IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10686 of 2009 1. Umesh Ravidas, s/o Ramkeshwar Das, Resident of Village Poari, P.S. Harnaut, District Nalanda 2. Ajay Kumar, S/o Chandeshwar Prasad, resident of Village Alinagar, Harnaut, District Nalanda. 3. Ram Pravesh Prasad, S/o Late Meva Sao, Resident of Village Poari, P.S. Harnaut, District Nalanda 4. Bipin Singh, S/o Late Ram Gulam Singh, resident of Village Langhaura, P.S. Harnaut, District Nalanda………………………………...Petitioners Versus 1. The State Of Bihar. 2. The Principal Secretary, Human Resources Development Department, Government of Bihar, Patna. 3. The Director, Primary Education, Human Resources Development Department, Government of Bihar, Patna. 4. The District Magistrate, Nalanda. 5. The District Teacher Appointment Appellate Authority, Nalanda. 6. The Member, the District Teacher Appointment Appellate Authority, Nalanda. 7. The District Superintendent of Education, Nalanda. 8. The Block Development Officer, Block-Harnaut, District Nalanda 9. The Block Education Extension Officer, Block- Harnaut, District Nalanda. 10. The Mukhiya, Gram Panchayat Raj- Poari, Block + P.S. Harnaut, District Nalanda. 11. The Panchayat Secretary, Gram Panchayat Raj Poari, Block + P.S. Harnaut, District Nalanda. 12. Kumari Rekha Rani, W/o Rajev Kumar , Village Poari, P.S. Harnaut, District Nalanda…………………………Respondents ----------- For the Petitioners: Sri Rajendra Prasad Singh, Sr. Advocate With Rajiv Kr. Singh, Onkar Kumar and Nawal Kishore Singh, Advocates For Respondent No.12: Mr. Ram Suresh Roy, Sr. Advocate with Mr.R.N.Mishra, Advocate For the State: Mr. S.P. Tripathy, S.C. No.7 4 15.11.2010 Heard learned senior counsel for the 2 petitioners as well as learned senior counsel for respondent no.12 and also learned counsel for the other respondents. Petitioners have challenged an order passed by the District Teacher Employment Appellate Authority, Nalanda dated 20.06.2009, as contained in Annexure-1, by which appointments of the petitioners as Shiksha Mitra have been cancelled and directions have been issued for recounselling for appointment on the resultant vacancies. It appears that petitioners’ appointments were cancelled earlier by the District Superintendent of Education on the directions of the Collector against which petitioners had moved this Court, vide CWJC No. 14390 of 2007. However, they withdrew the writ application in view of the constitution of the Appellate Authority, to enable them to move the appellate forum. Thereafter they filed appeal before the Appellate Authority which has been disposed of by the impugned order. After hearing the parties as also respondent no.12, the Appellate Authority 3 has come to the conclusion that in the appointment of the petitioners, some new procedure was adopted which was not prescribed in the guidelines. The Appellate Authority found that the guidelines provided for preparation of a panel on the basis of educational certificates only and counseling to be held on that basis for appointment. It found that, contrary to the same, respondents held the written test and called for counselling only those candidates who had passed the written test. Respondent no.12, admittedly, did not pass the written test and therefore, she was not called for counselling. Since petitioners had passed the written test, they were appointed against available vacancies. This has been held by the Appellate Authority as contrary to the prescribed procedure and, therefore, it has found appointment of the petitioners as illegal and invalid and has cancelled the same. Learned senior counsel for the petitioners submits that though guidelines did not speak of holding any written examination but there is no bar for holding 4 the written test to find out more suitable and qualified candidates. Therefore, in absence of any specific proof of favoritism, nepotism or interpolation committed by the respondents, selection and appointment of the petitioners on the basis of written test cannot be held illegal. In support of his submission, he has relied upon an order of this Court dated 22.01.2008 passed in CWJC No. 3867 of 2007 wherein this Court has found that for appointment on any public post, written test is a better method for selection. This Court has also found that since appointment of Shiksha Mitra was held for imparting teaching, it cannot be said that selecting the candidates on the basis of a written examination is illegal and bad. This Court has found that in absence of any specific allegation and proof of favoritism, nepotism and interpolation, no fault can be found with the same. He points out that the said order of this Court has been followed subsequently in an order passed in CWJC No. 12268 of 2007 also. He further submits that respondent no. 12 having participated in the written test she 5 is now stopped from challenging the test held as invalid and illegal. In this context, he points out that the written test was held on 24.02.2003 and petitioners were appointed on 30.05.2003 and thereafter they were given two extensions, but till then respondent no.12 did not file any objection. He points out that Annexure-C series of respondent no. 12 itself show that the first objection was filed by the respondent no.12 in 2006 and specially after the Rules came into force converting the contractual appointment of Shiksha Mitra into regular appointment. Learned senior counsel appearing for respondent no. 12 submits that, in fact, the written test was held only to manipulate the result so as to favour the candidates, who were declared as pass and were appointed against vacancies ignoring the claim of other candidates who ranked higher on the basis of their educational qualification. Having heard the submissions of learned counsel for the parties and after perusing the records, this Court finds that only basis for cancellation of appointment 6 of the petitioners is that the respondents have held a written test which was not provided in the guidelines. The portion of the impugned order which learned senior counsel for respondent no.12 points out, is only a presumptive expression. The Appellate Authority has just expressed an opinion that by adopting a method of holding a selection test, possibility of manipulation increases. There is nothing in the order of the Appellate Authority to show that from the records it was established that favoritism or nepotism was, in fact, practised by the respondents in appointment of petitioners. The allegation of favoritism and nepotism is a question of fact and the same has to be established beyond reasonable doubt to hold the action of the respondents as illegal. The said ground is neither made out nor has been considered by the Appellate Authority. Besides, this Court also finds that respondent no.12 had appeared in the written test which was held in the month of 2003 itself. There is nothing on record to show that immediately after the written test or after appointment of the petitioners, 7 respondent had raised any objection or had challenged fairness of selection process. Copies of the representation which have been annexed with the counter affidavit of respondent no.12 as Annexure-C series only show that she filed the first representation in 2006 only. Therefore, this Court also finds that there is delay and laches on the part of respondent no.12 in challenging the selection of the petitioners in time after she herself participated in the selection test. In the facts and circumstances, as noticed above, this Court finds that the order of the Appellate Authority is not sustainable in law and, therefore, the same is set aside. Appeal of the petitioners in the Appellate Authority is allowed and respondents are directed to reinstate the petitioners in service from the date they were terminated with all consequential benefits. This writ application is, accordingly, allowed. BT (J. N. Singh, J.)