Ashutosh Kumar, ACJ.—

Re: I.A. No. 2 of 2024

The learned Advocate for the appellant/ applicant presses I.A. No. 2 of 2024 for condoning the delay of 33 days in preferring this appeal.

2. For the reasons stated in the application, the delay of 33 days in preferring this appeal is condoned.

3. I.A. No. 2 of 2024 stands allowed.

Re: LPA No.29 of 2024

4. Heard Mr. Y.V. Giri, the learned Senior Advocate for the appellant/Kavita Kumari, Mr. Prashant Kashyap, the learned Advocate for respondent No. 11 and Mr. Kunal Tiwary, the learned Advocate for the State.

5. The appellant had been working as Panchayat Teacher since 14.07.2007. Private respondent No. 11 had also participated in the selection process and because she had higher marks than the appellant, her name was entered in the merit-list above the appellant. However, appointment was given to the appellant in 2007 on the plea that on the date of counselling, the private respondent No. 11 did not appear. The difference of marks of the appellant and the respondent No. 11 is one. Both come from the same category of unreserved female. After some time of the appointment of the appellant, a complaint was made by private respondent alleging that deliberately the notice of counselling was sent to the candidates Under Postal Cover (UPC). She was never served the notice nor did she have any idea about such counselling being held. It was also lamented by her that on the first day of the counselling, the appellant was chosen and, in fact, the sequence of events indicated that the entire process was orchestrated to accommodate the appellant.

6. An inquiry commenced and ultimately the matter travelled to the District Teachers Appellate Authority where the respondent No. 11 lost. She lost in appeal before the State Appellate Authority as well.

7. The ground taken by respondent No. 11 in the two proceedings, referred to above, was that times without number the Supreme Court has held that sending notices under UPC is with a purpose to defraud genuine candidates and accommodate people who have wires connected to the influential persons.

8. Reference was made by the private respondent before both the forums that in view of the judgment in Chitranjan Kumar Singh vs. The State of Bihar & Ors. : 2010(4) PLJR 183, any notice sent by UPC would be deemed to have given unfair advantage to the person selected, especially when the other person has secured higher marks than the appointee.

9. It was considered to be a fraudulent action.

10. This judgment took into account an almost similar plea taken in the case of Gadakh Yashwantrao Kankarrao vs. E.V. alias Balasaheb Vikhe Patil and Ors.: AIR 1994 SC 678 wherein it was held that a notice/dispatch by UPC is doubtful. A certificate of posting is very easy to be obtained and, therefore, is not reliable. Expenses in sending registered notice is immaterial and that cannot be a ground to validate such action of issuing notice under UPC.

11. The countervailing arguments of the appellant before all the forums was that the private respondent was married in another village and, therefore, she was not interested in her appointment as Panchayat Teacher. Perhaps this was the reason for her not to appear in the counselling on 14.07.2007. In fact, the complainant having been kept out of the selection process, out of design, the complaint was filed only after two months of her marriage.

12. With respect to the validity of notice by UPC regarding holding of counselling, it was asserted by the appellant before both the forums and also before the learned Single Judge that such prohibition on sending such notices by UPC came only after 2010.

13. Prior to the judgment in Chitranjan Kumar Singh (supra), the general practice had been to issue notice regarding the counselling date under UPC for the reason of registered notices being sent to so many of the candidates would have been expensive and the Panchayat was not ready to fund such expenses.

14. This argument was never accepted by any authority