IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12627 of 2009 Prem Lata Kumari Versus The State Of Bihar & Ors 3/ 09/08/2011 Heard learned counsel for the petitioner, the State and for respondent No.9. The petitioner is aggrieved by the order dated 4.4.2009 appointing respondent No.9 as an Angan Bari Sevika for the Sohjana Centre in Dumrichatti Gram Panchayat. Learned counsel for the petitioner submits that there was only one vacancy. The person at serial-1 of the panel prepared on 24.5.2007 was appointed. After over one year the appointment was terminated on 17.6.2008 for reasons attributable to the candidate. The panel had a life of one year only as evident from a letter dated 7.8.2008 issued by the office of the Collector, Gaya. Even otherwise, the moment a candidate was appointed on the singular vacancy, the vacancy stood exhausted. Only fresh appointment could have been made as also directed by the District Magistrate. The petitioner was at serial-3 of the erstwhile panel and respondent No.9 at serial-6. If an appointment had to be made from the same panel, it had to be in merit order of the panel. The Secretary to the Commissioner had no jurisdiction to give directions for appointment of 2 respondent No.9. Learned counsel for respondent No.9 submits from Annexure-F to her counter affidavit that an opportunity was given to the petitioner as a person higher in the panel to be considered for appointment. She furnished in writing on 2.7.2008 by Annexure-F that she was not interested. Respondent no. 9 was thereafter appointed. Learned counsel for the petitioner in reply submitted that the writ application has been taken up out of turn at serial-0 on a motion made on behalf of respondent No.9 without obtaining consent from him for out of turn listing. He had therefore not been able to seek instructions and file a reply to the counter affidavit of respondent No.9. On 6.10.2009 the Court had issued notice to respondent No.9 and stayed the operation of her appointment dated 4.4.4009. Since the interim order was ex parte, in fairness to respondent No.9, after her entering appearance and on a request to re-consider matters, the Court directed the matter to be listed at serial-0. It is a matter of common practice in this Court that cases are mentioned by submitting motion slips without obtaining consent of the other side. The discretion is left to the Court. There have been 3 instances where the Court has required a party to obtain the consent of the counsel for the other side on the motion slip depending on the nature of the case. The Patna High Court Rules are also silent on this aspect. Unless and until proper rules are framed in this regard, it shall remain in the discretion of the Court to accept motions for out of turn listing, especially in matters where ex parte orders have been passed against a party. Additionally, the Court finds that the counter affidavit of respondent No.9 was served on the counsel for the petitioner as far back as 2.11.2010,nearly 9 months ago. That is considered more than sufficient reasonable time for filing a rejoinder especially when the allegations appear to be hitting at the root of the writ petition. The proposition of law on behalf of the petitioner with regard to the exhaustion of the singular vacancy after appointment mandating a fresh selection if the post is vacated for any reason and that in any event the appointed candidate was removed after the life of the panel, beyond a period of one year, is unexceptionable. Had matters stood at that only, there could have been no difficulty in allowing the writ petition setting aside the appointment of respondent No.9. 4 Angan Bari Sevikas are agents of the Government. They are not government servants. The standards, rigours and scrutiny that would apply to appointment in government service shall not be of the same yardstick as applicable to them. Because the principal is the Government, the Court shall only look into the arbitrariness part of the action. Otherwise, it is the privilege of the principal to decide in which agent it has faith for dissemination of its welfare schemes. A litigant coming to the Court seeking discretionary relief under Article-226 is required to come with clean hands, place all necessary facts before the Court and leave the conclusions for the Court to be arrived at in accordance with law. But, if a litigant withholds any information and/or document having a vital and direct bearing on the controversy in issue, the Court can decline the relief on the ground that the person had not come to the Court with clean hands. Merely because the appointment of respondent No.9 may not have been accordingly to the merit panel shall not be sufficient for the petitioner to persuade the Court to interfere in the facts of the present case. The Writ Court in exercise of its discretionary jurisdiction retains the power to withhold relief even in appropriate cases depending on the facts and 5 circumstances of the case. One such example shall be when a litigant seeks relief on a proposition of law, but does not come to the Court with clean hands himself/herself. In the case of Oswal Fats and Oils Limited v. Additional Commissioner (Administration), Bareilly Division, 2010) 4 SCC 728 it has been held at paragraph-20 as follows:- “20. It is settled law that a person who approaches the court for grant of relief, equitable or otherwise, is under a solemn obligation to candidly disclose all the material/important facts which have bearing on the adjudication of the issues raised in the case. In other words, he owes a duty to the court to bring out all the facts and refrain from concealing/suppressing any material fact within his knowledge or which he could have known by exercising diligence expected of a person of ordinary prudence. If he is found guilty of concealment of material facts or making an attempt to pollute the pure stream of justice, the court not only has the right but a duty to deny relief to such person.” It remains uncontroverted that the petitioner had given in writing that she was not interested only whereafter respondent No.9 below her came to be appointed. The petitioner suppressed this fact in her writ petition when she subsequently changed her mind. The application is dismissed. KC ( Navin Sinha, J.)