IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8676 of 2010 1. Manoranjan Kumar S/O Sri Baleshwar Singh R/O Vill.- Shilao, P.O., P.S. Shilao, Distt.- Nalanda Versus 1. The State Of Bihar Through The Chief Secretary, Govt. Of Bihar, Patna 2. Director General Cum Commandant General, Home Guard And Firebrigade Services Bihar, Patna 3. District Magistrate, Nalanda At Biharsharif 4. Superintendent Of Police, Nalanda At Biharsharif 5. District Commandant, Home Guard, Nalanda At Biharsharif 6. District Welfare Officer, Nalanda At Biharsharif ----------- For the Petitioner: Mr. Ram Hriday Prasad, Advocate For the State : Mr. M. Nasrul Huda Khan, SC 18 with Mr. Md. Irshad, AC to SC 18 --------- 2. 24.06.2011 Heard learned Counsel for the petitioner and the learned Counsel for the State. The petitioner is stated to be an applicant for the post of Home Guard in the District of Nalanda under an Advertisement. The advertisement provided for specified separate vacancies in the town area and in the rural area. The status of the applicant was to be determined on basis of his residence whether he resided in the town area or in the rural area. The petitioner is stated to have applied from the town area mentioning in his application that he was a resident of Silao Nagar Parishad, Ward No. 6. One Bihari Lal, son of Hardeo Prasad and Sunny Kumar, son of Late Bhola Singh were also applicant for the post of Home Guard in the district of Nalanda. The petitioner is aggrieved by the denial of appointment to him in the town area giving preference to the other two candidates. There were only two seats for the general category in the town area and two seats in the reserved category. The petitioner is an applicant in the general category. Sunny Kumar also appears to be an applicant from the general category while Bihari Lal belonging to the reserved category is stated to have been appointed on the general category vacancy. 2 Learned Counsel for the petitioner submits that Sunny Kumar and Bihari Lal were not applicants from the town area but had mentioned in their application that they were residents of Village Nepura, P.S. Silao and Village Ram Nagar, P.S. Silao. Learned Counsel for the State submits that both Sunny Kumar and Bihari Lal had submitted residence certificates mentioning that they were residents of Nepura in Ward No. 4 and Ram Nagar, Ward No. 3. In their application they had mentioned the words ‘Silao Town’ at the top in the name of Block. In some cases residents of town area had inadvertently dropped their applications in the box meant for applications for the rural area. No sooner that the defect was noticed the application has been placed in the proper category. If Sunny Kumar and Bihari Lal were applicants from the town area in the general category, having more marks than the petitioner, no fault can be found with their appointment in the town area. But if they were not applicants from the town area the vacancy naturally should go to the petitioner in absence of any other successful claimant. Whether a particular geographical area falls in the town area or in the rural area is a question of fact. The application of the petitioner clearly states that he was resident of Silao Nagar Parishad Ward no. 6. That takes it beyond the pale of any controversy that he was an applicant from the town area. The column at the top of the application with regard to the name of the Block simply mentions Silao. Likewise the application of Sunny Kumar and Bihari Lal mentioned that they were residents of Village Nepura and Ram Nagar under block Silao. They have undoubtedly annexed a certificate issued from the office of District Magistrate and the S.D.O. that Nepura was in Ward No. 4 and Ram Nagar in Ward No. 3. Perhaps, if the State respondents had only been a little more careful in their duty to assist this Court by filing a 3 proper counter affidavit and had made a specific statement of fact that Nepura and Ram Nagar were within the Nagar Parishad or falling in the specified Ward the entire controversy could have been brought to an end today itself. The litigation continues only because the respondents have not been careful in filing their counter affidavit. It is apparent from the original application of Sri Sunny Kumar and Bihari Lal that in the column for name of the Block they had also originally written Silao only. It is apparent to the naked eye that the word ‘town’ has been inserted subsequently in a different handwriting and in a different pen in a crammed manner due to lack of space. It only needs to be noticed that earlier the Court had called for the original application. If Nepura and Ram Nagar were in a town area there was no occasion for the words ‘town’ to be inserted at the top of the application in the description of block. At this stage learned Counsel for the State submits that the matter may be referred to the Commissioner of the Division who shall examine whether Nepura and Ram Nagar fall in the town area or not from the concerned municipal records. Let the petitioner appear before the Commissioner along with a copy of the present order. The Commissioner shall grant a hearing to the petitioner and call for necessary information from the concerned authorities and satisfy himself whether Nepura and Ram Nagar fall in the town area or not. If he is satisfied that both fall in the town area he shall pass a reasoned and speaking order and dispose off the matter accordingly within a maximum period of six weeks from the date of receipt and/or production of a copy of this order before him. If the Commissioner is satisfied that they does not fall in the town area, he shall then issue notice to Sunny Kumar and Bihari Lal, grant a personal hearing in presence of each other both to the petitioner 4 and Sunny Kumar/Bihari Lal and then pass a reasoned and speaking order within a maximum period of two months from the date of such satisfaction. The matter shall abide by the order of the Commissioner. It shall be open for the petitioner to raise other contentions with regard to availability of vacancy and upon which he can be accommodated. It shall also be open for the petitioner to satisfy the Commissioner that Bihari Lal was not competent to be appointed against the general category post being an applicant from the reserved category. The writ application stands disposed with the aforesaid directions. Snkumar/- (Navin Sinha,J.)