IN THE HIGH COURT OF JUDICATURE AT PATNA. C. W. J. C. NO. 5791 OF 2009 Kumari Mamta @ Mamta Kumari, W/o Uma Shankar Verma, Resident of Village- Ramganj, P.O. Sansarpur, Block+P.S.+ Distt.- Khagaria -Versus- 1. The State of Bihar 2. District Teacher Employment Appellate Tribunal, Khagaria through its Chairman 3. The Member, District Teacher Employment Appellate Tribunal, Khagaria. 4. The District Magistrate, Khagaria 5. The District Education Officer, Khagaria. 6. The District Superintendent of Education, Khagaria. 7. The Block Education Extension Offuicer, Block-Khagaria, Distt.- Khagaria. 8. The Mukhiya, Gram Panchayat Raj Ratan, Block+P.S.+District- Khagaria. 9. The Pancjhayat Secretary, Gram Panchayat Raj Ratan, Block+P.S.+District-Khagaria. 10. Sri Shyam Nandan, S/o Narsingh Prasad, Village- Dukhatol, P.O. Maheshkhunt, P.S. Gogri, Distt.- Khagaria …………………. Respondents. Counsel for the petitioner: Mr. Rajendra Pd. Singh Counsel for the state : Mr. Rakesh Prabhat (A.C. to SC-13) Counsel for respondent No. 10- R.S. Roy (Sr. Advocate) Yogesh Kumar 17.3.2010 Petitioner’s prayer is for quashing of order dated 17.04.2009 passed by District Teachers Employment Appellate Tribunal, Khagaria whereby a direction has been issued to appoint respondent No. 10 as Panchayat Teacher in Gram Panchayat Raj, Ratan in place of the petitioner. By impugned order, petitioner’s appointment has been cancelled. An advertisement had been published for appointment against 11 Panchayat Teachers in Gram Panchayat Raj, Ratan, block-Khagaria, Distt.- Khagaria. The roster point for 11 posts in Gram Panchayat Raj, Ratan stated from 1533 to 1543. The roster point was as follows: 2 Serial No. Roster Category 01. 1533 Unreserved Handicapped 02. 1534 SC - Male/Female 03. 1535 Unreserved Male/Female 04. 1536 EBC - Female 05. 1537 Unreserved-Female 06. 1538 BC-Female 07. 1539 Unreserved Male/Female 08. 1540 SC-Female 09. 1541 Unreserved Male/Female 10. 1542 EBC Male/Female 11. 1543 Unreserved Male/Female Both petitioner and the respondent No. 10 had applied as untrained candidates. The percentage of marks of respondent No. 10 as per the merit list was 75.88 percent and percentage of marks of petitioner was 65 per cent. Counselling for 11 posts was held on 19.02.2007 in which total 83 candidates participated. Four candidates were trained. In the category of untrained candidates, respondent No. 10 had highest marks. On 15.03.2007, a selection list was published which is as follows:- Sl No. Roster Category Selection list Dated 15.03.2007 List Dt 31.03.2007 01. 1533 Handicapped Birendra Kr Yadav Birendra Kr Yadav 02. 1535 Unreserved M/F Nawal Kishore Poddar(T) Nawal Kishore Poddar(T) 03. 1539 Unreserved M/F Suresh Mahto (T) Nageshwari Kri. Sinha (T) 3 04. 1543 Unreserved M/F Nageshwari Kri. Sinha (T) Manju Kesri (T) 05. 1537 Unreserved-F Manju Kesri (T) Pramila Kumari 06. 1541 Unreserved-F Pramila Kumari Sulekha Kumari (Tewari)* 07. 1542 EBC M/F Bhushan Kumar Singh Bhushan Kumar Singh 08. 1536 EBC F Meera Kumari Meera Kumari 09. 1538 BC – F Sulekha Kumari (Tiwari)* KUMARI MAMTA 10. 1534 SC M/F Sanjay Kumar Das Sanjay Kumar Das 11. 1540 SC - F Sulekha Kumari (Paswan) Sulekha Kumari (Paswan) In the selection list, published on 15.03.2007, at roster point 1533, Birendra Kumar Yadav was selected as handicapped candidate against unreserved post. Nawal Kishore Poddar, a trained candidate was selected in unreserved M/F category at roster point 1535. Suresh Mahto, another trained candidate was selected in unreserved M/F category at roster point 1539. Nageshwari Kumari Sinha, a trained candidate was selected, in unreserved M/F category at roster point 1543. Manju Kesri, a trained candidate was selected, against unreserved female category at roster point 1537. Pramila Kumari was selected, against unreserved female category at roster point 1541. Bhushan Kumar Singh was selected in the extremely backward category M/F at roster point 1542. Meera Kumari was selected as extremely backward female candidate at roster point 1536. Sulekha Kumari was selected as backward category female candidate at Rs 1538. Sanjay Kumar Das was selected as SC M/F candidate at roster point 1534. Sulekha Kumari (Paswan) was selected in SC female category at roster point 1540. Suresh Mahto, who was selected against unreserved M/F category at roster point 1539, did not join. All other candidates duly joined 4 on their posts on or before 30.03.2007. One post at roster point 1539 belonging to unreserved M/F category remained vacant on account of non-joining of Suresh Mahto. The controversy arose because on 31.03.2007, another meeting of Selection Committee was held in which entire selection list was reshuffled. Nageshwari Kumari Sinha who was selected against unreserved M/F category at roster point 1543, was shifted to roster point 1539 in place of Suresh Mahto. Sulekha Kumari selected against backward female category at roster point 1538, was shifted at roster point 1541. Pramila Kumari at roster point 1541, was shifted to roster point 1537 and the petitioner, Kumari Mamta was selected at roster point 1538 against backward class female category, in place of Sulekha Kumari. Due to this reshuffling, the respondent No. 10 having highest percentage of marks in untrained category, was not selected. Case of respondent No. 10 is that since vacancy occurred against unreserved M/F category at roster point 1539 on account of non- joining of Suresh Mahto, as such it should have been filled up by a candidate in the same category. Respondent No. 10 having highest percentage of marks amongst the untrained candidates should have been appointed against unreserved M/F category at roster point 1539. There was no reason for reshuffling of the candidates on 31.03.2007 by the Selection Committee in absence of two of its members, as till that date, all selected candidates had already joined on their posts and there was no vacancy, against any of the category. Respondent No. 10 has challenged the decision of Selection Committee dated 31.03.2007 by filing C. W. J. C. NO. 17808 OF 2008 for a direction to appoint him at roster point 1539 w.e.f. April, 2007. While this writ application was still pending, his representation filed before the 5 Hon’ble Chief Minister was referred to District Teachers Employment Appellate Tribunal, Khagariya which was treated as an appeal. Notices were issued to all concerned including the petitioner by the Tribunal. After hearing all the parties, impugned order dated 17.04.2009 was passed, cancelling the appointment of the petitioner. The question for determination is whether petitioner should have been appointed against roster point 1538 for the reserved backward female category or her case could have been considered for appointment against roster point 1539, in the open category. Counsel for the petitioner submits that selection list prepared on 15.03.2007, was a provisional list, as such there was no illegality, if on 31.03.2007, the Selection Committee made any reshuffling of the candidates in different category. It is also stated that none of the selected candidates had joined before 31.03.2007. They joined on 02.04.2007. Petitioner’s submission on this point cannot be accepted for the reason that in case the candidates would not have joined by 30.03.2007, there would not have been any reason for treating the post at roster point 1539 only as vacant post. The post was considered as vacant for the reason that selected candidate; Suresh Mahto did not join till 30.03.2007. Once it is accepted that all candidates joined by 30.03.2007, there is no reason for shifting of selected candidates from one roster point to another roster point. Only vacant post was at roster point 1539, which fell in unreserved M/F category. In that category, amongst the untrained candidates, respondent No. 10 had highest marks and he could only have been selected for that post. The Selection Committee has illegally prepared another list on 31.03.2007. In absence of two of its members, the Selection Committee exercised its jurisdiction which is contrary to rule 9 (vii)(([k) of District Teachers Employment (Appointment and Service 6 Conditions) Rules, 2006. The Selection Committee had done all these exercise, just to fit in Kumari Mamta, the petitioner in the backward category at roster point 1538, though on 31.03.2007 there was no vacancy against this roster. On consideration of entire material on record and the submissions of the parties, I find that the appellate court has rightly cancelled selection of the petitioner on the post of Panchayat Teacher at roster point 1538. On 31.3.2007, there was no vacancy at roster point 1538. Only vacant post was at roster point 1539 which belonged to unreserved M/F category. Against this vacancy, respondent No. 10 having highest marks, was eligible for appointment. The direction issued by the appellate tribunal is in accordance with law. This writ application is dismissed. The respondent No. 10 will be deemed to be entitled for his appointment on the post w.e.f. April, 2007. AKV/ (Mridula Mishra, J.)