IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.18930 of 2010 SANJU KUMARI @ SANJU DEVI, W/O SUNIL PRASAD, R/O VILLAGE-KAJICHAK, P.O.-BANSH GOPAL, P.S.- RAJAULI, DISTRICT-NAWADA. …………………PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY, WELFARE DEPARTMENT, OLD SECRETARIAT, PATNA. 2. THE COMMISSIONER, MAGADH DIVISION, GAYA. 3. THE DISTRICT MAGISTRATE, GAYA. 4. THE SUB-DIVISIONAL OFFICER, RAJAULI (NAWADA). 5. THE CHILD DEVELOPMENT PROJECT OFFICER, BLOCK-RAJAULI, P.O.+P.S.-RAJAULI, DISTRICT- NAWADA. 6. THE GRAM PANCHAYAT AMAWAN WEST, P.S.- RAJAULI, DISTRICT-NAWADAH THROUGH ITS SECRETARY, GRAM PANCHAYAT. 7. THE MUKHIYA, GRAM PANCHAYAT AMAWAN (AMAWAN) WEST, P.O.-BANSH GOPAL, P.S.- RAJAULI, DISTRICT-NAWADA. 8. SNEHLATA KUMARI, W/O MANOJ PRASAD, R/O VILLAGE-KAJICHAK, P.O.-BANSH GOPAL, P.S.- RAJAULI, DISTRICT-NAWADA. …………………RESPONDENTS. ----------- 2 25.03.2011 Both petitioner and respondent no.8, along with others, were applicants for selection as Anganwari Sevika for the concerned centre. As per the grading system for the purposes of selection of Anganwari Sevika they were allotted marks. Petitioner had produced her certificate of Matriculation as well as Intermediate whereas respondent no.8 had produced her certificate of only Matriculation. After applying the grading system with bonus marks, petitioner got 61.22% marks whereas respondent no.8 got 61.11% marks. Ignoring the fraction in the marks of both the candidates and then finding it equal, the respondents 2 had applied a test for selection of candidate between them by asking them to write an application for leave. Both the candidates wrote such an application. In the application of the respondent no.8, there were less mistakes. Therefore, she was selected for appointment. Petitioner moved this Court against such selection of respondent no.8. The writ application was disposed of with a direction to the respondent Collector to take a decision in the matter after hearing the parties. The Collector after hearing the parties decided the matter in favour of the petitioner. Against that order of the Collector respondent no.8 moved this Court. This Court disposed of the writ application of the respondent no.8 by directing her to move the Commissioner in appeal. Accordingly, she moved in appeal and the order of the Commissioner passed in her favour by setting aside the order of the Collector, as contained in Annexure-1 is impugned in this writ application. Learned counsel for the petitioner submits that if the fraction is taken into account the petitioner had higher marks. Therefore, she should have been selected for appointment. He also submits that, even if the fraction is ignored, since admittedly the petitioner is older in age, in terms of the judgment of the Apex Court in the case of State of U.P. Vs. Ram Swarup Saroj 3 [2000(3) SCC 699], she should have been selected. He also submits that it was not open to the respondents to introduce a new method of selection not laid down in the Guidelines and, therefore, selection of candidate on the basis of applications of leave, which they were made to write, could not be a basis for selection between the two candidates. Learned counsel for the private respondents has appeared and submits that the respondents asked the candidates to write application for leave with their consent and with the general agreement of all the officials present there. Therefore, petitioner cannot raise a grievance against that step adopted by the authorities for selecting candidate. He also submits that before the Apex Court in the aforesaid judgment marks allotted in the written examination was under consideration. Since the candidates had secured equal marks, the High Court had directed the result to be prepared and ranking to be allotted on the basis of marks allotted in the interview, which the Apex Court did not find correct. Hence, no law was laid down by the Apex Court for fixing up the ranking of the candidates securing equal marks on the basis of date of birth. Counter affidavit has been filed on behalf of the State authorities, in which, the impugned order of 4 the Commissioner has been supported. After hearing the parties, this Court finds that the petitioner had produced certificate for higher qualification before the respondents. It was also not required for the respondents to ignore the fraction and hold that the petitioner and respondent no.8 had equal marks. If the fraction is taken into account the petitioner had higher marks than the respondent no.8. This Court also finds that on the basis of available materials and certificate produced by the respective candidates only the respondents were required to judge the comparative eligibility of the candidates for appointment. Higher qualification could be one of the grounds and older in age could be another ground. But this had to be done by the respondents on the basis of the materials already available before them. It was not open to the respondents to introduce some new procedure for selection of the candidate. Even if the petitioner had agreed to it at that point of time that does not act as an estoppel against her from challenging the selection made on that basis. When the Guidelines lays down a specific procedure for selection it has to be made strictly on that basis and not on the basis of any other method foreign to the procedure laid down in the Guidelines. 5 In the circumstances, this Court finds that the order of the Commissioner allowing the appeal of the respondent no.8 is not sustainable in law and, therefore, the same is quashed. The order of the Collector is restored and is directed to be implemented. The writ application is allowed with the aforesaid observations and directions. Arvind/ ( J. N. Singh, J.)