IN THE HIGH COURT OF JUDICATURE AT
PATNA
Civil Writ Jurisdiction Case No.1268 of 2009
Somara Kumari
Versus
The State Of Bihar & Ors
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For the Petitioner : Mr. Dhanendra Choubey, Advocate
For the State : Mr.Gyan Prakash Ojha, Advocate
For the Respondent No. 8: Mr.Lal Bahadur Pandey, Advocate
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3. 09.09.2011 Heard learned Counsel for the petitioner, the State and for the
Respondent no. 8.
A counter affidavit has been filed on behalf of the State.
Counsel for the Respondent no. 8 prays for time to file counter
affidavit. Since it is primarily the action of the official respondents
which is impugned and the judicial review to be done is based only on
the recitals contained in the two impugned orders the Court is not
persuaded to adjourn the matter at the request of Respondent no. 8.
The Court had already indicated at the time of issuance of notice that
Respondent no. 8 must enter appearance along with the counter
affidavit and that no adjournment shall be granted for the purpose.
Counsel for the petitioner submits that a specific objection had
been raised with regard to ineligibility of Respondent no. 8 to be
considered for appointment on the grounds contained in Clause 3 (e)
of the guidelines that her relative was a public representative. The
objection has been noticed but ignoring the same she has been held
entitled to preference as a widow. The appellate authority likewise has
ignored this aspect.
The counter affidavit of the State is of no help and does not
deal with this aspect of the matter.
2
Counsel for the Respondent no. 8 submitted that her brother
was engaged in a semi government organization which is not a
disqualification.
In exercise of powers of judicial review under Article 226 the
Court is primarily concerned with the decision making process and not
the decision itself at the first instance. If the petitioner had raised an
objection with regard to ineligibility of Respondent no. 8 under a
particular clause of the guidelines there had to be a determination by
either acceptance or rejection of the objection. Having noticed the
objection the District Magistrate could not have ignored it and
proceeded to hold in favour of Respondent no. 8 on the ground of her
being a widow only. The benefit that may come to her by being a
widow can get obliterated by her disqualification. An order which
ignores or fails to take into consideration relevant materials while
deciding the matter cannot but be held arbitrary.
The impugned order dated 25.9.2007 and that of the
Commissioner dated 21.7.2008 in Appeal No. 558 of 2007 are held to
be not sustainable in their present form. Both the orders are
accordingly set aside. The matter is remanded to the District
Magistrate to decide the matter afresh in light of the discussions
contained in the present order within a maximum period of two months
from the date of receipt and/or presentation of a copy of this order.
The writ application stands allowed.
Snkumar/- (Navin Sinha,J.)