High Court Patna High Court - Orders

Somara Kumari vs The State Of Bihar & Ors on 9 September, 2011

Patna High Court – Orders
Somara Kumari vs The State Of Bihar & Ors on 9 September, 2011
                          IN THE HIGH COURT OF JUDICATURE AT
                                        PATNA
                                 Civil Writ Jurisdiction Case No.1268 of 2009
                                                   Somara Kumari
                                                        Versus
                                             The State Of Bihar & Ors
                                           ----------------------------------

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

———-

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.)