IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8365 of 2010 1. REKHA KUMARI W/O SRI MANESHWAR PRASAD R/O VILL BARI MISIAN, P.O.HUSAINA, P.S.SARMERA, DISTT- NALANDA Versus 1. THE STATE OF BIHAR 2. SECRETARY, DEPARTMENT OF EDUCATION BIHAR, PATNA 3. DISTRICT MAGISTRATE -CUM-COLLECTOR NALANDA 4. DISTRICT EDUCATION SUPERINTENDENT NALANDA 5. AREA OFFICER, EDUCATION NALANDA 6. BLOCK DEVELOPMENT OFFICER SARMERA, NALANDA 7. BLOCK EDUCATION EXTENSION OFFICER SARMERA, DISTT-NALANDA 8. ANIL PRASAD , MUKHIYA, GRAM PANCHAYAT SARMERA, DISTT-NALANDA 9. AMBIKA RAJAK, PANCHAYAT SECRETARY, GRAM PANCHAYAT SARMERA, NALANDA 10. SRI RAM SURESH SINGH ASST. TEACHER, HIGH SCHOOL SARE, NALANDA 11. SUSHMA KUMARI W/O SRI BIRENDRA PRASAD R/O VILL +P.O.SASAUR, P.S.SARMERA, DISTT-NALANDA ----------- 2 28.7.2010 Petitioner challenges the order of the District Teachers Appointment Appellate Authority, Nalanda as passed in Case no. 1083B of 2009 dated 16.4.2010.By the aforesaid order, the petitioner’s appeal has been dismissed. Heard learned counsel for the parties and with their consent the writ application is being disposed of at this stage itself. Petitioner had approached the tribunal for setting aside the selection of the Primary Panchayat Teacher in relation to the second phase of recruitment for Sarmera Gram Panchayat. She had complained that she had 66% marks in Intermediate and petitioner having experience of Lok Teacher was granted 20% 2 marks more as per rule. Thus her total marks was 86%. As against which a person, namely Sushma Kumari has been selected, who had scored about 82%.The tribunal having considered the matter and perused the records dismissed the appeal of the petitioner on the ground that the petitioner did not object to the final merit list nor did petitioner turn up for counseling, as such petitioner could not challenge the selection. In my view, the order of the tribunal cannot be sustained. In the defence of the Mukhiya ,as field before the tribunal, as contained in Annexure 7 , states that first a provisional merit list was made and published. Petitioner did not object. Then the final merit list was prepared, petitioner did not object. Thereafter counseling was done including the counseling of all persons, who were not in the merit list as well. Petitioner did not appear, as such petitioner could not complain. This stand of the Mukhiya has been accepted by the tribunal. In my view, the tribunal erred in accepting the said stand. If we refer to the first provisional merit list, we would find that it contents all trained teachers. Petitioner was not a trained teacher and as such having that only trained teachers were being selected , had no reason to object. This being a lis there was no point in petitioner pursuing the matter any further but when the final merit list dated 30.12.2008 was prepared, the provisional merit list has been changed and respondent no.11- Sushma Kumari was included therein even though she was 3 untrained teacher. There was no reason for the petitioner to look up the final list because the provisional itself shows that only trained teachers would be taken in. Then the Mukhiya admits notwithstanding the final list having been prepared, counseling was done of all the persons, who turned down on 27.1.2009 which included the people who were not even in the merit list i.e not understandable how when the petitioner knows of this. Thus, in respect of both the events i.e. final merit list and the counseling, petitioner had no reason to take any action because the provisional merit list itself ruled out the appointment of the petitioner. Thus, the tribunal is wrong in dismissing the application of the petitioner against the selection of respondent no.11. In that view of the matter I am left with no option but to set aside the order of the tribunal and remand the matter to the tribunal for fresh consideration. Respondent no. 11- Sushma Kumari would be added as a party respondent before the tribunal and the tribunal would examine the records once again and after hearing the parties pass an order afresh in accordance with law within a period of thirty days from the date of production of a copy of this order before the tribunal. With the aforesaid observations and directions, the writ petition stands disposed of. singh ( Navaniti Prasad Singh, J.)