Patna High Court - Orders
Smt. Manju Devi vs The State Of Bihar & Ors on 26 April, 2012
Author: Navin Sinha
Bench: Navin Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.6303 of 2012
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1. Smt. Manju Devi W/O Sajan Sharma R/O Village-Milki, P.S.- Milki,
Anganwari Centre No. - 35, District- Bhagalpur
.... .... Petitioner/s
Versus
1. The State Of Bihar Through The Commissioner-Cum-Secretary Social
Welfare Department, Bihar, Patna
2. The Commissioner, Bhagalpur
3. The District Magistrate, Bhagalpur
4. The Block Development Officer, Bihpur, Bhagalpur
5. The Child Development Project Officer, Bihpur, District- Bhagalpur
6. The Secretary Bihar School Examination Board, Budhamarg, Patna
7. The Principal, High School Babhanga At Bihpur, District- Bhagalpur
8. The Mukhiya Village & Post- Milki Panchayat Bihpur East, District-
Bhagalpur
9. Smt. Ruby Devi W/O Sri Jay Prakash Sharma R/O Village & Post- Milki,
Panchayat Bihpur East, District- Bhagalpur
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Pravina Kumari, Adv.
For the State : Mr. Sushil Kumar, A.C. to G.P.-1
For the B.S.E.B. : Mr. Partha Sarthy, Adv.
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CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA
ORAL ORDER
2. 26-04-2012Heard learned counsel for the petitioner and the State.
The petitioner is aggrieved by the order of the District Magistrate dated 8.12.2010 rejecting her claim for appointment as Anganwari Sewika in preference to respondent no. 9 as affirmed in Appeal by the Commissioner on 18.11.2011. It is submitted that Aam Sabha was held on 30.6.2004 in which the petitioner was placed at serial No. 1 and the private respondent at serial No. 2. Denial of appointment led to submission of a representation by her as 2 Patna High Court CWJC No.6303 of 2012 (2) dt.26-04-2012 2/4 early as 21.3.2005. When no heed was paid to it she filed C.W.J.C. No. 13207 of 2007. The writ application was disposed on 18.12.2009 to decide the competing claims after hearing both sides.
The District Magistrate on 8.12.2010 without examining original records acknowledging unavailability only under pressure of a contempt proceeding simply held that the marks of respondent no. 9 were higher and she was therefore entitled to be selected in preference to the petitioner. In Appeal before the Commissioner the petitioner had specifically taken the ground that the certificates produced by respondent no. 9 were suspect on grounds specified and therefore no preference should have been given to her on suspicious documents. The Commissioner despite noticing the submissions does not decide the issue and simply reaffirms the order of the District Magistrate. The order of the Commissioner is therefore not sustainable and is fit to be set aside.
Counsel for the State has supported the impugned orders urging that the writ application merits no interference.
The selections were made as far back as on 30.6.2004. The petitioner moved in March, 2005 for the first time. When her grievances were not considered she filed C.W.J.C. No. 13207 of 2007. The writ petition was disposed 3 Patna High Court CWJC No.6303 of 2012 (2) dt.26-04-2012 3/4 on 18.12.2009 to examine her grievances. The District Magistrate held that the private respondent had higher marks than the petitioner.
The Court requested the counsel for the petitioner to make available for its perusal the representations that may have been filed by the petitioner before the District Magistrate as the same were not annexed to the writ petition. Learned counsel has placed photocopies of the representations submitted by the petitioner before the District Magistrate on 21.3.2005, 2.5.2005 and 17.3.2006. In all the said representations the petitioner has not raised any issue with regard to the educational certificates of respondent no. 9 being suspect. Naturally that does not form part of the discussion in the order of the District Magistrate.
An Appeal is normally decided on basis of issues raised and adjudicated before the lower forum. New grounds cannot be urged in Appeal unless it is first demonstrated that despite due diligence, it could not have been raised. There is no explanation why the issue of the certificates of the respondent no. 9 being suspect were raised for the first time in Appeal before the Commissioner.
Exercising its discretionary jurisdiction under Article 226, dealing with appointments of Agents and not Government servants, that respondent no. 9, as an Agent was discharging duties since 2004, has acquired proficiency in the 4 Patna High Court CWJC No.6303 of 2012 (2) dt.26-04-2012 4/4 scheme, all persuade the Court not to interfere further in the matter.
The application is dismissed.
P. Kumar/- (Navin Sinha, J)