IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11000 of 2009 Sushila Devi . Versus The State Of Bihar & Ors . ----------- 4. 12.08.2011 This matter was mentioned at 10.30 A.M. for adjournment on behalf of the petitioner. The Court observed that the prayer shall be considered when the matter is taken up and no adjournment was granted. When the matter is taken up no one is present on behalf of the petitioner. Any consideration of the claim in the writ petition has to bear in mind the effect, if any, that may fall on the private respondent no. 10, who has the benefit of the appellate order dated 9.3.2009 and which is the subject matter of challenge in this writ application. Since respondent no. 10 is represented by a counsel and the State is also present, the Court proceeds to take up the matter for consideration. The Court is satisfied that the writ petition is not de void of merit and has substance in it. The contest between the petitioner and the respondent no. 10 is not for a Government job seeking the status of a Government servant. The controversy is for appointment as an Anganwari Sewika, an agent of the Government. Therefore, the rigours, standard and yardstick applicable to a contest for appointment as 2 Government servant shall not be applicable. An element of discretion in exercise of powers under Article 226 of the Constitution of India shall therefore apply in considering the contractual relationship between Government as Principal and the Agent with more flexibility. If the petitioner was an applicant for the post of Anganwari Sewika aggrieved by the selection of respondent no. 10, it was for her to complain. On the contrary her husband complained and which was entertained by the District Magistrate unseating respondent no. 10. Respondent no. 10 carried it in appeal. The Commissioner without hearing the complainant or the aggrieved, ex parte allowed the appeal of respondent no. 10. Fairness would have dictated that the Commissioner should have either noticed the petitioner or her husband at whose request the original order passed was being tested in appeal. The respondents cannot take the stand as has been done in the counter affidavit of respondent no. 10 that the petitioner’s husband was not the applicant and the petitioner also was not the applicant. If that be so where was the need for the respondent No. 10 to carry the original order in appeal. Considering the nature of relationship as Principal and Agent between the parties, the Court 3 considers that a hyper technical stand cannot be urged and does not uphold the same. The Court for the present does not interfere with the appellate order in so far as the existing status of respondent no. 10 is concerned. The appellate order dated 9.3.2009 of the Commissioner is only directed to be kept in abeyance to facilitate a fresh hearing and application of mind by him. Let the Commissioner hear the petitioner and respondent no. 10, and pass a fresh reasoned and speaking order within a maximum period of two months from the date of receipt and/or presentation of a copy of this order before him. Since the order has been passed in presence of the counsel for respondent no. 10, liberty is granted to the Commissioner to proceed ex parte also, if necessary against respondent no. 10, if he opines non-cooperation by her but only after recording his full satisfaction of the efforts made to persuade her to participate notwithstanding which she did not do so that the final order is ultimately passed within the time fixed. The writ application stands disposed with directions. P. Kumar ( Navin Sinha, J.)