IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5713 of 2010 1. ANITA KUMARI @ ANITA DEVI W/O SANJIT PASWAN R/O VILL.- RAIPURA, P.O.- BALUKA RAM, P.S.- VAISHALI, DISTT.- VAISHALI Versus 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, WELFARE DEPARTMENT, GOVT. OF BIHAR, PATNA 2. THE DIRECTOR, INTEGRETED CHILD DEVELOPMENT SCHEME WELFARE DEPTT., GOVT. OF BIHAR, PATNA 3. THE COMMISSIONER, TIRHUT DIVISION, MUZAFFARPUR 4. THE DISTRICT MAGISTRATE, VAISHALI 5. THE DISTRICT PROGRAMME OFFICER, VAISHALI 6. THE CHILD DEVELOPMENT PROJECT OFFICER, VAISHALI 7. THE MUKHIYA, GRAM PANCHAYAT RAJ, MADARNA, VAISHALI 8. KIRAN KUMARI W/O RAM AWADHESH SHARMA R/O VILL.- RAIPURA, P.O. BALUKA RAM, P.S.- VAISHALI, DISTT.- VAISHALI ----------- 2. 23.09.2010 Heard learned Counsel for the petitioner and the learned Counsel for the State. The petitioner assails the order of the Commissioner, Tirhut Division dated 19.1.2010 in Service Appeal No. 173/2009 preferred by respondent no. 8. It upsets the order of the District Magistrate dated 13.6.2009 in Misc. Case No. 123 of 2008-2009 upholding the claim of the petitioner for appointment on the post of Anganwari Sevika leading to fresh selection and appointment. The ground urged to assail the order of the appellate authority is that it was in violation of the principles of natural justice. It was the petitioner’s appointment which was at stake. The entire discussion is with regard to the petitioner yet she was not noticed or heard before holding that she was ineligible for appointment being underage. In a writ petition the primary evidence is by way of document in support of the assertion. The petitioner in paragraph 15 of the writ application states that her date of birth is dated 5.4.1989 but does not annex any documentary evidence to make out a prima facie case. It therefore becomes a pure question of fact which may or may not be sustainable. The law stands well settled that the discretionary powers of the writ Court may not necessarily be exercised in a case only because it is proper to be exercised. It is more so necessary when the basic fact on which the claim is founded is withheld from the Court. There is no occasion to interfere with the order of the appellate authority dated 19.1.2010. However, if the petitioner files an application before the appellate authority within thirty days from today and encloses the primary proof in support of her claim that she was not underage as was submitted before the appellate authority, considering that the order of the appellate authority is stated to be ex parte in nature, naturally he shall then be required to re- hear the matter on merits after notice and opportunity to respondent no. 8 also and then pass fresh reasoned and speaking order within a maximum period of four months from the date of receipt and/or presentation of a copy of this order. In that event, the order dated 19.1.2010 shall not be an impediment in fresh reconsideration by the Commissioner when the order shall stand automatically recalled for the purpose. The writ application stands disposed. Snkumar/- (Navin Sinha,J.)