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2013 DIGILAW 1103 (PAT)

Mamta Kumari v. State of Bihar

2013-09-10

SHAILESH KUMAR SINHA

body2013
ORDER Both the above writ applications arise out of common order dated 09.03.2011 passed by the District Teachers Employment Appellate Authority, Jamui as contained in Annexure-1. In the said order inadvertently the Appeal No. is mentioned as “45 of 2010” instead of “256 of 2010” vide correction slip as per Memo no. 77 dated 16.07.2013 as contained in Annexure-6 to the rejoinder to the counter affidavit filed by respondent no. 10 in CWJC NO. 1133 of 2012. 2. Writ petitioner-Mamta Kumari is aggrieved by the impugned order whereby her appointment as Panchayat Teacher is cancelled with direction to consider the appointment of respondent no. 10, Poonam Kumari who filed writ petition vide CWJC No. 1133 of 2012 for giving effect to the impugned order. 3. It is submitted on behalf of the writ petitioner-Mamta Kumari that her appointment was cancelled on the ground that respondent-Poonam Kumari had secured higher marks in the qualifying examination and also on the ground that she made her application for appointment after the counseling held on 27th January, 2009. It has been contended that respondent-Poonam Kumari did not appear in the counseling on the aforesaid date as she was appearing in the counseling in another Gram Panchayat namely Maura. The fact that she appeared in the counseling in Maura Gram Panchayat is not in dispute, and as such, even though respondent-Poonam Kumari secured higher marks than petitioner but as she did not appear in the counseling she was not selected and petitioner had appeared in the counseling and as such she was selected. The ground that she made her application after counseling is equally incorrect which would be evident on perusal of the acknowledgement receipt of her application on 11th November, 2008 (Annexure-7), and as such, holding the appointment of the petitioner as illegal is unjustified in law. 4. Learned counsel appearing for the respondent no. 12 submits that the stand of concerned Mukhiya that respondent-Poonam Kumari did not appear in the counseling is not correct in view of the statement of one of the member of the Employing Unit namely, Sanju Devi. The fact that marks obtained by respondent-Poonam Kumari is higher than the petitioner-Mamta Kumari is not in dispute. 12 submits that the stand of concerned Mukhiya that respondent-Poonam Kumari did not appear in the counseling is not correct in view of the statement of one of the member of the Employing Unit namely, Sanju Devi. The fact that marks obtained by respondent-Poonam Kumari is higher than the petitioner-Mamta Kumari is not in dispute. It has been further contended that even though the respondent-Poonam Kumari appeared in the counseling in Maura Gram-Panchayat, there could be no valid reason to say that she could not have appeared in the counseling in another Gram Panchayat alongwith petitioner. 5. Learned counsel appearing for the Mukhiya and the Panchayat Secretary reiterates their stand that respondent-Poonam Kumari did not appear in the counseling in which petitioner-Mamta Kumari was selected, and as such, the appointment of petitioner-Mamta Kumari is legal and valid. 6. Learned counsel appearing for the State submits that the matter related to the appointment of Panchayat Teacher as per the counseling held by the Employment Unit. 7. Considering the submissions of the parties and their respective pleadings, it would appear that the respondent-Poonam Kumari had obtained higher marks than the petitioner is not in dispute. The controversy is as to whether respondent-Poonam Kumari appeared in the counseling in Gangra Gram Panchayat on the same date and time while taking part in the counseling in another Panchayat namely Maura Gram Panchayat. The admitted position is that respondent-Poonam Kumari appeared in the counseling at Maura Gram Panchayat. With respect to her presence in the counseling at Gangra Gram Panchayat the Appellate Authority held that respondent-Poonam Kumari appeared in the counseling at Gangra Gram Panchayat as well on the basis of the statement of one of the member of Employment Unit namely, Sanju Devi. However, there was a counter stand/statement of the concerned Mukhiya and Panchayat Secretary that respondent-Poonam Kumari did not appear in the counseling at Gangra Gram Panchayat as per the record where petitioner-Mamta Kuamri had appeared in the counseling. As regards making her application for selection and the fact of her appearance in the counseling is not in dispute. The Panchayat Secretary and Mukhiya have substantiated the same. As regards making her application for selection and the fact of her appearance in the counseling is not in dispute. The Panchayat Secretary and Mukhiya have substantiated the same. Petitioner-Mamta Kumari as also respondent-Poonam Kumari both brought on record the acknowledgement receipts of their applications, however, this Court is not making a probe of the factual aspect on this count in view of the clear stand of Mukhiya and Panchayat Secretary on basis of record that petitioner-Mamta Kumari had appeared in the counseling and respondent-Poonam Kumari did not appear in the counseling. The finding of the Appellate Authority that respondent-Poonam Kumari appeared in the counseling in Gangra Gram Panchayat is not substantiated by materials on record, and as such, the impugned order cancelling appointment of the petitioner-Mamta Kumari cannot be sustained in law. It is accordingly quashed. 8. In view of quashing of the impugned order dated 9th March, 2011 as contained in Annexure-1, the other writ petition i.e. CWJC No. 1133 of 2012 has become infructuous. 9. For the reasons above, both the above writ applications stand disposed of.