IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 8006 of 2010 1. MANISHA KUMARI W/O SRI PRAVIND KUMAR MISHRA R/O VILL +P.O.BAHERA JAHIDPUR, P.S.NANPUR, DISTT-SITAMARHI Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY, DEPARTMENT OF PRIMARY EDUCATION , HUMAN RESOURCES DEVELOPMENT DEPARTMENT GOVERNMENT OF BIHAR, NEW SECRETARIAT, PATNA 2. THE DISTRICT MAGISTRATE SITAMARHI 3. THE SUB-DIVISIONAL OFFICER SITAMARHI 4. THE DISTRICT SUPERINTENDENT OF EDUCATION SITAMARHI 5. THE BLOCK DEVELOPMENT OFFICER NANPUR, DISTT-SITAMARHI 6. THE BLOCK EDUCATION EXTENSION OFFICER NANPUR, DISTT-SITAMARHI 7. THE GRAM PANCHAYAT RAJ null BAHERA JAHIDPUR , BLOCK+P.S.NANPUR, DISTT-SITAMARHI THROUGH ITS MUKHIYA 8. THE MUKHIYA , GRAM PANCHAYAT RAJ BAHERA JAHIDPUR, BLOCK+P.S.NANPUR, DISTT-SITAMARHI 9. THE PANCHAYAT SECHIV , GRAM PANCHAYAT RAJ BAHERA JAHIDPUR, BLOCK+P.S.NANPUR, DISTT-SITAMARHI 10. THE HEADMASTER , GOVERNMENT MIDDLE SCHOOL BAHERA JAHIDPUR, P.S.NANPUR, DISTT-SITAMARHI 11. THE MEMBER DISTRICT TEACHERS EMPLOYMENT APPELLATE TRIBUNAL SITAMARHI 12. SMT. NILAM KUMARI W/O RAJESH KUMAR R/O VILL +P.O. BAHERA JAHIDPUR, P.S.NANPUR, DISTT-SITAMARHI WITH CWJC No 11608 of 2010 1. NILAM KUMARI W/O RAJESH KUMAR AND D/O RAM BABU MISHARA R/O VILL.- BAHERA, JAHIDPUR, P.S. AND POST OFFICE- NANPUR, DISTT.- SITAMARHI Versus 1. THE STATE OF BIHAR 2. THE DISTRICT MAGISTRATE, SITAMARHI 3. THE DISTRICT SUPERINTENDENT OF EDUCATION OFFICER, SITAMARHI 4. THE DISTRICT TEACHER EMPLOYMENT APPELLANT TRIBUNAL, SITAMARHI THROUGH ITS MEMBER 5. THE BLOCK DEVELOPMENT OFFICER, NANPUR, DISTT.- SITAMARHI 6. THE PANCHAYAT SACHIV, GRAM PANCHAYAT RAJ BAHIRA SAHIDPUR, DISTT.- SITAMARHI 7. THE MUKHIA, GRAM PANCHAYAT RAJ, NANPUR 8. MANISHA KUMARI W/O SHRI PRAVINDRA KUMAR MISHRA OF DISTT.- SITAMARHI R/O VILL. AND POST- BAHERA JAHIDPUR, P.S. AND P.O.- NANPUR, DISTT.- SITAMARHI ----------- 4 04.08.2010 The two petitions have been heard together as they relate to the same selection process, one opposes the other. Petitioner, in CWJC No 8006 of 2010 (Manisha Kumari) was selected as Shiksha Mitra in the 2 year 2005. Petitioner, in CWJC No 11608 of 2010 (Nilam Kumari) lost in the selection process to petitioner Manisha Kumari. Nilam Kumari appealed to the District Primary Panchayat Teachers Appointment Appellate Tribunal and the Tribunal, by the impugned order dated 19.04.2010 passed in Case No 33 of 2009, upset the selection of Manisha Kumari but did not grant any relief to petitioner Nilam Kumari. Thus, the two writ applications by the two contestants. Heard the parties and with their consent, the two writ petitions are being disposed of at this stage itself. Three issues arise in the present cases. Firstly, whether a selection and appointment of Shiksha Mitra, as made in the year 2005, can be challenged for the first time before the Tribunal in the year, 2009? The second issue would be whether the Selection Committee acted legally in selecting the petitioner Manisha Kumari? The third issue would be whether if the order of the Tribunal was valid, could petitioner Nilam Kumari be denied relief, was valid? In my view, having heard the parties and considered the matter, all three issues have to be decided in favour of the petitioner Manisha Kumari. The order of the Tribunal cannot be sustained. So far as the first issue is concerned, the same stands concluded by decision of this Court in the case of Alok Kumar and others –Versus- State of Bihar and others since reported in 2009 (2) PLJR 929. This Court has noticed that in the notification of the year, 2005 itself under which appointments similarly were made, it was clearly stipulated that any objection to the selection had to be made within 30 days. 3 Admittedly, in the present cases, no such objection was filed much less before the competent authority as contemplated under the notification. In the said judgment again it is noticed that the initial appointments being contractual, they were renewed and ultimately all Shiksha Mitras, found working, were absorbed as Primary Panchayat Teacher by virtue of the Bihar Primary Panchayat Teachers (Service Conditions and Appointment) Rules, 2006. This Rule also, by virtue of Rule 18, as originally enacted, provided that any person aggrieved by wrongful appointment of Panchayat Teacher had to protest within 30 days before the Block Development Officer (BDO). Petitioner Nilam Kumari did not object in time. Thus, the facts are squarely covered by the decision as aforesaid and it was not open to the Tribunal to entertain the complaint at this late stage. Coming to the second issue whether the selection was illegal, the order of the Tribunal itself shows that Tribunal also considered the selection not to be illegal rather irregular. Tribunal has given a finding that both the petitioners secured same weightage. Thus, there was a tie. The Selection Committee, in the view of the Tribunal, ought to have taken age into consideration and Nilam Kumari being elder should have been selected whereas the Selection Committee gave weightage to higher academic qualification of petitioner Manishal Kumari. Both had completed Intermediate whereas Manisha Kumari had completed two parts of Graduation as well. Thus seen to this Court, there does not appear to be any wrongful discretion as made by the Selection Committee. Even if discretion was available, if the discretion was not illegally 4 exercised, the Tribunal had no jurisdiction to interfere in the matter as discretion itself implies more than one course available and the choice being left to the authority exercising the discretion. Thus, the Tribunal’s order itself cannot be sustained. So far as the third issue is concerned, even though this has become academic, this Court can only observe that once appointments are completed, the panel ceases to exist. Though for any reason, the panel can be reverted but the vacancy can be filled up only by fresh advertisement. Thus, on all three scores, petitioner Manisha Kumari succeeds and the petitioner Nilam Kumari fails. CWJC No 8006 of 2010 is, accordingly, allowed. The order of the Tribunal is set aside. It shall be deemed that petitioner Manisha Kumari continued in service with all consequential benefits. So far as CWJC No 11608 of 2010 is concerned, the same is dismissed as devoid of any merit. M.E.H./ (Navaniti Prasad Singh)