IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4059 of 2007 SUNITA DEVI Wife of Ranjeet Kumar Resident of Village Darigaon, P.O. Darigaon, P.S.Sasaram, District Rohtas. Versus 1. THE STATE OF BIHAR 2. The District Magistrate, Rohtas at Sasaram. 3. The District Superintendent of Education, Rohtas at Sasaram. 4. The Mukhiya, Gram Panchayat, Darigao, P.S.Sasaram, District Rohtas. 5. Panchayat Secretary, Darigaon Panchayat, P.O. Darigaon, District Rohtas. 6. Tarun Kanti Devi Wife of Anil Bhaskar, Resident of Village Bhutti, P.O. Darigaon, P.S. Sasaram, District Rohtas. ----------- 2 04.10.2010 Having heard counsel for the petitioner, counsel for the State as also counsel for respondent no.6 as with regard to the following relief:- “That the petitioner craves indulgence of this Hon’ble Court for issuance of an appropriate writ in the nature of mandamus commanding the respondents to appoint her on the post of Panchayat Teacher in Darigaon Gram Panchayat after cancelling the illegal appointment of Respondent no.6 who secured only 471 aggregate marks in intermediate examination where as the petitioner secured 489 marks out of 900 in Intermediate examination.” this Court is of the opinion that the issue involved in this case is very simple, inasmuch as, if respondent no.6 and the petitioner belonging to the same category, i.e. Scheduled Caste were applicants for the same post and the petitioner has obtained higher marks than the Respondent no.6 it was she who should have been appointed. To that extent petitioner’s case in paragraph 10 of the writ application which reads as follows:- “That Respondent no. 4 and 5 came in collusion with respondent no. 6 and with an evil design to favour respondent no.6, they neither sent any information to the petitioner for counseling nor 2 published any date of counseling on the notice board of Darigaon Gram Panchayat although the petitioner secured more marks in Intermediate examination than respondent no.6 as such the petitioner was more deserving than respondent no.6 and she was entitled for her appointment on the post of Panchayat teacher but respondent no.4 and 5 dominated the entire proceedings and appointed respondent no.6 illegally and arbitrarily in a very secret manner.” has not been specifically controverted in the counter affidavit filed on behalf of the official respondents. The reliance placed by the learned counsel for the State either on the statement contained in paragraph nos. 11 and 14 of the counter affidavit, copy whereof has been served on the counsel for the petitioner only today in the court room with reference to the order of the Block Development Officer dated 18.5.2007 passed after filing of this writ application on 30.3.2007 will have no bearing on the issue, inasmuch as, the crucial document on the basis of which it can be said that the petitioner was given notice and/or no information as with regard to appearance for counseling while paving way for appointment of respondent no.6 who had admittedly lesser marks than the petitioner. Respondent no.6 having also not filed her counter affidavit is not in a position to defend her appointment and therefore this Court would prima-facie find merit in the case of the petitioner that though she had secured higher marks to respondent no.6 and yet she was ignored in her selection and appointment on the post of Panchayat Shikshak. This Court, however, would agree with the joint prayer made by counsel for the petitioner and 3 counsel for respondent no.6 that the matter should be remitted back to the District Teachers Appellate Authority of Rohtas district for finding out as to whether the plea of the respondents of the petitioner not appearing in the counseling despite observance with the procedure for selection and appointment on the post of Panchayat Shikshak was correct. This Court must note that the counsel for the respondent no.6 had orally tried to justify appointment of respondent no.6 by taking a plea that the petitioner was residing at Bokaro and therefore when the notice was issued by the Gram Panchayat for counseling to be held in between 8.1.2007 to 11.1.2007 she was not present in the village and as such the respondent no.6 being the next candidate was selected and appointed on the post of Panchayat Shikshak. All these aspects, therefore, need to be adjudicated by the statutory body, namely, the District Teachers Appellate Authority, Rohtas, who having called for the original records from the concerned authorities and after giving an opportunity of personal hearing to the petitioner and respondent no.6, will pass its order as expeditiously as possible but in no event later than three months from the date of receipt/production of a copy of this order before the District Teachers Appellate Authority, Rohtas. It is, however, made clear that if the respondent no.6 does not cooperate in the said proceeding before the District Teachers Appellate Authority, an order on the basis of materials 4 on record shall be passed without giving any further indulgence to the respondent no.6. This Court would, accordingly, direct both the petitioner and respondent no.6 to appear before the said authority on 25th October, 2010, whereafter the period of three months for disposal of the case of the petitioner shall commence. As the matter is being remitted back to the statutory authority for its decision on all the questions on merit, nothing said in this order shall adversely affect the case of any of the parties. With the aforementioned observations and directions this application is disposed of. Abhay Kumar ( Mihir Kumar Jha, J.)