Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.8784 of 2012 ====================================================== Poonam Kumari W/O Sri Amritesh Kumar R/O Village- Chakpahar, P.S.- Tajpur, District- Samastipur Versus 1. The State Of Bihar Through The Principal Secretary Human Resources Development Department, Bihar, Patna 2. The Secretary Human Resources Development Department, Bihar, .... .... Petitioner/s Patna 3. The Commissioner, Darbhanga Pramandal, Dabhanga 4. The District Magistrate, Samastipur 5. The District Development Commissioner, Samastipur 6. The District Education Officer, Samastipur 7. The Sub-Divisional Magistrate, Samastipur 8. The Block Development Officer, Morwa, Samastipur 9. The Block Education Extension Officer, Morwa, Samastipur 10. The Lal Bahadur Singh, Head Master Rajkiya Middle School And (Selection Committee), Chakpahar, Morwa, Member Secretary Samastipur 11. The Prakhand Pramukh, Morwa, Samastipur 12. The Rita Devi, Mukhia, Chakpahar And Co. Chairman (Selection Committee) Chakpahar Morwa, Samastipur 13. Kanti Kumari W/O Ramesh Kumar Roy R/O Village- Chakpahar, P.S.- Tajpur, District- Samastipur
Legal Reasoning
.... .... Respondents ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 4 30-04-2013 Heard learned counsel for the parties. The prayer of the petitioner in this writ application reads as follows:- “1. That, by way of this writ petition the petitioner craves indulgence of this Hon’ble Court for the issuance of a writ in the nature of mandamus or an appropriate writ order or orders, direction or directions commanding the Respondents authorities to appoint the petitioner on the post of “PRERAK” in the Public Education Centre within Chakpahar Panchayat under the Morwa Block, Patna High Court CWJC No.8784 of 2012 (4) dt.30-04-2013 2/5 Samastipur, after cancelling the appointment of Respondent 13, who has been illegal appointed on the post after the appointment of the petitioner, and other relief and reliefs for which petitioner is entitle under the law.” Learned counsel for the petitioner has submitted that after the petitioner was already selected and appointed on the post of Prerak under the decision of the competent authority on 17.10.2011, the appointment of the respondent no.13 on the same post was not only illegal but also wholly without jurisdiction. In this regard, he has also submitted that as a matter of fact, when the petitioner tried to know as to the mode of appointment of the respondent no.13, an information was given under the Right to Information Act that a written examination was held whereafter the appointment of the respondent no.13 had been made. According to the learned counsel for the petitioner, the whole procedure smacks of malafide on the part of the selecting authority. In this regard, he has also gone to submit that Panchayat Samiti has no machinery by which it could have actually conducted any written test. He has, accordingly, submitted that the matter should be referred for enquiry by the District Education Officer, Samastipur to whom also earlier an order was given by this Court on 9.7.2012 to hold an enquiry into the allegations made by the petitioner. Patna High Court CWJC No.8784 of 2012 (4) dt.30-04-2013 3/5 In this case a counter affidavit has been filed not only on behalf of the Block Education Officer, Morwa (Respondent no.8) but also by the Member Secretary of the Panchayat Lok Shiksha Samiti and in both of them, it has been mentioned that after the post in question was advertised, applications were received and written test was held in which the petitioner had also appeared whereafter the best person on the basis of the performance in the written test was appointed. In this regard, full details has been given with regard to the marks secured by the candidates wherein the respondent no.13 Kanti Kumari has been shown to have obtained obtained 32 marks as against the petitioner who had obtained only 12 marks. Thus the appointment of the respondent no.13 has been justified on the basis of selection based on merit. Learned counsel for the petitioner does controvert the facts regarding holding of the written test as stated in the counter affidavit and appearance of the petitioner in such written test. Unfortunately, this information however was withheld by the petitioner while filing the writ application who had created an impression that the petitioner had already been appointed and, thereafter, she was not aware as to how such appointment of the respondent no.13 came to be made and that is how the story of Patna High Court CWJC No.8784 of 2012 (4) dt.30-04-2013 4/5 getting information under right to information act was also introduced. The facts, however, is otherwise, inasmuch as, it is now an admitted fact that the selection test was conducted wherein eleven candidates including the petitioner had appeared in the written test and the petitioner was not selected and appointed because she had got only twelve marks whereas the appointment of the respondent no.13 was made because she had secured second highest 32 marks whereas as Devendra Rai had obtained the highest 38 and that is how both of them were appointed in their respective category. In view of the above, it becomes clear that the writ application is fit to be dismissed only on the ground of suppression of material fact because the petitioner had a duty to inform this Court that the petitioner had appeared in the written test and had not been selected. Such information being part of the foundational fact relating to the relief prayed in this writ application, such suppression of material fact would alone be a good ground for dismissing this writ application. That apart, this Court would find that the story of the petitioner being appointed is based on a certificate of a Member Secretary. The Member Secretary alone cannot take a decision for appointment in terms of the Government Guidelines contained in Patna High Court CWJC No.8784 of 2012 (4) dt.30-04-2013 5/5 Annexure-2. The power of appointment in fact has been vested in the Committee of which a Member Secretary is only part of it. In that view of the matter, any certificate issued by the Member Secretary cannot be treated to be a valid appointment letter of the petitioner. Moreover, the said Member Secretary himself as respondent no. 10 has sworn an affidavit that there was a procedure of selection undergone by holding a written test in which the petitioner had also appeared and was not selected because of her lower marks. In that view of the matter, this Court will give no credibility to the certificate produced by the petitioner. In any event, a better person on merit has been appointed and this Court does not find any reason to interfere with the same. That being so, this application is wholly misconceived and the same is, accordingly, dismissed. (Mihir Kumar Jha, J) Rishi/-