IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7568 of 2009 SANGITA KUMARI, WIFE OF SRI AKHILESH KUMAR, DAUGHTER OF SRI SITARAM SAH, RESIDENT OF VILLAGE DOSTIYA, P.S. SONBARSA, DISTRICT – SITAMARHI. ……… PETITIONER. Versus 1. THE STATE OF BIHAR. 2. BLOCK DEVELOPMENT OFFICER, SONBARSA, SITAMARHI. 3. BLOCK EDUCATION EXTENSION OFFICER, SONBARSA, SITAMARHI. 4. SUB-DIVISIONAL OFFICER, SITAMARHI. 5. ZILA SHIKSHAK NIYOJAN PRADHIKAR, SITAMARHI. 6. SELECTION COMMITTEE THROUGH SECRETARY GRAM PANCHAYAT GONAHI BISHANPUR BLOCK SONBARSA, DISTRICT – SITAMARHI. 7. BINDOO PRASAD, SON OF NOT KNOWN, MUKHIYA, GRAM PANCHAYAT GONAHI BISHANPUR, BLOCK SONBARSA, DISTRICT – SITAMARHI. 8. PRATIBHA KUMARI, W/O SRI VIMLESH KUMAR, RESIDENT OF VILLAGE KOAADI, BLOCK BATHNAHA, DISTRICT – SITAMARHI. 9. SMT. URMILA KUMARI, D/O NOT KNOWN, HEAD MISTRESS NAVSRIJJIT PRATHMIK VIDYALAYA, BISHANPUR GONAHI, P.S. SONBARSA, DISTRICT – SITAMARHI. 10. DISTRICT MAGISTRATE, SITAMARHI. 11. DISTRICT SUPERINTENDENT OF EDUCATION, SITAMARHI. ….. RESPONDENTS. For the Petitioner : - Mrs. Namrata Mishra, Advocate For the State : - Mr. Rajesh Kumar, G.P. 8 For Respondent no. 8 : - Mr. Jagnnath Singh, Advocate. ----------- 03/ 25.03.2010 Heard counsel for the petitioner, the State and counsel appearing for Respondent no. 8. Petitioner’s prayer is for quashing of the order dated 24.6.2009 passed by the District Teachers Employment Appellate Tribunal, Sitamarhi, whereby appointment of the petitioner on the post of Panchayat teacher has been cancelled and a direction has been issued - 2 - to appoint respondent no. 8 against unreserved female category post. For appointment against nine posts of Panchayat Teachers, applications were invited, by Gram Panchayat Bishanpur Gonahi. Roaster allotted to this Gram Panchayat, for appointment was in between 86 to 94. Petitioner Sangita Kumari, had applied against reserved backward candidate (Female) post with 64.60% of marks. Respondent No. 8 had applied against unreserved (Female) post with 65.66% marks. The petitioner, though applied against reserved category post, was appointed against unreserved female category post, considering the fact that she had marks higher than the candidate in unreserved category. The case of respondent no. 8 is that she had 65.66% of marks, higher than the petitioner Sangita Kumari, but the members of Selection Committee committed illegality by not sending her any intimation, for participating in the counselling. Only on account of her absence, the petitioner got appointed, against unreserved female category post. On perusals of the order passed by the Appellate Tribunal, it transpires that the appointment of petitioner was - 3 - initially challenged by respondent no. 8 by filing application before the Collector, Sitamarhi. The Collector, Sitamarhi directed the S.D.O. for conducting an enquiry. The S.D.O. in turn directed the B.D.O. to conduct an enquiry, who conducted an ex-parte enquiry and submitted his report before the District Magistrate. The District Magistrate, thereafter directed to take proper action on the basis of report, by way of cancelling the appointment of the petitioner and appointing respondent no. 8. This order was challenged by the petitioner in C.W.J.C. No. 3030 of 2009, which was disposed of giving direction to the petitioner to move before the Appellate Tribunal. The District Teachers Appointment Appellate Tribunal was directed to pass order, after hearing all concerned, including the petitioner, respondent no. 8 and the members of the Selection Committee i.e. Mukhiya and Panchayat Secretary. It seems that the Appellate Tribunal without calling for the connected records of Selection Process passed the impugned order, placing reliance on the ex-parte report submitted by the Block Development Officer. Admittedly, the Block Development Officer had conducted enquiry in absence of - 4 - the petitioner, on the direction of the District Magistrate. The respondent no. 8 has annexed several documents in support of her claim, that since the date of appointment of petitioner she had been continuously agitating the matter, for correcting the illegality committed in the appointment. Annexure-R/5 is the letter issued from the Gram Panchayat Office dated 16.8.2008 contained in letter no. 70, issued in response to the querry made by the B.D.O. From this letter, it transpires that a proper intimation had been issued to the respondent no. 8 for participating in the counselling, in between 14.2.2007 to 15.2.2007. Since respondent no. 8 did not respond, as such the next candidate having higher marks, being the petitioner was appointed. Several candidates have also been appointed in the same manner on the basis of intimation sent to them in a similar way. I do not find any reason for doubting the intimation given to respondent no. 8. The Block Development Officer in his report submitted to the District Magistrate has given one reason for finding that the appointment had been made illegal, and the reason is that one of the members of the Appointment Committee, namely, Gajadhar Thakur has - 5 - given in writing that no information was given to him about the selection proceeding. He also denied the genuineness of his signature on the panel of selected candidates. In case of such disclosure by one of the member of Selection Committee, it was essential that signature of Gajadhar Thakur should have been verified by sending it to the handwriting expert, entire finding in the report of the B.D.O. is based on presumption and the Appellate Tribunal has recorded its finding, on the basis of the report submitted by the Block Development Officer. So far appointment of petitioner against unreserved female post is concerned, there is no illegality, and a reserved category candidate, having higher marks can be appointed against unreserved post. In this case, in absence of respondent no. 8, petitioner having highest marks, even though applied against the reserved category post, was rightly appointed against unreserved female post, considering her higher marks. The counsel for the petitioner has further submitted that there was no need for the petitioner to participate in any conspiracy, for her appointment. She would have been - 6 - appointed, against the post reserved for backward female, having highest marks. Considering her marks she would have been appointed against roaster point 90 i.e. the post reserved for backward category (Female) candidate. On consideration of entire facts and the pleadings as well as the submission of counsels for the parties, I do not find any reason to uphold the finding recorded by the Appellate Tribunal. The Appellate Tribunal has passed the order without any application of mind, rather it is totally based on the report of the Block Development Officer. The enquiry report submitted by the B.D.O. was an ex-parte report. Impugned order can not held to be just, proper and legal. Petitioner is working on the post since 2006 and there is no sufficient material for cancelling her appointment. Accordingly, the order passed by the Appellate Tribunal, Sitamarhi dated 24.6.2009 is quashed. This application is allowed. DKS/ (Mridula Mishra, J.)