. . .IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5647 of 2010 1. Santosh Thakur S/O Ram Pratap Thakur R/O Vill.- Phuladh, P.O.- Mansoorpur, P.S.- Vaishali, Distt.- Vaishali Versus 1. The State Of Bihar Through The District Magistrate, Vaishali 2. The District Magistrate, Vaishali 3. The Collector, Vaishali 4. The Sub-Divisional Magistrate, Vaishali 5. The Block Development Officer, Vaishali 6. Sarpanch, Gram Panchayat Phuladh, Vaishali, Distt.- Vaishali ---------------------------------- For the Petitioner : Mr. Akashdeep, Advocate; with Mr. Shyameshear Kumar Singh,Advocate For the State : Mr. Pravin Kumar Verma, AC to SC 26 For Respondent No. 7 : Mr. Ajay Kumar Thakur, Advocate with Md. Imteyaz Ahmad, Advocate --------------- 5. 20.09.2011 Heard learned Counsel for the petitioner, the State and for private Respondent no. 7. The controversy in the writ application relates to appointment on the post of Panchayat Sachiv inGram Panchayat, Phuladh under the Bihar Gram Kutchery (Appointment, Conditions of Service and Duty) Rules 2007 (hereinafter referred to as „the Rules‟). In the contest for selection the petitioner was successful. Aggrieved, Respondent no. 7 preferred a complaint before the Sub Divisional Magistrate under Rule 12 on 22.9.2008. It was rejected on 11.10.2008. Respondent no. 7 then preferred an appeal before the District Magistrate under Rule 13 on 17.11.2008. It has been allowed on 17.2.2010.The petitioner is aggrieved by the Appellate order. 2 The writ application was filed on 29.3.2010 after serving two copies in the office of the Advocate General, the second copy intended to facilitate the filing of a counter affidavit expeditiously for early dispensation of justice. The order sheet reveals that the matter was taken up on 30.11.2010, 8.9.2011 and was also listed erroneously on 16.9.2011. True it is that there are no specific orders for filing of a counter affidavit. That may be a relevant issue where a private litigant be concerned, giving it the nature of an adversarial litigation. But when statutory orders of government functionaries are questioned by a citizen, it is not an adversarial litigation. Part 4 of the Directive Principles of State Policy under Article 37 states that the principles in that Chapter are fundamental in the governance of the Country and it was the duty of the State to apply this principle. Article 38 mandates the State to ensure justice to its citizens. Article 39 A specifically directs that “the State shall secure that the operation of the legal system promotes justice….” and that “securing justice are not denied to any citizen…..”. A passage of over one and half years from the date of service has not been considered sufficient by the State respondents to perform their constitutional obligation of assisting this Court in dispensation of justice. It cannot be lost site of that it is factually their actions which are under scrutiny. It is unfortunate that their attitude appears to be that till the Court does not direct them they are not required to file a counter affidavit. The Court can do no more than to express its disappointment in the fond hope that it may be taken note of. The appellate order dated 17.2.2010 upsets the order of the Sub Divisional Magistrate dated 11.10.2008, meaning thereby upsetting the appointment of the petitioner. The petitioner is further aggrieved by the 3 consequential order dated 16.3.2010 seeking reply to a show cause notice from the Sarpanch as to why the petitioner be not removed in pursuance of the order of the Appellate Authority. Learned Counsel for the petitioner submits that panel of candidates was published under Rule 6(9) on 30.8.2007. Objections were required to be filed within fifteen days under Rule 6(10) from the date of publication. Objections were required to be considered under Rule 6(12) within seven days and the panel to be published thereafter under Rule 6(13) was final. No objection was filed by Respondent no. 7 within the time prescribed. The final panel was published on 24.10.2007. The petitioner came to be appointed on 1.11.2007. Under Rule 12 a complaint with regard to the appointment could be filed within thirty days. Respondent no. 7 filed such complaint belatedly on 22.9.2008. The Sub Divisional Magistrate rejected his grievance on 11.10.2008. An appeal could be filed within thirty days under Rule 13 before the District Magistrate. The appeal was in fact filed much beyond time on 17.11.2008. There is no provision for condonation of the delay in filing appeal under the Rules. An authority being in the nature of a Tribunal or otherwise, but not a Court, had no power to condone the delay. Reliance is placed on AIR 1985 SC 1279 (Sakuru vs Tanaji) and AIR 2003 SC 4591 (Prakash H. Jain vs Marie Fernandes). It was thus contended that if the Appeal itself was not maintainable as time barred the entire proceeding before the Appellate Authority was nonest in the eye of law as being without jurisdiction and any orders passed by such an authority was therefore a nullity. The question of limitation was expressly raised in Appeal by the Sarpanch but has not been decided. Respondent no. 7 had not produced a valid medical certificate. The Sarpanch had raised this objection in Appeal which has again not been 4 decided. It did not mention the alias name „Bindu‟ of Respondent no., 7 and was therefore in respect of another person. There was no photograph affixed and it was not in the prescribed format. No notice of the Appellate proceedings were given to the petitioner. If any notice was issued by registered post it was never served upon the petitioner. There is no finding of the Appellate Authority with regard to valid service. It was further contended that the signature on the A/D card is not that of the petitioner, but is forged. The last objection on behalf of the petitioner was that the order by the Collector is without jurisdiction as the power is vested in the District Magistrate. Though an individual vested with the two powers may be the same their functions are distinct. Learned Counsel also sought to rely upon General Clauses Act. The Court does not consider it necessary to go into that controversy keeping in mind the understanding in common parlance that they constitute the same authority as apparent from the discussion in (1984) 3 SCC 243 (Neeraja Chaudhary v. State of M.P) at Paragraph-4 as follows:- “4………We expect the State Government to carry out this direction within one month from today. We would also direct the State Government to take immediate action for identification and release of bonded labourers, whenever any representative of these social action groups, whether on the Vigilance Committee or not, points out to the Collector/District Magistrate or the Deputy Collector that there is existence of bonded labour at a particular place …….” Counsel for the State supported the Appellate order urging that it is considered, reasoned and requires no interference. If the petitioner 5 did not participate in the proceeding he did so at his own risk and cannot make grievance under it. Counsel for the Respondent no. 7 submitted that according to the roster for vacancies, the petitioner belonged to the reserved category as a physically handicapped. He was not eligible to be considered. The roster vacancy was for the visually handicapped general category to which the respondent belongs. Earlier an enquiry had been held and a report submitted on 9.4.2008 by the BDO that the Respondent no. 7 had wrongly been denied appointment. The Sarpanch did not act very fairly when the appointment was denied to the respondent. That the petitioner may have had more marks than respondent no. 7 was an irrelevant issue. Notice was sent by the Appellate Authority through registered post to the petitioner. A presumption is attached for its correctness and delivery to the addressee in normal course of business. In fact the registered notice was served on the petitioner, as confirmed by the Senior Superintendent of Post Office at Muzaffarpur by his communication dated 12.8.2009 in response to a query dated 5.8.2009 made by respondent no. 7. Additionally Respondent no. 7 also moved under the Right to Information Act and obtained similar information from the Senior Superintendent of the same Post Office dated 1.12.2010 which again confirms service as also that the notice issued along side to the Sarpanch both of whom resided in the same village was also served. The Sarpanch had participated in the proceeding before the Appellate Authority. After the publication of the final panel on 24.10.2007 the respondent no. 7 had filed objection on 5.11.2007. The order of the Sub Divisional Magistrate was passed on 11.10.2008. Respondent no. 7 6 applied for a copy of the order dated 11.10.2008 on 31.10.2008 which was given to him on 15.11.2008 and the Appeal was filed on 17.11.2008. Thus the appeal was in fact filed within 30 days from the date of the order. The connotation of the word “from the date of the order” mentioned in Rule 13 has to be given a constructive interpretation to mean from the date that it is made available. This sequence of dates and facts has not been disputed by the petitioner. The manner in which the period of limitation shall be calculated has been explained in 1992 Supp (1) SCC 471 (CCE v. M.M. Rubber and Co.) at Paragraph-13 as follows:- “13. So far as the party who is affected by the order or decision for seeking his remedies against the same, he should be made aware of passing of such order. Therefore courts have uniformly laid down as a rule of law that for seeking the remedy the limitation starts from the date on which the order was communicated to him or the date on which it was pronounced or published under such circumstances that the parties affected by it have a reasonable opportunity of knowing of passing of the order and what it contains. The knowledge of the party affected by such a decision, either actual or constructive is thus an essential element which must be satisfied before the decision can be said to have been concluded and binding on him. Otherwise the party affected by it will have no means of obeying the order or acting in conformity with it or of appealing against it or otherwise having it set aside. “ If notice is issued to a party by a statutory functionary through registered post a presumption attaches to it under Section 114 (e) of the Evidence Act that in normal course of duties it has been delivered to the addressee. The procedural aspect of the matter draws sustenance also from the statutory provisions of the Code of Civil procedure. This is in 7 contradistinction of the postal communication made under postal certificate where the onus lies on the sender to demonstrate that it has reached the destination. This presumption gets fructified and confirmed when the postal authority issues a confirmation that it was delivered to the petitioner. This presumption is again fortified and confirmed when the registered notice simultaneously sent by the Appellate Authority to the Sarpanch in the same village has been received, delivery whereof has likewise been confirmed by the postal authorities and the Sarpanch in fact participated in pursuance of the same in the proceeding before the Appellate Authority. If the petitioner disputes receipt of the registered notice the onus lies on him. If he contended that the delivery report does not bear his signature it becomes a disputed question of fact which cannot be examined in the writ petition. Suffice it to notice that the Court has also perused his signature on the receiving enclosed to the show cause on behalf of Respondent no. 7 vis a vis the signature of the petitioner on the vakalatnama and is satisfied. Suffice it to state that the observation is confine d for the purpose of the present proceeding only. If a person receives the notice and refuses to participate in the proceeding it does not lie in his mouth to urge that the order was ex parte, in violation of the principle of natural justice and not sustainable. If he took the risk either in the hope that victory shall be his or in the expectation that even if he were to loose he shall carry the battle further by raising that issue later, he must carry the burden of the answerability that will arise. If the petitioner took that risk he must bear the consequences and it is not open for him to urge that the order was bad because it was exparte and in violation of the principles of natural justice. The proceedings before the Sub Divisional Magistrate were also ex-parte with no participation by the petitioner. 8 In (2004) 6 SCC 299 (N.K. Prasada v. Govt. of India) it has been held as follows:- “24. The principles of natural justice, it is well settled, cannot be put into a straitjacket formula. Its application will depend upon the facts and circumstances of each case. It is also well settled that if a party after having proper notice chose not to appear, he at a later stage cannot be permitted to say that he had not been given a fair opportunity of hearing……..” That brings to the fore the substantial question with regard to the roster vacancy, whether it belonged to the general category of visually impaired or reserved category of physically handicapped. The Court finds in the appellate order that the respondent no. 7 had specifically raised the issue that the roster vacancy fell for the visually impaired in the general category. He had relied on certain government instructions as noticed in the appellate order. The Sarpanch who appeared before the Appellate Authority and contested the matter does not appear to have raised any objection with regard to this issue however he did raise objection to the question that the appeal was barred by limitation and that the medical certificate of Respondent no. 7 did not bear the photograph, was not in the prescribed form and that name of respondent no. 7 figured at serial 2.. Once after contest, when the petitioner himself opted to stay out, the Appellate Authority has arrived at the finding that the roster vacancy was for the general category for visually impaired, there is no occasion for the Court to reopen that controversy at the behest of the petitioner. It being a question of fact has attained finality. The contention of the petitioner that the medical certificate of Respondent no. 7 did not bear his alias name “Bindu” is of no relevance. The petitioner does not dispute the other entries with regard to the 9 proper name of Respondent no. 7, his parentage and his village address. The Sarpanch also contended at best that the medical certificate as irregular, but certainly not illegal. If an order has been passed by the statutory authority and which is otherwise reasoned, the order not being without jurisdiction and passed upon discussion cannot be interfered with by this Court in exercise of powers under Article 226 of the Constitution of India merely because another view can possibly be taken by this Court. On the finding of the District Magistrate, the certificate may have been irregular at best but not illegal. Once the certificate was there and the District Magistrate for germane reasons in the entirety of the matter has accepted the genuineness of the same there is no occasion for this Court to sit as appellate authority over it. The limits of judicial review in such cases had been considered in (1978) 2 SCC 674 (Abdul Rehman v. S.T.A.T): “5………In dealing with applications for writs of certiorari under Article 226 of the Constitution in cases of the present kind, it is necessary to bear in mind that the High Court does not exercise the jurisdiction of an appellate court and the findings or conclusions on questions of fact could hardly be re-examined or disturbed by it under Article 226 of the Constitution unless the well-recognised tests in that behalf were satisfied…” The failure to file any objections to the draft panel under the Rules cannot deprive an aggrieved from filing a complaint under Rule 12. The Rules do not contain any such limitation. The filing of the complaint under Rule 12 after thirty days has not prejudiced the petitioner in any manner. He had not participated in the proceedings also. The order upheld his appointment. There shall have to be a difference between a patent illegality in the selection and a latent illegality. In the latter case the period of thirty days may have relevance 10 but not in the former. The level of persons participating in the selection process has to be kept in mind. The minimum qualification for the post is only Matriculation. There is no presumption that every one knows the law. Merely because the post may have been that of a Sachiv in the Gram Kutchery shall not lead to a presumption for knowledge of procedure in all its nuances by the applicant. The principle that there is no presumption that everyone knows the law has been explained in (1979) 2 SCC 409 (Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P) at Paragraph-6 as follows:- “6. ………..Moreover, it must be remembered that there is no presumption that every person knows the law. It is often said that everyone is presumed to know the law, but that is not a correct statement: there is no such maxim known to the law. Over a hundred and thirty years ago, Maule, J., pointed out in Martindale v. Falkner3: “There is no presumption in this country that every person knows the law: it would be contrary to common sense and reason if it were so.” Scrutton, L.J., also once said: “It is impossible to know all the statutory law, and not very possible to know all the common law.” But it was Lord Atkin who, as in so many other spheres, put the point in its proper context when he said in Evans v. Bartlam4: “… the fact is that there is not and never has been a presumption that every one knows the law. There is the rule that ignorance of the law does not excuse, a maxim of very different scope and application.” It is, therefore, not possible to presume, in the absence of any material placed before the Court, that the. appellant had full knowledge of its right to exemption so as to warrant an inference that the appellant waived such right by addressing the letter dated June 25, 1970. We accordingly reject the plea of waiver raised on behalf of the State Government.” The Court is therefore not persuaded with such a rigid interpretation to Rule 12 so as to hold that even if the person has been able to demonstrate illegally the Court will still decline interference on that ground thereby lending validity to a selection which may itself not be in accordance with law. 11 The Court must desist from an interpretation which shall result in the revival of an illegal order as explained in (1999) 8 SCC 16 (Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar) at Paragraph-38 as follows:- “38. For what has been stated above we hold that the order of the learned Member of Board of Revenue directing action to be taken for refund of the excess compensation was valid and proper though he had no jurisdiction to pass the order. In the event it is set aside it would amount to reviving an invalid order of payment of excess compensation to the appellant.” There can be no quarrel with the express proposition that the Authority under the Rules not being a Court had no power to condone the delay unless the rule so provided as laid down in the case of Marie Fernandes (Supra) and Sakuru(Supra) relied upon on behalf of the petitioner. The District Magistrate undoubtedly had no jurisdiction to exercise any inherent powers for condoning the delay by invoking Section 5 of the Limitation Act. But once this Court has held that there was in fact no delay in preferring the appeal the question becomes irrelevant. The Court on the aforesaid discussion arrives at the conclusion that the appellate order requires no interference. The writ application is dismissed. Snkumar/- (Navin Sinha,J.)