Letters Patent Appeal No.600 OF 2007 ***** Against the order dated 23.2.2007, passed by a learned Single Judge of this Court, in CWJC No.10165 of 2001. ***** 1. The State of Bihar, through Commissioner cum Secretary, Human Resources, Development Department (Secondary) Government of Bihar, New Secretariat, Patna. 2. Director, Secondary Education, Human Resources Development Department, Government of Bihar, New Secretariat, Patna. 3. Regional Deputy Director of Education, Darbhanga Division, Darbhanga. 4. District Education Officer, Madhubani. 5. Head Master, High School, Sonai, Madhubani. .... Respondents-Appellants. Versus Prakash Narain Thakur, son of Badri Narain Thakur, Resident of village-Mampaur, Police Station- Benipatti, District- Madhubani, Presently working as a Clerk at Sonai, High School, Madhubani. ... Petitioner- Respondent. ***** For the Appellants: Mr. Sunil Kumar Mandal, S.C.15 with Mr. Bipin Kumar, A.C. to S.C. 15. For the Respondent: Mr. Suresh Prasad Singh, Advocate. ******* P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE JYOTI SARAN ***** S K Katriar & J. Saran, JJ. This appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna has been preferred by the respondents of CWJC No.10165 of 2001 (Prakash Narain Thakur Vs. The State of Bihar and others), whereby the writ petition was 2 allowed, the order impugned therein was set aside and the petitioner’s selection as Clerk in the Education Department of the Government of Bihar has been restored. We shall draw the basic facts essential for the disposal of the appeal from the appeal proceedings except by specific reference from elsewhere. 2. A brief statement of facts essential for the disposal of the appeal may be indicated. The respondent authorities (appellants herein) had issued an advertisement which had appeared in the local dailies on 1.2.1988 (Annexure-10 to the writ petition). The petitioner (respondent herein) submitted his application and the order of appointment was issued to him on 18.8.1988 (Annexure-12 to the writ petition). He joined on 19.8.1988. Appellant no.4 herein issued order dated 4.6.1999 (Annexure-4 to this appeal), directing that he shall not be permitted to work any further. The respondent herein challenged the same by preferring CWJC No.7058 of 1999 (Prakash Narayan Thakur Vrs. State of Bihar and others), which was disposed of by order dated 11.1.2000 (Annexure-2 to the writ petition), whereby he was directed to submit an appropriate representation before appellant no.2, who shall dispose of the same within the time granted by the order. The 3 respondent herein submitted his representation dated 11.2.2000 (Annexure-9) which was rejected by order dated 16.3.2001 (Annexure-1 to the writ petition), and impugned in the writ petition. The respondent herein challenged the same by preferring the aforesaid writ petition bearing CWJC No.10165 of 2001, which has been allowed by the order dated 23.2.2007 on two grounds, namely, the District Education Officer, Madhubani, was the appointing authority and the order of appointment has been passed by the Regional Deputy Director of Education, Darbhanga Division, Darbhanga, and also on the ground that this issue is covered by the judgment of a learned Single Judge of this Court passed in C.W.J.C. No.7042 of 2000 (Bijendra Pd. Gupta and another Vs. State of Bihar and others) and the analogous writ petitions, which was allowed by order dated 12.3.2004. Learned counsel for the respondent herein asserts that the same has been upheld by a Division Bench of this Court by order dated 13.7.2005 , passed in LPA No.469 of 2005 (State of Bihar and others Vs. Bijendra Pd. Gupta and another). 3. While assailing the validity of the impugned order and that of the learned Single Judge, the learned Government Pleader submits that the prescribed procedure was not followed and the 4 respondent’s name does not figure in the select list. He also submits that appellant no.4 is the appointing authority, and respondent no.3 has passed the order of appointment. He relies on the order of a Division Bench of this Court in the case of Chandrashekhar Vs. The State of Bihar and others, reported in 2007 (4) BBCJ 134. 4. Learned counsel for the respondent supports the order of the learned Single Judge and submits that the order of appellant no.2 dismissing his representation is unreasonable and arbitrary. 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. Learned counsel for the appellants has laid considerable emphasis on the issue that the appointing authority is respondent no.4, and the order of appointment was passed by respondent no.3, who has no authority at all. We are not impressed by the submission, inasmuch as on the own showing of the authorities, the order of appointment was passed by a superior authority. The same cannot, therefore, by itself a ground to set aside the order of appointment unless mala-fides are attributed. No such plea of mala-fides was raised before the learned Single Judge, nor before this Court. The position may perhaps have been different had the case presented reverse situation, 5 namely, if the order of appointment was issued by an authority junior to the appointing authority. We would, therefore, prefer to reject this contention. There is one more aspect. In his submission, this issue is covered by the order of the learned Single Judge in C.W.J.C. No. 7042 of 2000. The judgment of Bijendra Pd. Gupta (Supra) stands on fundamentally different footing, namely, that was in pursuance of completely a different selection process and, therefore, it is not easy to find parity between the two cases. 6. The appellants’ next contention merits serious consideration. The order dated 16.3.2001 itself states that the respondent’s name did not figure in the merit-list, inter-alia, for the reason that he did not appear at the typing test. The respondent has not advanced an effective answer to such an issue of fact. It thus appears to me that the respondent had not faired well at the selection test, he did not appear in the typing test, as a result of which he could not find his way to the merit list, notwithstanding which he was appointed by respondent no.3. This was detected by appellant no.4 at a later date and as a result of which the entire proceeding was reopened, and on examination of the factual aspects respondent no.2 came to the conclusion that the respondent’s name 6 did not figure in the merit list. In that view of the matter, it is difficult to uphold the order of the learned Single Judge. 7. In the result, this appeal is allowed, and the writ petition is dismissed. (S K Katriar, J.) (Jyoti Saran, J.) Patna High Court, Patna. Dated the 25th day of August, 2009. S.K.Pathak/ (N.A.F.R.)