IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4667 of 2010 1. SANGEETA KUMARI W/O RAMESH KUMAR R/O VILL. AND P.O. DESARI, P.S. DESARI IN THE DISTRICT OF VAISHALI Versus 1. THE STATE OF BIHAR THROUGH PRINCIPAL SECRETARY, WELFARE DEPARTMENT, GOVT. OF BIHAR, PATNA 2. THE DIVISIONAL COMMISSIONER, TIRHUT DIVISION, MUZAFFARPUR 3. THE DISTRICT MAGISTRATE, VAISHALI, HAJIPUR 4. THE DISTRICT PROGRAMME OFFICER, VAISHALI, HAJIPUR 5. THE CHILD DEVELOPMENT PROJECT OFFICER, DESRI, VAISHALI 6. THE MUKHIYA, GRAM PANCHAYAT RAJ DESRI, DESRI BLOCK IN THE DISTRICT OF VAISHALI 7. THE PANCHAYAT SECRETARY, GRAM PANCHAYAT RAJ DESRI, DESRI BLOCK IN THE DISTRICT OF VAISHALI 8. SMT. URMILA KUMARI W/O ARUN KUMAR CHOUDHARY R/O VILL. DESRI P.O. DESRI, P.S. DESRI IN THE DISTRICT OF VAISHALI ----------- For the petitioner:- Mr. Shivaji Pandey, Sr. Advocate & Mr. Rajoday Satyjeet, Advocate For the State:- Mr. Binay Kr. Pandey, A.C. to S.C.-VII For the Respondent No.8:- Mr. Awadhesh Kr. Singh, Advocate ----------- 02. 02.11.2010 Heard learned counsel for the petitioner, State and Private respondent no.8 who has appeared suo motu. The petitioner is aggrieved by the order of the Commissioner, Tirhut Division dated 19.1.2008 in Service Appeal No. 179 of 2009 preferred by respondent no.8. It upsets the order of the District Magistrate dated 31.6.2009 passed in Case No.118 of 2008-09 preferred by the petitioner. The petitioner belongs to the Extremely 2 Backward Class category, while respondent no. 8 belongs to the Scheduled Caste. The controversy relates to the appointment on the post of Anganbari Sewika in the Desri panchayat. In the Aam Sabha, held on 30.3.2007, respondent no.8 came to be appointed. The petitioner questioned the same in Case No. 118 of 2008-09. It was asserted that the petitioner belonged to the Dominant Caste in the captive area and therefore she alone was eligible to be considered for appointment. Respondent no.8 raised an objection that though the petitioner had signed the attendance register on the date of Aam Sabha, she was not present and therefore was not selected. The District Magistrate did not decide this issue and proceeded on the premise that the petitioner belonged to the Dominant Caste. In Appeal the Commissioner held that, if the petitioner had singed the attendance register on the date of Aam Sabha, there was no justification for her, not raising the issue for nearly one year, arriving at the conclusion that her signature was put in the register subsequently. A supplementary affidavit is filed today on behalf of the petitioner. It is submitted from Annexure- 9 to the supplementary affidavit that the petitioner had 3 represented before the C.D.P.O. on 30.8.2007 itself as evident from an endorsement in the left in the column of the representation. It is however fairly conceded that there is no material to demonstrate that this representation was either placed in Case No. 118 of 2008-09 by the petitioner before the District Magistrate or that it was placed by her on record in her reply to the appeal preferred by respondent no.8 before the Commissioner. It is next submitted that there was no mandatory condition requiring the physical presence of the candidate at the Aam Sabha. Reliance is further placed on a fresh guidelines published in 2010 for selection stating that absence during the Aam sabha could not be a ground to reject the application. It was lastly submitted that there was no limitation prescribed in the guidelines of 2006 for preferring any objection within one year. Learned counsel for the State and Private respondent no. 8 opposing the application submitted that, if the petitioner acknowledges not having placed relevant materials before the authorities concerned that shall be sufficient justification for the Court not to interfere. Appointment on the post of an Anganbari Sewika is not an appointment on a Government post. 4 They are appointed as Agents for execution of a welfare scheme on behalf of the Government. The standards which shall be applicable to appointment on a Government post which may be governed by statutory rules and regulations, shall not be the same as applicable to appointment of Agents of the Government. A certain amount of flexibility within the limits of the Constitution shall have to be permitted to the Principal for appointment of Agents. All that the Court will examine is whether the procedure was fair, the guidelines have been followed, eligibility considered and selection made according to fair play. If these broad parameters are fulfilled, there may be no justification for a Court to interfere. The controversy in the present case relates to counselling held on 30.3.2007. Therefore the regulations framed in the year 2006 shall hold the field. The reliance of any subsequent regulations of 2010 stipulating that the application could not be rejected for reasons of absence of applicant shall be of no avail to the petitioner. The regulations in 2006 in Clause-6 (xi) stipulates that upon pronouncement of the eligible by the Aam Sabha, if a person is aggrieved she may file her representation. Quite naturally, in absence of any exclusionary clause as contained in 5 2010 regulations, the applicant was required to be present. Only then could an objection have been filed co-terminus to selection by the Aam Sabha. The submission that the petitioner had filed a representation before the C.D.P.O. on 30.8.2007 does not impress the Court for the simple reason that the order of the District Magistrate explicitly states that a report had been called from the C.D.P.O. and the records had been perused. Yet the District Magistrate, noticing the objection of respondent no.8 that the petitioner was not present and only her signature was present on the register, does not decide this issue. Surely, if the representation of the petitioner had been submitted before the C.D.P.O. on 30.8.2007, the C.D.P.O. would have mentioned the same in its report. If he did not, the District Magistrate on perusal of the original records would surely have noticed the same. The presumption therefore shall be that there was no representation of the petitioner dated 30.8.2007 ever submitted and available on the records. The petitioner in the present proceedings has very fairly acknowledged that the representation dated 30.8.2007 was never placed by her in her appeal before the Commissioner. It shall not be the 6 jurisdiction of the Court to interfere with the order of the Commissioner on materials not placed before him. If the petitioner was seeking to rely upon the representation dated 30.8.2007 it was for her to place the same before the Commissioner. No error can be found with the order of the Commissioner in arriving at the conclusion that her signature on the register, in the facts, appears to an after thought, supported by the reasoning that she had preferred the objection nearly a year later. Could it be said that the reasoning of the Commissioner was arbitrary devoid of logic. The answer is in the negative. This Court arrives at the conclusion that the order of the Commissioner being reasoned, the reasoning not being absurd or illogical, there is no occasion for the Court to interfere. The last issue for consideration is the submission that there was no limitation for one year prescribed for filing objection. If an agent had been selected in the mean time and the Government had allocated duties to that agent indicating the manner in which the principal desired the welfare scheme to be conducted, quite naturally the Agent acquires expertise and the Government is sanguine to the execution of the scheme. The Agent is also sanguine that she has acquired the agency in accordance with law. If the 7 petitioner wishes to disturb this finding, it was her to act with promptness. Applying the analogy of service jurisprudence delay becomes vital. A belated interference would disturb the efficiency of the welfare scheme by a person who has acquired expertise. A third party right created and enforced by delay would be disturbed. The welfare scheme would be impeded by a fresh appointment requiring acquisition of expertise by the new incumbent. The submission on behalf of the petitioner that the issue of delay was never urged by the respondent no.8 before the District Magistrate or the Commissioner does not appeal to the Court. It is the solemn duty of the Court or the quasi judicial authority to apply the correct proposition of law whether it had been raised by the parties or not. In any event, the reasoning of limitation given by the Commissioner remains open to the authorities to raise suo motu. The application is dismissed. P.K. ( Navin Sinha, J.)