed within 30 days of the issuance of the appointment letter of the person concerned. By now it is well settled that any interpretation of statute prescribing limitation cannot be made on the basis of implication or by way of inference. Reference in this connection may be usefully made to the judgment of the Apex Court in the case of Lala Bal Mukund vs Lajwanti and Ors reported in AIR 1975 SC 1089:- the citations and We do not wish to encumber this judgment with a detailed discussion of all the reasoning advanced therein in support of one or the other view. It will be sufficient to say that upon the language of Section 12 (2) both the constructions are possible, but the one adopted by the majority of the courts, appears to be more consistent with justice and good sense. The Limitation Act deprives or restricts the right of an aggrieved person to have recourse to legal remedy, and where its language is ambiguous, that construction should be preferred which preserves such remedy to the one which bars or defeats it. A Court ought to avoid an interpretation upon a statute of Limitation by implication or inference as may have a penalising effect unless it is driven to do so by the irresistible force of the language employed by the legislature. 12 16. Be that as it may such provisions was an executive instruction issued vide memo no. 3716 dated 23.10.2008 as contained in Annexure-C to the counter affidavit of respondent no. 10 was never incorporated in the Rules. As a matter of fact the amendment in the Rules was brought only on 03.07.2009 vide notification no. 1056 which is Annexure-A to the counter affidavit of respondent no. 7 which reads as follows:- 3- fcgkj iapk;r izkjafHkd f’k{kd …fu;kstu ,oa lsok ’k(cid:217)kZ‰ fu;ekoyh] 2006 ds fu;e 18 dk izfrLFkkiu 1& m(cid:228) fu;ekoyh dk fu;e 18 fuEukafdr }kjk izfrLFkkfir fd;k tk;sxk %& 18& vihy %& bl fu;eokyh ds v/khu fu;kstu ,oa ’ksok’k(cid:217)kksZ ls lEcfU/kr vihy lquus dh ’kf(cid:228) ftyk Lrj ij ljdkj }kjk xfBr ,d ;k ,d ls vf/kd lnL;ks a dh izkf/kdkj dks gksxhA ekuo lalk/ku fodkl foHkksx ds }kjk izkf/kdkj dh LFkkiuk ,oa lsok ’krksZ dk fu/kkZj.k fd;k tk;sxkA vihyh; izkf/kdkj dk xBu lsok fuo‘r fcgkj U;kf;d lsok] Hkkjrh; iz’kklfud lsok] fcgkj i’kklfud lsok] fcgkj f’k{kk lsok ds inkf/kdkfj;ksa ,oa vko’;drkuqlkj f’k{kkfonksa ls fd;k tk;sxkA^^ 17. Thus neither in the 2006 Rules nor in the 2009 amended Rules, any period of limitation has been prescribed for filing of the complaint which has loosely been also described as an appeal. In fact there being no order of the original authority, the nomenclature of appeal is more or less to be understood in the context of Rule-18 which only says about filing of complaint before the Tribunal. 18. It is in this background that the press communique of the Principal Secretary of the Human Resources Development Department dated 17.04.2010 which is more or less by way 13 notice/information has to be understood inasmuch as the same reads as follows:- ekuo lalk/ku fodkl foHkkx lwpuk f”k{kd fu;kstu ls lacaf/kr f’kdk;r@vihy ds fu”iknu gsrq vko’;d lwpuk f”k{kd fu;kstu ls lacaf/kr f”kdk;rksa@vihyksa rFkk fu;ksftr f”k{kdksa ds lsok ”krksZ ls lacaf/kr vihyksa@f”kdk;rksa ds fu”iknu gsrq ljdkj }kjk jkT; ds izR;sd ftyk esa ^ftyk f’k{kd fu;kstu vihyh; izkf/kdkj^ dk xBu fd;k x;k gSA bl izsl foKfIr ds ek/;e ls vke yksxksa ,oa lHkh lacaf/kr dks lwfpr fd;k tkrk gS fd f”k{kd fu;kstu ¼ f”k{kk fe=ksa ds yafcr vihy lfgr½ ds tks Hkh f”kdk;r@vihy gS vFkok fu;ksftr f”k{kdksa ds lsok ”krksZ ls lacaf/kr tks Hkh vihy@f”kdk;r gS mldh lquokbZ ,oa fu”iknu ftyk ds ^^ftyk f”k{kd fu;kstu vihyh; izkf/kdkj^^ ds }kjk gh fd;k tk;sxkA ;g Li”V fd;k tkrk fd f”k{kd fu;kstu ,oa lsok ”krksZ ls lacaf/kr vihy@f”kdk;r ftyk ds izkf/kdkj ds le{k gh nk;j djsaA fdlh ekeys dh vihy lkekU;r% 30 fnuksa ds vUnj nkf[ky fd;k tkuk gSA ;g Hkh lwfpr djuk gS fd f”k{kd fu;kstu ls lacaf/kr vihy@f”dk;rksa ds fu”iknu dk ,d ek= vf/kdkj ^^ftyk f”{kd fu;kstu vihyh; izkf/kdkj^^ dks gS] fdlh vU; dks ughaA vr% lacf/kr O;fDr f”k{kd fu;kstu ls lacaf/kr f”kdk;rksa ds fy, vius ftys ds ftyk f”k{kd fu;kstu vihyh; izkf/kdkj ds le{k gh vkosnu djsa] vU;= ughaA ih-vkj-&467 ¼ f”k{kk½ 10&11 …vatuh dqekj flag‰ (underlining for emphasis) iz/kku lfpo 19. From the aforesaid press communiqué, it would be clear that the appeal and complaint in fact are the same thing and again even by this executive order all that has been said is that ordinarily the appeal in any matter has to filed within 30 days. There is again no beginning point of limitation for computing the period of 30 days. Thus on the basis of the pleadings on record, the submission of learned counsel for the respondents that there is a fixed prescribed period of appeal of 30 days which would commence from the date of appointment on the post of concerned Panchayat Teacher cannot be accepted. 14 20. Assuming it to be however correct for sake of arguments so far the present case is concerned, respondent no. 16 has enclosed unimpeachable documents which would go to show that he after acquiring knowledge of the appointment of the petitioner dated 30.12.2010 had filed his complaint to all the authorities including the Tribunal on 27.01.2011. The receipt of such complaint before the Tribunal go directly from the petitioner to the Begusarai district is an admitted fact, inasmuch as, the Tribunal itself in the impugned order has recorded that the two complaints of the Respondent no. 16, one received from the office of the Collector of Begusarai district and the other directly filed by the Respondent no. 16 had led to institution of two cases Appeal Case No. 111 of 2011 and Appeal Case No. 128 of 2011. Thus when there is no denial to the averments made by the respondent no. 16 in his counter affidavit in paragraph no. 5 reading as follows:- "That the petitioner has complained to all the authorities about the non appointment of this deponent and wrong appointment of the petitioner on 27.01.2011 by Speed Posts. This fact has also been stated in the application before the Appellate Authority i.e. Annexure- 3 of the writ petition.." this Court will have to, in presence of the copy of the receipt of the Speed Post enclosed as R-16/B will have to accept that there was no delay on the part of respondent no. 16 in lodging his complaint against the appointment of the petitioner. In this regard, this Court 15 has also taken into account the omnibus vague denial made by the petitioner in paragraph no. 17 to her rejoinder to the counter affidavit of respondent no. 16 by stating that the burden for proving the fact stated by respondent no. 16 in paragraph no. 5 of the counter affidavit lies on him. In the opinion of this Court such burden has been fully discharged by respondent no. 16 in no uncertain terms, inasmuch as, he has enclosed the postal receipt of the Speed Post sent by him on 27.01.2011 i.e., well within 30 days of the appointment of the petitioner on the post of Panchayat Teacher made on 30.12.2010. 21. Thus for all the reasons, this Court would find that there was no delay in filing of the complaint by respondent no. 16 assailing the appointment of the petitioner. 22. Coming to the other post, the findings recorded by the Tribunal, in fact, will go to show that there was some sort of post selection bungling inasmuch as the Tribunal has in the impugned order has gone to hold that the original Employment register of Panchayat was sought to be interpolated by the office bearers of Panchayat and a dubious strategy was evolved for denying appointment to respondent no.16. The Tribunal in this regard in the impugned order has held as follows:- ^^iz[kaM lkaf[;dh inkf/kdkjh }kjk tkap ds dze esa iapk;r a dk c;ku fy;k x;k rFkk fu;kstu ls lacaf/kr inkf/kdkfj;ks fu;kstu esa mudh Hkwfedk dh Hkh tksp dh x;hA vihykFkhZ dk c;ku fy;k x;k] fu;kstu ls lacaf/kr dkxtkr dk;Zokgh iath] ,oa fu;kstu iath dh tkap dh x;hA tkap izfrosnu esa vafdr gS fd dbZ ckj funs’k nsus ds ckn Hkh iapk;r lfpo dkxtkr ds lkFk tkap inkf/kdkjh ds le{k mifLFkfr ugha 16 gq,A izfronsu ds var esa tkap inkf/kdkjh bl fu"d"kZ ij igaqaps gS fd ewy iath …fu;kstu iath‰ esa NsM+&NkM+ dh x;h rFkk tku cq>dj foeys’k dqekj ds LFkku ij nwljs dks ukSdjh fnukys gsrq "kM;a= fd;k x;kA tkapksijkar tkap inkf/kdkjh dh ;g vuq’kalk gS fd lokZf/kd es/kk vad jgus ds dkj.k xkSjxkek iapk;r f’k{kd fu;kstu o"kZ 2008 esa fu;ksftr f’kf{kdk uhyw dqekjh firk jkele> jk; ds LFkku ij vukjf{kr …iq:"k@efgyk‰ oxZ esa foeys’k dqekj firk ckfYedh izlkn flag dks fu;qDr fd;k tk;A** Such finding of the Tribunal having been based on perusal of the original record and documents cannot be re-appraised by this Court in exercise of power conferred under Articles 226 of the Constitution of India. 23. The Tribunal however has committed an error inasmuch as it has failed to consider the aspect which would emerge between the petitioner vis a vis respondent no.17. It is an admitted position that four appointments were made out of which one post was yearmarked for the general open category, either male or female, the other post was exclusively reserved for general category for female, the third post was for a candidate of Other Backward Caste (OBC) and the fourth post was for Scheduled Castes, either male or female. It was also on record that the appointment of respondent no.17 was made against the post of the general open unreserved category of female but then she has lesser marks than the petitioner. Thus, if the petitioner goes out of the contest against the post of unreserved open category, which she must on account of her having lesser marks than the respondent no.16, she would still be entitled for 17 being considered on the post of the general open unreserved category for female on which respondent no.17 was appointed. In view of the fact that the appointment of respondent no.18 was not on the post of general category, either open or for female category this court is not required to record any finding with regard to her (Respondent no. 18) but at the same time as the Tribunal’s impugned order leads to termination of service of only the petitioner without considering its effect on the case of respondent no.17, this Court in all fairness would set aside operative portion of the impugned order and would direct for reconsideration by appointing Unit, that is the Panchayat which would now examine the cases of all the eligible persons whose name have been included in the merit list for filling up the two posts of Panchayat Teacher, namely one for general category and the other for general female category. 24. This Court would accordingly direct the Panchayat Secretary to re-examine the matter relating to filling up the unreserved post for female on which respondent no. 17 was appointed and is continuing. The Panchayat in this regard will not only examine the case of the petitioner vis a vis respondent no. 17 but all of the other candidates of the female category of the unreserved category and would appoint the best candidate after conducting fresh counselling by issuing notice under registered cover to all such candidates. In the event the petitioner emerges to be the best 18 candidate, she would be appointed on that post of unreserved female category by removing the respondent no. 17 but if a better candidate on merit than both the petitioner and respondent no. 17 is found, that person would be appointed after terminating the service of respondent no. 17. Similarly, the appointment of respondent no. 16 on the post of Panchayat Teacher for the Unreserved category of either male or female shall be made only after ensuring that respondent no. 16 is the best candidate in that category. In other words if there is any better candidate on merit to the respondent no. 16 whose name finds place in the merit list opportunity will be firstly given to that person by holding fresh counselling for which also notices must be given to all eligible persons by Registered Post with a clear 15 days time gap for such counselling. 25. Such exercise by the Mukhia and the Panchayat Secretary of the Panchayat must be completed within a period of two months from the date of receipt of this order. Till it is done so neither the petitioner nor respondent no. 17 shall be allowed to function or claim payment of salary. 26. In the result this writ application is dismissed and the impugned order of the Tribunal is so far it relates to the case of the petitioner vis-a-vis Respondent no. 16 is upheld and only the following part of the operative portion of the impugned order, reading interalia:- 19 ^^iapk;r lfefr ds funs’k fn;k tkrk gS fd uhyw dqekjh dk fu;kstu jn~n gksus ls mRiUu fjfDr ij mlh dksfV ds lokZf/kd vad/kkjh vH;FkhZ vihykFkhZ foeys’k dqekj firk ckYehdh izlkn flag ds fu;kstu ds lEcU/k es a nks lIrkg ds vUnj vko’;d dkjZokbZ djsaA** would now stand modified in the manner indicated above. Consequently the interim order of this Court dated 26.3.2012 in this case shall also stand vacated. 27. With the afore mentioned modification in the order of the Tribunal, this application is dismissed. A.Ahmad/Ranjan (Mihir Kumar Jha, J)