Letters Patent Appeal No.576 of 2006 ---------- Against the order dated 31-7-2006 passed by learned Single Judge in CWJC no. 1792/2005 --- ------- 1. The Bihar Public Service Commission through its Chairman 2. The Secretary, Bihar Public Service Commission, Patna 3. The Deputy Secretary, Bihar Public Service Commission, Patna 4. Controller of Examination, Bihar Public Service Commission, Patna …………………… Appellants Versus 1.SANJIV KUMAR CHANDHARIYAVI, son of Nawal Kishore Prasad, Resident of Mohalla- Kagazi Town, Biharsharif, P.S Biharsharif, District, Nalanda 2. The State of Bihar 3. The Secretary, Personnel and Administrative Reforms Department, Govt. of Bihar, Patna -----------------Respondents For the appellants: Mr. Kumar Brajendra Natha, Advocate For the State : Mr. S. K. Ghosh, AAG 2 For the respondent no.1: Mr. S.D. Sanjay, Advocate P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE DHARNIDHAR JHA ------------------------ Shiva Kirti Singh & Dharnidhar Jha, JJ Heard learned counsel for the appellants, Bihar Public Service Commission (hereinafter referred to as the Commission), learned counsel for the respondent no.1 and learned counsel for the State. The judgement and order under appeal dated 31-7-2006 whereby CWJC no. 1792/2005 has been allowed proceeds on the basis that Bihar Public Service Commission received some complaint as regards the impersonation by the writ petitioner in the 25th Bihar Judicial Service Officers Examination and although, according to the - 2 - writ court, it was duty of the Commission to conduct enquiry on the basis of such complaint, the Commission acted in a different manner and cancelled the candidature of the writ petitioner only on the basis of complaint. Learned counsel for the appellants has taken us through the counter affidavit filed by the Commission in reply to the writ petition. That counter affidavit in paragraph six and onwards has given full details as to the action taken by the Commission for enquiry into complaint alleging impersonation in place of the petitioner in the said examination. According to counter affidavit pursuant to first notice dated 9-4-2001 (annexure-6 to the writ petition), the writ petitioner appeared before the Deputy Secretary of the Commission on 19-4- 2001 but expressed his inability to write anything by way of providing his specimen handwriting on the plea that he had met with an accident and his right hand was injured. It is further case of the Commission that on a fresh notice dated 2-3-2002 giving last chance to the writ petitioner to appear, the writ petitioner did not turn up. This forced the Commission to publish a notice in the newspapers on 8-6-2002 asking the writ petitioner and one another candidate to appear in the Commission for enquiry along with all the relevant documents. Again writ petitioner did not appear and filed a writ petition bearing CWJC no. 7224/2002 which was disposed of 10-7-02 with a direction to the petitioner to appear before the Controller of Examination on 11-7-02 along with all the relevant papers and certificates. Thereafter the averments in paragraphs 11 and 12 supported - 3 - by the letters dated 11-7-02 (annexure-D) and 2-8-02 (annexure-E) disclose that writ petitioner appeared in the office of the Commission along with some advocates but on being asked to write two pages in his handwriting he declined on the plea that he could do so only after taking permission from his father. Inspite of further notice through letter dated 2-8-02 (annexure-E) the writ petitioner did not appear and on such conduct of the writ petitioner and his determined non co- operation in the enquiry by not providing specimen of his handwriting the Commission accepted the allegation in the complaint and cancelled his candidature. Those materials in the counter affidavit were refuted by learned counsel for the respondent no.1 (writ petitioner). It was submitted by him that the facts stated in the counter affidavit and in the last communication thereto are not correct and a false allegation has been made that writ petitioner was asked to and did not give his specimen handwriting. In the writ petition there is no allegation of malafide against any officials of the Commission and the facts in the counter affidavit show that Commission had proceeded to conduct the enquiry. These relevant facts mentioned in the counter affidavit escaped the attention of the learned writ court and clearly on that account the writ petition was allowed with a direction to publish the result of the writ petitioner and to recommend his name for appointment if persons obtaining lesser marks had been recommended. In view of aforesaid discussion, We find no option but to - 4 - remand the matter back to the writ court for fresh consideration after noticing the relevant facts and hearing the parties. As a result the order under appeal is set aside and the appeal is allowed to the aforesaid extent. In the facts of the case, there shall be no order as to costs. Patna High Court The 23rd March,09 NAFR/BKS (Shiva Kirti Singh,J.) (Dharnidhar Jha, J.)