IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3703 of 2009 Pradeep Kumar Versus The State Of Bihar & Ors ---------------------------------- For the Petitioner : Mr. Yogendra Kumar, Advocate For the State : Mr. Mukesh Kumar, AC to GP 16 For Respondent No. 8 : Mr. Ram Sagar Singh ----------- 3. 13.10.2011 Heard learned Counsel for the petitioner, the State and for Respondent no. 8. A rather casual and perfunctory counter affidavit has been filed on behalf of official respondents through Respondent no. 2 which stops only at the fact that the petitioner had an alternative remedy of appeal before the District Magistrate under the Bihar Gram Kutchery Secretary (Employment, Service Conditions and Duties) Rules, 2007 (hereinafter referred to as ‘the Rules’). The petitioner has specifically alleged that the impugned order dated 23.12.2008 unseating his selection was in violation of the principles of natural justice in as much as no notice was issued to him by the Sub Divisional Officer exercising the powers under Rule 12 and he was not given an opportunity to defend his selection and appointment. This fact has not been denied in the counter affidavit of Respondent no. 2. If a statutory order suffers from an inherent defect for violation of the principles of natural justice, it is like a still born child which never came into existence and availability of alternative remedy is no bar to the entertainment of the writ application on that ground. A detailed counter affidavit has been filed on behalf of private Respondent no. 8. 2 Under Rule 5 as it existed in 2007 when the selection process in question commenced the only eligible educational qualification prescribed was Matriculation. The Rule came to be amended in January 2009 with effect from 31.1.2008 incorporating Madhyama as an equivalent qualification under Rule 5 for such appointment. Therefore prior to 31.1.2008 a person holding Madhyama qualification was ineligible to even apply to be considered for appointment much less be appointed. If an incompetent application was submitted prior to 31.1.2008 it could not have been entertained. The fact that it may have been illegally entertained shall not vest legality in it after 31.1.2008 where none existed originally so that such application could have been subsequently considered after 31.1.2008. If the infirmity attached to the application originally, the illegality permeates through out the process. It is not in dispute between the parties that Respondent no. 8 held a Mahayama qualification. He was therefore clearly ineligible to apply by virtue of the provisions of Rule 5 restricting the application to Matriculates like the petitioner. The illegal acceptance of the application of Respondent no. 8 in 2007 can be of no help to him in asserting that in any event the appointment has been made in 2010 in pursuance of the impugned order. It has already been discussed that the application of Respondent no. 8 initially could never have been entertained. Today if a fresh advertisement is issued and Respondent no. 8 applies in response to the same naturally he has a statutory right under Rule 5 to be considered. No further discussion is required that the impugned order is vitiated on the very face of it in so far as it grants relief to Respondent no. 8. Counsel for the State and the Respondent no. 8 sought to persuade the Court that the authority under Rule 12 had heard the petitioner also as it states that the parties had been heard. The Court 3 finds it difficult to accept the argument in view of the discussion contained in the order which makes it more than apparent that notice was issued only to the Sarpanch, the Nodal officer and the BDO. There is no discussion in the order that notice was issued to the petitioner much less validly served. It was next contended on behalf of the respondents that there is a finding that the application of the petitioner itself was incomplete. Additionally, it has been argued on behalf of Respondent no. 8 that the petitioner was not an applicant originally. It has next been submitted that the impugned order was questioned by the Sarpanch before the District Magistrate in appeal who has upheld the same. If the impugned order affects the petitioner visiting him with civil consequences, it was he who was required to be heard. The fact that others may have been heard shall not substitute for hearing him. For similar reason, what may have happened in appeal preferred by the Sarpanch is hardly relevant for the petitioner. No further discussion is required that the impugned order is unsustainable in so far as the petitioner is concerned being in violation of the principles of natural justice. But the Court is equally satisfied that if issues have been raised that the petitioner was not an applicant or that his application was incomplete opportunity has to be granted to the respondents to proceed to hold a proper enquiry on that aspect with due opportunity to the petitioner. Nothing in the present order shall be deemed or construed as restraining the official respondents from holding any enquiry on the legality of the appointment of the petitioner on any ground in accordance with law. Learned Counsel for the respondent no. 8 has additionally rightly urged with reference to Section 92 of the Panchayati Raj Act read with Rule 8 that if the tenure of the Gram Kutchery has expired 4 and the extended tenure of six months after the same to facilitate constitution of a fresh Gram Kutchery and appointment of the petitioner has also expired, the writ application has become wholly incompetent as even if the petitioner succeeds no direction for reinstatement can be granted. The impugned order dated 23.12.2008 is set aside. The application is allowed to the extent indicated with the observations and directions. Snkumar/- (Navin Sinha,J.)