IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8283 of 2007 DILIP KUMAR MISHRA Versus THE CHAIRMAN,BIHAR SANSKRIT SHIKSHA BOARD & ORS ----------- For the Petitioner : Ms. Anjana Mishra,Advocate For the Board : Mr Tej Bahadur Singh,Sr.Advocate with Mr Gyan Shankar,Advocate For Respondent No. 6 : Mr Ishwari Singh,Advocate For Respondent No. 3 : Mr Puroshottam Jha, Advocate For Respondent No. 2: Mr Shailendra Kumar Jha,Advocate, JC to SC 9 ------- 8. 19.09.2008 Heard the learned Counsel for the petitioner, learned Counsel for the Board, learned Counsel for respondent no. 3 and the learned Counsel for private respondent no. 6. The controversy relates to appointment on the post of Assistant Teacher. The petitioner contends that his name was at serial one of the merit panel while that of respondent no. 2 was at serial two. Reliance for the purpose is placed on a photo copy of the merit panel at Annexure 3 which is stated to be initialed by the members of the Selection Committee and also specifically records position of the petitioner at serial one by comments below the panel. The further contention of the petitioner is that this panel was then acted upon when the petitioner who held a higher qualification of Vedacharya which respondent no. 6 did not possess, came to be appointed and joined as an Assistant Teacher in Sanskrit on 1.9.2006 in anticipation of the approval of the Board. Letter No. 62 of 2006 dated 21.9.2006 was sent by respondent no. 3 to the Board intimating joining of the petitioner and requesting approval for appointment and payment of salary. Then came order of the Board dated 15.2.2007 granting approval to appointment of respondent no. 6. 2 Counter affidavit has been filed on behalf of the Board. The Counter affidavit does not deny or make any averment whatsoever with regard to merit panel placed by the petitioner, resolution of the managing Committee appointing him and the letter sent by the School to the board for approval of appointment and payment of salary. All that it states that that it is apparent from Annexure 6 to the writ application (the approval given to the appointment of respondent no. 6) that the appointment of respondent no. 6 was approved by the board. That this order was as per decision of the managing Committee of the School at its meeting dated 2.8.2006 bearing proposal no. 3. Surprisingly no copy of the so called proposal no. 3 of the Managing Committee of the School dated 2.8.2006 is annexed. The counter affidavit of the Board in the affidavit portion has been left completely blank. No credence can be given to such counter affidavit and the Court rejects the same. Learned Counsel for the Board was directed to produce records relating to the case by order dated 22.4.2008. From the order dated 7.7.2008 it is apparent from what was placed before this Court of the original records further issues arose which has been noticed in detail in the order dated 7.7.23008 when time was sought on behalf of the Board to file further counter affidavit explaining the discrepancies as noticed between the zerox copy placed on record and the original. Today Shri Singh appearing on behalf of the Board states that when the Board officials went to the School to examine the original records of the School the Principal informed that he had given the original records to the District Education Officer. When the Board personnel queried from the 3 District Education Officer he said that the Principal had never made available the records. A separate counter affidavit has been filed on behalf of the Principal. It seeks to raise issue of jurisdiction by pleading that since the School was a private school writ petition would not lie. Paragraph 4 of the counter affidavit does not specifically deny the panel and the consequent resolution of the Managing Committee of the School and the letters sent by the Principal to the Board with regard to the petitioner but states that “they appear to be forged and fabricated, therefore, the instant case involves so many dispute questions of fact”. It then states that the original records are not available with the Principal. What this Court finds indeed interesting in the affidavit of the Principal is that there is no pleading whatsoever that any resolution of the Managing Committee of the school bearing proposal no. 3 dated 2.8.2006 in respect of respondent no. 6 was sent to the Board. A separate counter affidavit has been filed on behalf of the respondent no. 6. He also raised the issue of alternative remedy of statutory appeal being available to the petitioner challenging maintainability of the writ petition. Annexure E/6 to the counter affidavit of the respondent no. 6 is purported to be proposal approved by the managing Committee of the school forwarded to the Board in respect of him. The counter affidavit of respondent no. 6 at paragraph 9 states that the averments of the petitioner with regard to the merit panel and recommendations in his favour to the Board are absolutely incorrect and 4 misleading and that they appear not to be true. Again there is no specific denial. In so far as the objection of the respondents with regard to maintainability of the writ petition is concerned, considering that the writ petition has remained pending before this Court since 13.7.2007 and the parties have completed their respective pleadings on merit this Court is not persuaded to throw out the writ petition on that ground. It is settled law to reject a writ petition on the ground of alternative remedy is a discretionary jurisdiction. This Court is not persuaded to exercise its discretion at this belated stage to throw out the writ petition on that ground. What emerges now is the controversy with regard to the correctness of the person selected and at serial one of the panel, whether it be the petitioner or respondent no. 6. While both of them shall inter alia seek to justify their respective claims, those who are answerable for the episode from which the controversy arises refuse to come out clearly and this Court has also not had the benefit of the original documents from them. It is therefore not possible for this Court to arrive at a positive conclusion either in favour of the petitioner or respondent no. 6. The appropriate order at this stage therefore shall be to direct the Secretary, Human Resources Department, to either hold an enquiry himself or to depute a senior class I officer at the Secretariat level to examine the controversy on facts from the original records of the Board and the School in question and arrive at a fresh recommendation to be 5 placed before the Secretary who then shall pass appropriate orders with regard to the petitioner or respondent no. 6, as the case may be. Before parting with the case, given the stand of the Principal and the Board when the Court did not have the benefit of the original documents, this Court gives liberty to the Secretary to even draw adverse inference in arriving at his conclusion in the event that the original records are not placed before him. Let such decision be taken after hearing all concerned within a maximum period of three months from the date of receipt and/or production of a copy of this order. Snkumar/- (Navin Sinha,J.)