IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.970 of 2009 ====================================================== Rajesh Kumar Mishra, Son of Vidyanath Mishra, resident of Village – Paras Pakri, Police Station – Majhaulia, District – West Champaran. .... .... Petitioner. Versus 1. The State of Bihar. 2. The Collector, West Champaran at Bettiah. 3. The Sub-divisional Officer, Bettiah Sadar, District –West Champaran. 4. The Block Development Officer, Nautan Block, District –West Champaran 5. The Block Education Extension Officer, Nautan Block, District –West Champaran 6. The Panchayat Secretary, Jamunia Panchayat, District –West Champaran 7. The Panchayat Shikshak Niyojan Samitee through its Chairman, Mukhiya Jamunia Gram Panchayat Anchal Nautan, District – West Champaran. 8. Amitl Kumar Dubey, Son of Balram Dubey, resident of Village – Jhakra, P.S. Nautan, District –West Champaran 9. Srikant Prasad, S/o Surendra Prasad, resident of village – P.O. Majharia Kishun, P.S. Nautan, District –West Champaran .... .... Respondents. ====================================================== Appearance : For the Petitioner/s : Mr. Siya Ram Shahi, Advocate For the Respondents 8 & 9 : Mr. Grijesh Kumar, Advocate For Respondent No. 7 : Mr. Vikas Kumar, Advocate ====================================================== CORAM: HONOURABLE JUSTICE SMT. MRIDULA MISHRA ORAL ORDER (Per: HONOURABLE JUSTICE SMT. MRIDULA MISHRA) 05/ 12-09-2011 Heard counsel for the petitioner, the State and the counsels representing private respondents 7, 8 and 9. Respondent No. 7 is the Selection Committee under the Chairmanship of Mukhiya, Gram Panchayat, Jamuniya. Respondent Nos. 8 and 9 are two selected candidates appointed against the vacancies which accrued on account of resignation of Patna High Court CWJC No.970 of 2009 (5) dt.12-09-2011 2 / 6 2 two selected teachers in general category. Facts of the case as revealed in the pleading of the parties is that in Jamuniya Gram Panchayat under Nautan Anchal process for appointment on the post of Panchayat Teacher was initiated and almost complete. However, two selected candidates in the general category resigned and the Selection Committee in its meeting decided to fill up those posts from the candidates in the panel. Name of petitioner Rajesh Kumar Mishra and Amit Kumar Dubey, Respondent No. 8 is there in the panel of general category candidate at serial no. 12 and 15. So far respondent no. 9 Srikant Prasad is concerned, he has shown in the panel of reserved category candidate having higher percentage of marks than the petitioner. Initially for one vacancy six persons were informed fixing the date of counselling on 13.7.2008 through notice under UPC but no one appeared. In the meantime, one more vacancy occurred on account of resignation of another selected candidate, as such some persons from general category panel and Srikant Prasad from reserved category having higher marks total eight candidates were informed for participating in counselling through under postal certificate (UPC). Notice was issued on 20.11.2007 and the date of the counselling on 25.11.2007. From the proceedings of the Selection Committee annexed with the writ Patna High Court CWJC No.970 of 2009 (5) dt.12-09-2011 3 / 6 3 application, it is obvious that only two candidates Amit Kumar Dubey and Srikant Prasad appeared for counselling and they were selected, appointment letters issued in their favour. Petitioner, whose percentage of marks is higher than Amit Kumar Dubey (Respondent No. 8), when came to know about his selection filed his objection before the Block Development Officer on 17.4.2008. Since, there was no response he filed objection in the Janta Darbar of the District Magistrate. The objection was referred to the Block Development Officer. Petitioner’s case is that considering the objection of the petitioner with regard to dispatch of noting under UPC it was the finding that selection was not done properly. However, no steps were taken as such petitioner filed this writ application, which was still pending before this Court, when he also filed an appeal before the District Teachers Employment Appellate Tribunal vide Appeal No. 90 of 2009. The Appellate Tribunal gave opportunity of hearing to all the parties and also examined and enquired from Sub-post office, Jagdishpur on the point whether UPC were dispatched correctly with stamp of Jagdishpur Sub-post office for intimating about the date of counselling to the candidates. The finding recorded in the Appellate Tribunal’s order is that it was duly dispatched with the stamp of Jagdishpur Sub-post office. This Patna High Court CWJC No.970 of 2009 (5) dt.12-09-2011 4 / 6 4 finding has been recorded by the Appellate Tribunal that Srikant Prasad was delivered notice sent through UPC. With regard to finding recorded by the Block Development Officer the opinion of Tribunal is that without examining any connected record or any person of the Sub-post office, merely this presumption has been recorded by the B.D.O., which is not proper. Counsel for the petitioner submits that this has been the practice in all of Bihar and India in the matters of appointment or for sending any kind of notice to any one to send the intimation through the registered post which is more reliable and on which dependence can be placed by each of the parties. So far sending intimation or notice through UPC is concerned, there are sufficient opportunities for misusing this process and it is a fraudulent mode for dispatching notices. In support of his contention the counsel has placed reliance on a decision reported in 2010(4) P.L.J.R. 1835. On perusal of this judgment I find that it is mere an observation then a finding against selecting UPC as a mode for dispatching intimating or notice. On the other hand, the counsel representing Respondents 8 and 9 has submitted that UPC was selected as one of the mode in view of the direction of the District Magistrate, who has specifically directed for sending notice to the candidates Patna High Court CWJC No.970 of 2009 (5) dt.12-09-2011 5 / 6 5 for participating in the counselling either through registered post or UPC. In view of the submissions made by the parties and also this fact that initially six persons were sent notice through UPC, none of them participated in the counselling fixed on 13.7.2007. No one of them has either raised any objection that without intimating them the vacancies was filled, ignoring their higher percentage of marks. Subsequently, eight persons were sent notice, out of them except petitioner no other candidate has raised such objection. Since, there is no sufficient evidence to show that under the genuine stamp of Jagdishpur Sub-post office on a particular date UPC were dispatched. If, for any reason petitioner has not been able to receive this notice, it cannot be said that intentionally there was no intimation for participating in the counselling, ignoring his higher percentage of marks. The counselling date was fixed. If no other candidate than the two candidates who were selected, appointed, participated in the counselling, their appointments cannot be cancelled on this count that some of the candidates could not receive intimation prior to the date of the counselling. I also find that petitioner has been late in raising objection as the appointment process was completed on 26.11.2007, for the first time as per his own admission he raised Patna High Court CWJC No.970 of 2009 (5) dt.12-09-2011 6 / 6 6 objection on 17.4.2008 by filing an application before Block Development Officer. The appointment process, which had initiated in 2007 and completed in the end of 2007, cannot be re- opened in the mid of 2011 for a reason, which has not been proved satisfactorily. I do not find any merit in this application, it is dismissed. DKS/ (Mridula Mishra, J)