1 IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1 of 2008 In (CIVIL WRIT JURISDICTION CASE 15773/2006) Chandeshwar Kumar Sahani son of Rudal Sahani, resident of village- Sonbarsa, P.S. Harsidhi, District- E. Champaran (Motihari). ………….Petitioner/ Appellant. Versus 1. The State Of Bihar 2. The Secretary Primary and Adult Education Department, Govt. of Bihar, Patna. 3. The District Magistrate, E. Champaran (Motihari) 4. The District Superintendent of Education (D.S.E.) E. Champaran (Motihari). 5. The Block Development Officer (B.D.O.) Harsidhi Block, P.S. Harsidhi, District East Champaran (Motihari). 6. The Panchayat Secretary (Panchayat Sachiva) Gram Panchayat Raj Sonbarsa, P.S. Harsidhi, District- E. Champaran (Motihari). 7. Yogendra Pd. Kushwaha the Mukhia of Gram Panchayat Raj Sonbarsa, P.S. Harsidhi, District East Champaran (Motihari). 8. Krishna Giri S/O Baidyanath Giri 9. Manoj Kr. Giri S/O Jaimangal Giri, Both are resident of Village Sonbarsa, P.S. Harsidhi, District East Champaran (Motihari). 10. Amit Kr. Tiwary S/O Shrikant Tiwary 11. Surabhi Srivastava D/O Ashok Kr. Srivastava 12. Shivani Srivastava D/O Subodh Kr. 13. Manoj Kr. S/O Chandrika Pd. 14. Shailendra Kumar S/O Sonalal Pd. 15. Archana Kumari D/O Hemraj Pd. 16. Geeta Devi W/O Sheo Balak Pd. 17. Dinesh Kr. S/O Rajbansi Sahani 18. Chandeshwar Ram S/O Jawahar Ram Respondent Nos. 8, 9, 12, 13, 14, 17 & 18 are resident of villge Sonbarsa P.S. Harsidhi Dist.East Champaran (Motihari). Respdt. Nos. 10, 11, 15 and 16 are resident of village Dhan Khasaiya P.S. Harsidhi, Distt. East Champaran (Motihari). ……………Respondents/ Respondents. 9 27.09.2011 The present Letters Patent Appeal has been filed against the order dated 7.11.2007 passed in C.W.J.C. No.15773 of 2006, whereby the learned Single Judge has dismissed the writ application filed by the writ petitioner- appellant herein only on the ground that no prima-facie case has been made out for interference. 2 Learned counsel for the appellant has submitted that the appellant has got highest marks, i.e. 70% in the selection made on the post of Shiksha Mitra as prescribed under the rules. It appears that there was 12 post of Siksha Mitra against which 28 candidates have applied in which the appellant was shown having higher marks but his candidature was rejected on the ground that his character was found to be doubtful under the caption “ ”. It has been contended on behalf of the appellant that there was no material available before the concerned authority to come on such conclusion and further appellant was also not given any notice as with regard to any material which proves his character to be doubtful. It has also been contended that respondent no.7, Mukhia of Gram Panchayat was also given certificate of fitness to the appellant and there was no occasion to eliminate him from the post of Shiksha Mitra who was figured at the top of the merit list. Learned Government Pleader has questioned the maintainability of the writ petition itself on the ground that no writ could lie against the Mukhiya, respondent no.7. We had the occasion to go through the material annexed with the writ petition as also in the appeal. The fact remains that the school in question is controlled and funded by the government. We do not find force in the argument of the learned Government Pleader to the effect that the Mukhiya is the only person who has to implement the rules as 3 contemplated by the Government for working of the Government School. In absence of any material in support of the fact that a writ against Mukhiya is not maintainable, the argument of the learned Government Pleader is not sustainable as it is a Government School and funded by the State Government. So far appointment of the appellant is concerned we had the occasion to go through the merit list annexed as Annexure-1 to the writ petition. The fact remains that the appellant has got 70% marks. In absence of any material showing character of the appellant as doubtful, we are of the opinion that the decision to terminate the appellant who has got highest marks of 70% is only after thought. Under the above circumstance, it has to be observed that the action of the concerned respondent in not appointing the appellant is arbitrary and discriminatory in nature. In that view of the matter, we set aside the order of the learned Single Judge. However, taking note of the submission made by the learned Government Pleader to the effect that the post of Siksha Mitra has been abolished by introducing a new Rule, i.e. BIHAR PANCHAYAT SHIKSHAK NIYAMAWALI, 2006, we are of the opinion that as injustice has been done to the appellant herein it can be rectified by directing the respondent to adjust the appellant on the post of Panchayat Teacher in accordance with law. 4 However, it is made clear that the present appointment will be made only for the period of 11 months and if the authority is satisfied he may extend the said period as per rules. With the above observation this L.P.A. is allowed. Abhay Kumar ( T. Meena Kumari, J.) (Vikash Jain, J.)