IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16463 of 2009 MADAN KUMAR SON OF SHRI DURGA PRASAD SAH, RESIDENT OF VILLAGE MILKI, POLICE STATION MIRGANJ, DISTRICT PURNEA. Versus 1. THE STATE OF BIHAR 2. THE DISTRICT MAGISTRATE, PURNEA. 3. THE SUB DIVISIONAL OFFICER, DHAMDAHA, DISTRICT PURNEA. 4. THE BLOCK DEVELOPMENT OFFICER, DHAMDAHA. 5. SUDHA DEVI, WIFE OF SHRI SHANKAR PRASAD SHARMA, RESIDENT OF VILLAGE MILKI, POLICE STATION MIRGANJ, DISTRICT PURNEA SARPANCH OF GRAM PANCHAYAT RANGPURA SOUTH POLICE STATION MIRGANJ, DISTRICT PURNEA. 6. PRAVEEN KUMAR SON OF SHRI DURGA PRASAD SAH, RESIDENT OF VILLAGE MILKI, POLICE STATION MIRGANJ, DISTRICT PURNEA. ----------- 2. 11.1.2010. Heard learned counsel for the petitioner and the State. The petitioner was an applicant inter-alia along with respondent no.6 for the post of Panchayat Secretary, Gram Panchayat, Rangpura Mirganj, District Purnea. Respondent no.6 was placed at sl.no.1 of the merit panel, and the petitioner at sl.no.3. After consideration on 27.9.2007, the petitioner came to be appointed and joined on 1.10.2007. Under the Rule 12 of the Rules regulating appointment, a person aggrieved was required to prefer an application before the competent authority within 30 days. Respondent 6 is alleged to have filed an application nearly two and half months later as stated by the Sarpanch in his show cause - 2 - before the Sub Divisional Officer in response to the complaint of respondent 6. The Sarpanch further stated that the persons at merit 1 and 2 of the panel did not participate in the counseling leading to appointment of the petitioner. From the proceedings before the Sub Divisional Officer, it appears that the petitioner was not even noticed even though it was his appointment which was under going scrutiny. Only the Sarpanch was noticed. The S.D.O. by his order dated 9.1.2008 did not arrive at any collusive finding of the participation of respondent 6 but only concluded that the situation appeared to one of participation and non-participation. The Sarpanch preferred an appeal when the appellate authority by order dated 1.7.2009 directed that in the interest of justice the merit panel be followed without a finding whether respondent 6 and the person at merit 2 of the panel had participated for counseling or not. Both the parties do not appear to have considered the stipulation requiring filing of any complaint within a - 3 - period of 30 days. Failure of a candidate to participate in the counseling or to file an application within the stipulated period may defeat his right for consideration and also raise issues of creation of 3rd party rights. This Court was, therefore, inclined in the nature of controversy to stay the operation of the impugned orders and issue notice to the private respondent no.6. Learned counsel for the State unable to defend the impugned orders even for the purposes of interim order suggested that the orders may be set aside but the petitioner may not be reinstated and the S.D.O. may be directed to hear both the petitioner and the respondent no.6 afresh and decide the matter again by a reasoned and speaking order arriving at definite finding of facts. Counsel for the petitioner has no objection to the same. The impugned orders dated 9.1.2008 and 1.7.2009 are set aside. This shall not result in automatic reinstatement of the petitioner. The respondent State authorities - 4 - N.H./ are restrained from making any appointment on the post in question except for the petitioner or respondent no.6 as the case may be, after fresh decision by the Sub Divisional Officer. Let such fresh consideration be done after hearing the petitioner and the private respondent no.6 as also the Sarpanch and a reasoned and speaking order be passed within a maximum period of two months from the date of receipt and production of a copy of this order. The application stands disposed. ( Navin Sinha,J.)