IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2783 of 2009 RITA KUMARI JAISWAL Versus THE STATE OF BIHAR & ORS ----------- 4 27-10-2009 Heard the learned counsel for the petitioner and the State as well as for the Respondent no.5. Counter affidavit is stated to be filed on behalf of the State on 26.10.2009 after serving copies. The same is not available on the record. The Court does not consider it prudent to hold up the proceeding for that reason and therefore requested the learned counsel for the State to make available his copy of the counter affidavit for perusal by the Court. The Office is directed to place the original copy of the counter affidavit on record. Counter affidavit has also been filed on behalf of the private Respondent no.5. Upon selection for the post of Aanganbari Sevika, one Baby Kumari was placed at Serial no.1 . The petitioner was at Serial No.2 while Respondent no.5 was at Serial no.4. Baby Kumari joined on the post of Aanganbari Sevika when her joining was found to be bad. The Commissioner, Tirhut Division, therefore, on 27.7.2007 directed fresh selection and appointment on the post of Aanganbari Sevika reiterated by the District Programme Officer on 16.8.2007. In the meantime, Respondent no.5 assailed the appointment of Baby Kumari before the District Magistrate who by his order dated - 2 - 24.10.2007 upheld the appointment of Baby Kumari . Respondent no.5 preferred an appeal before the Commissioner, Tirhut Division who by his order dated 2.9.2008 held the appointment of Baby Kumari to be bad and directed the appointment of Respondent no.5. Learned counsel for the petitioner rightly urges in law that once the person at Serial no.1 of the panel joined and subsequently was terminated for any reason, the panel stood exhausted. The only recourse was to proceed for fresh selection as rightly directed by the Commissioner, Tirhut Division on 27.7.2007. It is next urged that even if the Respondents be considered justified in proceeding with the same panel, the appointment had to be strictly done in order of the merit position in the panel and the petitioner had a preferential right to be considered vis-à-vis Respondent no.5.He lastly urges that ,in fact, no fresh selection has been done and in pursuance of which Respondent no.5 came to be appointed as suggested in the counter affidavit of the official respondents. Learned counsel for the Respondents urged that after Baby Kumari was appointed the petitioner did not choose to pursue her remedy and the Respondent no.5 obtained orders from the competent authority for her appointment. The counter affidavit of the official respondents though refers to an alleged Aam Sabha , in pursuance whereof Respondent no.5 came to be appointed afresh. This does not appeal to the Court - 3 - for the reason that the respondents have not chosen to mention even the date of such an Aam Sabha , making the contention doubtful. This Court , therefore, finds it difficult to upheld the selection of Respondent no.5 , as allegedly done fresh. This conclusion is verified by the fact that the order of appointment of Respondent no.5 dated 8.12.2008 does not refer to any fresh selection by the Aam Sabha but to the appellate order passed by the Commissioner dated 2.9.2008 on an appeal preferred by Respondent no.5 against the order of the District Magistrate dated 24.10.2007 declining to interfere with the appointment of Baby Kumari . On the documentary records of the official respondents themselves their case falsified. For the reasons of the aforesaid discussion, the impugned order dated 8.12.2008 appointing Respondent no.5 is not sustainable. The writ application is allowed. The Respondents are directed to proceed afresh in accordance with law for selection of Anganbari Sevika , in which both petitioner and Respondent no.5 shall be eligible to apply also, but the selection and appointment of the eligible has to be done strictly in accordance with law whoever it may be. NKS/- ( Navin Sinha, J)