- (1.) Heard learned counsel for the State on the prayer for condonation of delay of 708 days in preferring the instant memo of appeal made through I.A. No.5862/2018. We have also entertained arguments on merits of the challenge to the impugned judgment dated 28 th June 2016 rendered in W.P.(S) No.6440/2014 by the learned Single Judge on the part of the learned State counsel.
(2.) Briefly stated hereunder is the factual canvass of the case. Writ petitioner, an applicant for appointment on Class-IV post in the district of Dumka under the panel prepared by the District Administration, Dumka was denied appointment despite having obtained 144 marks and the persons below him having been appointed as well only on the ground that he had not appeared in the cycling test. On petitioner's representation it was found that he and one other candidate were shown to have failed in the cycling test but in the admit card they were shown as absent. In view of such contradiction, the Deputy Commissioner, Dumka vide order no.97/2012 dated 21 st April 2012 constituted a Four Men Committee to inquire into the matter. The committee submitted a report and also took the cycling test of the petitioner in which the petitioner was found to have passed. In spite thereof he was not appointed. The selection committee meeting held on 6th September 2013 headed by the Deputy Commissioner, Dumka took a stand that since the petitioner had absented himself in the cycling test, the merit list prepared earlier was to be maintained. In these factual backgrounds, learned Single Judge held as follows :- "7. Having heard learned counsels for both the sides and upon going through the record, it is apparent that though there is dispute about the petitioner appearing in the cycling test, but the fact remains that the Deputy Commissioner, Dumka, had constituted a Four Men Committee which had taken the cycling test of the petitioner and the petitioner had passed the cycling test. In that view of the matter, the respondent State now cannot withdraw from the said stand and deny the appointment to the petitioner. Once the petitioner had successfully passed the cycling test before a duly constituted Committee by the Deputy Commissioner, Dumka, the stand of the respondent State that the panel shall not be disturbed, cannot be sustained in the eyes of law. 8. In view of the aforementioned discussion, the respondents, particularly respondent no.2, i.e. the Deputy Commissioner, Dumka is directed to appoint the petitioner on a suitable Class- IV post in the district of Dumka, within a period of four months from today. 9. This writ application is accordingly, allowed with the direction as above."
(3.) Learned counsel for the State has tried to explain that cycling test was taken again after the preparation of the panel, though undisputedly on the orders of the Deputy Commissioner by the Four Men Committee. He is not in a position to over-come the findings of the learned Single Judge since the retest was undertaken on account of an apparent contradiction when the applicant was found to have failed in cycling test along with one other candidate, whereas the admit card showed him to be absent.;