IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6321 of 1998 Binod Kumar Mishra, S/o Sri Yogendra Mishra, Resident of Village Madhurapur Tenra, P.S. Kalyanpur, Dist. Samastipur at present Laboratory Attendant Sugarcan Research Institute, Pusa, Dist. Samastipur. -------- Petitioner Versus 1. Rajendra Agriculture University, Pusa, Bihar, through its Registrar. 2. Vice Chancellor, Rajendra Agriculture University, Pusa, Samastipur. 3. Director, Sugarcane Research Institute, Pusa, Samastipur. 4. Director, Administrator, Rajendra Agriculture University, Bihar, Pusa, Samastipur. 5. Sitaram Thakur, S/o late Yugeshwar Thakur, Resident of Village Deopur, P.S. Pusa at present Clerk, Sugarcane Research Institute, Pusa, Bihar, Samastipur. ---------- Respondents ----------- 4 26.7.2011 Having heard Mr. Abhimanyu Sharma, learned counsel for the petitioner and Mr. Awadh Bihari Ojha, learned counsel for the respondent no.5 as also Mr. Anil Kumar Upadhayaya, learned counsel for the Rajendra Agriculture University, this Court would find that sometime common interest also becomes adverse to each other. The petitioner and the respondent no.5 had earlier swam and sank together when their appointment made in 1995 as such was challenged by someone else in this Court in C.W.J.C. No. 3903 of 1995 and infact had jointly with others filed their L.P.A. 915 of 1996 when their appointment was 2 set aside on 12.10.1996. The much belated realization of the petitioner on 31.7.1998 that his friend respondent no.5 was wrongly appointed on the post of Clerk in 1995 by displacing him on the basis of an incorrect implementation of policy of reservation and roaster could be effectively gone into in the light of the facts which was then prevailing at the time of issuance of the advertisement on 7.10.1991. It is not in doubt that even before revised advertisement was made, the ordinance, namely, the Bihar Reservation of Vacancies in Posts and services (For Scheduled castes, Scheduled tribes and other Backward Classes) Ordinance, 1991 was enforce inasmuch as it was published in the official gazette on 26.9.1991. Therefore, it would be difficult for this Court now to decide offhand as to whether the reservation, which was provided in the original advertisement and was sought to be changed in the revised advertisement from the one which was acted upon after showing one post reserved for General Category and other post for Most 3 Backward Category, was in negation to the right of the petitioner, who claims to have secured the highest marks for the post of Clerk and much more than the respondent no.5. True it is that in any fresh transaction of selection and appointment, there can be no reservation beyond 50% of post and, therefore, if the two posts of Clerk were to be filled up, one of them ought to be given to General Category but, then, if the backlog vacancies were continuing and the 1991 Ordinance as latter on also made Act 3 of 1992 had itself provided for preparation and filling up posts following the model roaster, it would actually require going into the details as to whether two posts which were advertised on 7.10.1991 had fallen for the reserved category, one for the Schedule Caste and other for the Most Backward Class by way of clearing backlog vacancies. This Court however would not be in a position to accept that part of submission of Mr. Sharma that the three posts, namely, two posts of Clerk and one post of Typist-cum- Clerk could be combined for the purpose of 4 roaster-cum-reservation, inasmuch as, there has to be a reservation for each of the post and the roaster points have to be followed for each of them. Consequently, it is only the post of Clerks advertised by the University vide Annexure-1 for which roaster point will have to be examined in the light of the fact that even in the advertisement, it was clearly indicated that the roaster available with the University was provisional in nature and could be varied and/or changed. If, therefore, on the basis of this factual analysis, it is found that the two posts of Clerks were actually meant to be filled up as per the roaster arrangement, one from the General Category and other from the Reserved Category, the appointment of the respondent no.5 against such post of General Category would be impermissible in law. On the other hand, if it is found that both the posts as per the roaster in force on the date of the advertisement and undertaking the selection process could contemplate of its being filled up by way of clearing the backlog, there would be no escape from the position that 5 even such posts could be reserved as per the roaster for the Reserved Category. Mr. Ojha, learned counsel for the respondent no.5 has definitely a valid point that today this exercise, being made after sixteen years of the appointment of the respondent no.5, during which he has not only continued on the post of Clerk but, by virtue of his merit and seniority, has also been promoted on the post of Head Clerk could seriously prejudice him. To that extent, the University also will have to keep in mind the continuance of the respondent no.5 on the post of Clerk for last sixteen years while deciding the question of appointment of the petitioner on the post of Clerk. This Court can also not totally ignore the fact that the petitioner had in the meantime accepted his appointment on Class-4 post in the year 1995 and was eventually promoted on a Class-III post the basis of his such experience on Class-IV post after he had passed the departmental examination in the year 1999. The petitioner in fact is also working against a Class-III 6 post since 1999 but, his grievance is that such Class-III post held by him has got a lesser pay-scale in comparison to the pay- scale of the post of Clerk and the further promotional prospect is also better in the cadre of Clerk. Thus, if the petitioner’s appointment and continuation as a Class-IV employee and thereafter promotion on a Class- III post has been allowed to continue for last sixteen years, the University will have to find out some way of redressing the grievance of the petitioner in case it is held that he was the best candidate in the General Category and there was a post also available for the General Category on the post of Clerk which was wrongly filled up by appointing Respondent no. 5. In that event, the University may give the benefit of the post of Clerk to the petitioner from the date the respondent no.5 came to be appointed by adjusting him against any future vacancy that may have become available in course of time. For the time being, this Court would not express any final opinion on the most 7 crucial issue, which has neither been raised in this writ application nor has been answered in the counter affidavit, namely, the roaster of post, which was prevalent on the date of advertisement and the applicability of Section-6 of the Act 3 of 2002, which came in continuation to the Ordinance dated 26.9.1991. In that view of the matter, this Court would remit the matter back to the Vice Chancellor of the University, who shall pass necessary orders after hearing the petitioner as also respondent no.5 and take a decision within a period of six months from the date of receipt/production of a copy of this order. With the aforesaid observation and direction this writ application is disposed of. Rsh (Mihir Kumar Jha, J.)