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2006 Supreme(Pat) 1102
PATNA HIGH COURT
Narayan Roy and Sheema Ali Khan JJ.
State Of Bihar And The Director Secondary Education, Govt.Of Bihar
Versus
Anita Kumari And Vidhyalaya Seva Board
Letters Patent Appeal No. 1223 of 2000 ;
Decided On : NOVEMBER 22, 2006
New pleas raised for the first time in an appeal, without foundational facts or supporting materials, cannot be considered.
Headnote:
Appointment - Headmistress - C.W.J.C. No. 9405 of 1994, C.W.J.C. No. 4207 of 1997, M.J.C. No. 1581 of 1998 - The court discussed the qualifications and appointment of Anita Kumari as Headmistress in nationalised/project High School, considering various writ applications and contempt petitions. The court found that the qualifications of Anita Kumari were raised for the first time in the contempt petition without making her a party, and no material was presented to support the claim that she was not duly qualified. The court dismissed the appeal based on these findings.
Fact of the Case:
The case involved the appointment of Anita Kumari as Headmistress in a nationalised/project High School. The State of Bihar filed an appeal against the order directing Anita Kumari's appointment, claiming she did not fulfill the requisite qualifications.
Finding of the Court:
The court found that the qualifications of Anita Kumari were raised for the first time in the contempt petition without making her a party, and no material was presented to support the claim that she was not duly qualified. As a result, the court dismissed the appeal.
Issues: The issues revolved around the qualifications and appointment of Anita Kumari as Headmistress, as well as the timing and validity of the challenges raised regarding her qualifications.
Ratio Decidendi: The court held that new pleas raised for the first time in an appeal, without foundational facts or supporting materials, cannot be considered. It emphasized that questions not raised in the original writ were raised for the first time in the appeal, leading to the dismissal of the appeal.
Final Decision: The court dismissed the appeal, finding no merit in the contentions of the appellants.
Sheema Ali Khan, J.
1. The appellant in this case is State of Bihar through the Director, Secondary Education, Government of Bihar. The order under challenge is dated 3.5.2000 passed by the learned single Judge in which it was directed that respondent No. 1 i.e. Anita Kumari should be appointed as Headmistress in nationalised/project High School.
2. The case of Anita Kumari before this Court was that she was empanelled for appointment at serial No. 67 and the persons junior to her in the panel were appointed whereas she has been denied appointment. Accordingly, learned single Bench had directed that steps should be taken for issuance of appropriate order of appointment in respect of the appellant. Learned single Bench had also observed that if the appellant is within the zone of appointment, steps should be taken for issuance of order of appointment of Anita Kumari within one month of the receipt of a copy of the order of the Hon ble Court, failing which steps should be taken by the Court against the erring officer/person including the Director, Secondary Education, Government of Bihar, Patna.
3. During the hearing of the writ application the State of Bihar had not filed any counter-affidavit and the matter was disposed of without a counter-affidavit.
4. The State of Bihar filed an appeal against the said order and notices were issued on 8.9.2000 to the appellant and Vidhyalaya Seva Board, Patna. While hearing this matter on 17.10.2006, this Court also heard the learned Counsel appearing for irvtervenor, namely, Dr. Sudha Kumari.
5. The case of Dr. Sudha Kumari in the intervention petition is that she had applied for the post of Headmistress on the basis of advertisement No. 3 of 1999 and she too was empanelled at serial No. 104. It is also said on her behalf that the case of the intervenor was that earlier some malpractices and irregularities were discovered in the selection process for which C.W.J.C. No. 9405 of 1994 was filed by Manju Jha. It is also stated that several other persons had moved this Hon ble court in writ application. Ultimately, this Hon ble Court was pleased to quash the panel and directed that a fresh panel should be prepared in accordance with law in pursuance of advertisement No. 3/1999. Thereafter a panel was prepared and respondent, No. 1 was at serial No. 67 of the panel whereas Dr. Sudha Kumari was at serial No. 105 of the panel. After preparation of the second panel Dr. Sudha Kumari along with one other filed writ application being C.W.J.C. No. 4207 of 1997 on the ground that there were vacancies and they should be absorbed against such vacancies. The Hon ble Court by order dated 3.11.1997 disposed of the writ application with a direction to the respondent-Director, Secondary Education, Govt. of Bihar, Patna, to examine the claim of the petitioner expressing the opinion that if there was unfulfilled vacancies and vacancies were available, the Director. Secondary Education, Govt. of Bihar, Patna, should examine the claim of the petitioner and issue consequential orders of appointment.
6. At this stage it may be emphasised that Dr. Sudha Kumari and others had not made Anita Kumari a party to the writ application and they had not claimed that Anita Kumari was not fit for appointment. The State of Bihar through the Director, Secondary Education had filed a counter-affidavit in C.W.J.C. No. 4206 of 1997 and there was no averment by the State that Anita Kumari had been wrongly empanelled and for that she did not have the qualification for being considered for appointment as a Headmistress.
7. It is the case of the intervenor Dr. Sudha Kumari, that she had moved in a contempt application numbered M.J.C. No. 1581 of 1998 arising out of C.W.J.C. No. 4207 of 1997 claiming that her case for appointment has not been considered by the Director, Secondary Education and that inclusion of the name of Anita Kumari in the panel at serial No. 67 was illegal. In the contempt application two sets of show causes
