IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3418 of 2007 PANKAJ KUMAR son of Shri Umesh Prasad Chaurasia, resident of village Bauridih, P.S. Khudaganj, district Nalanda. Versus 1. THE STATE OF BIHAR 2. The District Magistrate cum Collector, Nalanda. 3. The District Superintendent of Education, Nalanda. 4. The Head Master, Madhya Vidyalay, Bauri Sarai, Islampur, District Nalanda. 5. The Mukhiya, Gram Panchayat Bauridih, Islampur, dist. Nalanda. 6. The Panchayat Sevek, Gram Panhayat, Baurisarai, Dist. Nalanda. 7. The Block Education Extension officer, Islampur, Dist. Nalanda. 8. Raj Nandan Yadav son of Shri Arjun Yadav, resident of village Madi Kala, P.O. Baurisarai, P.S. Khudaganj, Dist. Nalanda. ----------- 2 1.10.2010 Having heard counsel for the petitioner and counsel for the State as with regard to the following relief, “That this writ application is being filed for issuance of a writ of mandamus upon respondent authorities to reinstate the petitioner on the post of Shikshas Mitra/ Panchayat Shishak which was illegally stopped to take work from the petitioner on the post of Shiksha Mitra and removed the petitioner by the Mukhiya Respondent no.5 and further issuance of a writ of certiorari for quashing the appointment of Respondent no.8 Raj Nandan Yadav who was appointed by Mukhiya in place of petitioner. “ this Court would find it difficult now to direct for appointment of the petitioner on the post of Siksha Mitra, inasmuch as, his first tenure of 11 months was allegedly not extended on account of his unsatisfactory service. To that extent there is a clear averment in paragraph 8 of the counter affidavit which reads as follows:- “That the deponent submits that pursuant to the direction issued by the deponent vide letter no. 1356 dated 13.04.2007, the concerned Block Education Extension officer, Islampur-2 after enquiring the matter vide his letter no.275 dated 10.09.2007 reported that the petitioner was initially appointed by the concerned Mukhiya only for eleven months for Middle School, Bauridih vide letter no.20 2 dated 25.02.2003, but thereafter on 22.04.2004 the Chairman and Secretary of the Vidayalaya Shiksha Samiti, M.S. Bauridhi had complained about the petitioner that he did not attend the school in time and also remained absent from the school for long period time to time.” The said stand is duly supported by the authority by annexing the report with the counter affidavit and as such this Court would find it difficult to hold that refusal to extend the terms of the petitioner beyond 11 months was arbitrary. The rest of the grievance of the petitioner that after his displacement the respondents had appointed respondent no.8 in an illegal manner has also been explained by the respondents in paragraph 10 of the counter affidavit asserting that respondent no.8 had higher marks and as such after removal of the petitioner from the post of Siksha Mitra he had been appointed. It has to be noted that a copy of such counter affidavit was served on counsel for the petitioner on 26.9.2007 but in the period of 3 years no rejoinder affidavit has been filed by the petitioner and today an explanation has been given by the learned counsel for the petitioner that the petitioner had recently sustained fracture injury on account of which he could not file this rejoinder. Such lame excuse on the face of record has to be rejected by this Court in as much the period of three years was sufficient to file a rejoinder. Normally, this Court would have straight way dismissed of this writ application, but then as the petitioner still has a grievance that respondent no.8 was illegally appointed on the post of Shikshamitra, despite his having lesser marks, an none of 3 the parties have disclosed the marks of both the petitioner and respondent no.8, this Court would give an additional opportunity to the petitioner for filing a complaint before the District Teachers Appellate Authority only with regard to the alleged illegality in the selection and appointment of respondent no.8 specially when the respondent no.8 despite of service of notice is unrepresented by any counsel and has also not filed any specific counter affidavit. In that view of the matter, this application is disposed of with a liberty to the petitioner to approach the District Teachers Appellate Authority by filing a complaint, and if such a complaint is filed the same shall be disposed of on merits without going into the question of delay after giving an opportunity of hearing to the petitioner and respondent no.8 and if for any reason the appointment of Respondent no.8 on post of Shikshamitra is held to be bad rendering also his subsequent consequential absorption on the post of Panchayat Shikshask, unsustainable the resultant vacancy on account of terminating of service of Respondent no.8 shall be filled up strictly in accordance of 2006 Rules. With the aforementioned liberty, observations and directions this application is disposed of. Abhay Kumar ( Mihir Kumar Jha, J.)