IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.630 of 2010 1. The State Of Bihar. 2. The Secretary Department of Personnel And Administrative Reforms, Govt. of Bihar, Patna 3. The Secretary-Cum-Commissioner Department of Social Welfare, Govt. of Bihar, Patna. 4. The Director Integrated Child Development Service (I.C.D.S.), Govt. of Bihar, Patna. Versus 1. Raj Mohan Sah S/O Sita Ram Sah R/O Vill.- Fatehpur Erka, P.S.- Thathna Bujurg, Distt.- Vaishali 2. Santosh Kumar Jha S/O Vikal Jha R/O Vill.- Babria, P.O. and P.S.- Supaul, Distt.- Saharsa. 3. Bihar Public Service Commission Through its Chairman, Patna. 4. Chairman, Bihar Public Service Commission, Patna. 5. The Secretary Bihar Public Service Commission, Patna. with LPA No.1469 of 2010 1. The State Of Bihar 2. The Secretary Department of Personnel And Administrative Reforms, Government of Bihar, Patna 3. The Principal Secretary-Cum-Commissioner Department of Social Welfare, Government Of Bihar, Patna 4. The Director, Integrated Child Development Service (Icds), Patna Versus 1. Subodh Kumar Sinha S/O Late Vinoy Krishna Prasad R/O Vill.+P.O.- Jamsari, P.S.- Bind, Distt.- Nalanda 2. Arvind Kumar S/O Sri Ramesh Nandan Prasad R/O Vill.+P.O.- Bathnaha, Distt.- Sitamarhi 3. Rajesh Prasad S/O Sri Basudeo Sah R/O Vill.- Mirpur, P.S.- Dighwara, Distt.- Saran 4. Mahesh Kumar S/O Sri Shionandan Sah R/O Vill.- Chakdaulat, P.O.- Lakhanpura, Distt.- Patna 5. Ajit Kumar S/O Late Shivnandan Pandit R/O Vill.- Radhil, P.O.- Naima, P.S.- Akangarsarai, Distt.- Nalanda 6. Anil Kumar Ram S/O Late Sahadeo Ram R/O Vill.- Malkhachak, P.O.- Dighwara, P.S.- Dighwara, Distt.- Saran 7. Bechan Thakur S/O Sri Baidyanath Thakur R/O Vill.+P.O.- Bangao, Thakurpati (Dihali Bangala), Distt.- Saharsa 8. Bihar Public Service Commission through Its Chairman, Patna 9. The Chairman, Bihar Public Service Commission, Patna 10. The Secretary Bihar Public Service Commission, Patna ----------- For the Appellants : Mr. Kundan Bahadur Singh, Advocate Mr. Dhindra Kumar, A.C. to S.C.-VIII Mr. Suresh Kumar, A.C. to S.C.-VII For the Respondents: Mr. Chitranjan Sinha, Senior Advocate. Mr. Bindhayachal Singh, Advocate. 2 4 19.07.2011 This Letters Patent Appeal has been filed by the State of Bihar against the judgment of the learned Single Judge passed in C.W.J.C. No.128 of 2008 dated 18.12.2009 and C.W.J.C. No.17479 of 2009 respectively, by which the learned Single Judge has directed the State Government to treat the petitioners’ appointment as regular appointment. The case set up before the learned Single Judge by the petitioners was that they applied in terms of the advertisement which was for regular appointment and recommendations were made for regular appointment but instead of giving them regular appointment, contractual appointment were given to them. The learned Single after dealing with the arguments of both the sides held that appointment was made on the recommendation of the Public Service Commission in terms of the advertisement which was made for regular appointment and also directed for payment of salary for regular Class-III employee from the date of filing of the writ petition and seniority etc. shall be given from the date of appointment and the pay scale from the date of filing of the writ petition. The learned Single Judge fell into error in not considering the counter affidavit filed by the Bihar Public Service Commission who has clarified the position very categorically in its counter affidavit. The paras 6 to 10 of the counter affidavit filed by the Bihar Public Service Commission are reproduce here asunder: “ 6. That the material facts of the case are that in the year 1990 Advt. No.-1/90 was published inviting application for filling up vacancies in different departments of the State of Bihar on the basis of 3rd Graduate standard level Competitive Examination by 3 the then Bihar State Sub-ordinate Service Selection Board. 7. That after publication of the result, the recommendations were sent to the different deptts after observing the due selection process. There after C.W.J.C. No-1376/97 (Hridayal Kumar & Ors Vs The State of Bihar & Ors) was filed in the Hon’ble High Court, Patna. When the B.P.S.C. sought guidelines from the State Govt. whether to proceed with the selection in pursuance of 1990 Advertisement or should go for fresh advertisement, the state Govt. advised to proceed with the selection process to fill up all the vacancies of Graduate Standard Class-III posts which fell vacant between Ist January 1990 and 31st December, 1993 out of the successful candidate of 3rd Graduate Standard level Examination. 8. That in due course a contempt petition namely M.J.C. No-3654/2000 (Raj Kumar And Ors. Vs. Dr. Laxmi Rai and others) was also filed before this Hon’ble Court to make further recommendation on the available posts. The Case was heard on several occasions and finally the Hon’ble Court vide its order dated 08.11.2003 disposed of the said contempt petition with a direction to the State Government to make appointment pursuant to the recommendation within a time frame. 9. That so far as the post of statistical Assistant in welfare Deptt. Is concerned, the post was to be filled up on contract basis. The Commission, in the past, had not sent any name at any point of time for appointment on contract basis. However, in terms of the direction of this Hon’ble Court in M.J.C. No-3654/2000, the Commission by way of revising its earlier stand sent recommendation against 75 posts of Statistical Assistant on contract basis in the Social welfare Department, Bihar vide Commission’s letter no-215 dated 04.11.2003. 10. That the said recommendation as stated above was sent in the light of the requisition letter no.-686, dated- 22.04.2000 in which it was clearly mentioned that the said posts were purely temporary and on contract basis.” 4 From perusal of the above paras it is clear that commission had made recommendation for the contractual appointment in terms of the Requisition Letter No.668 dated 22.04.2000 in which it was clearly mentioned that the post were temporary and appointment were to be made on the contract basis. It is further evident that the Department was under obligation to do this exercise within a time frame. It is further clear that commission had never recommended for appointment on the post of Statistical Assistant in terms of the advertisement in the Welfare Department for regular appointment. The learned counsel for the appellant vehemently submitted that persons junior to him in the merit have been given regular appointment while the respondents have not been given regular appointment. This point could have been raised by the petitioners while accepting the contractual appointment which is based on the recommendation of the commission. The recommendation of the commission has not been challenged by the respondent in writ application and commission has stated in its counter affidavit that in the department of Social Welfare Department these Class-III post were temporary post, therefore, there is no reasonable classification and Article 14 is not violated at all. It is still open to the respondent / petitioner to challenge the recommendation. The delay if any is liable to be condoned under the guise of Section 14 of the Limitation Act. The above reproduced facts stated clearly established that the petitioner’s appointment was made on contract basis as per requisition made 5 by the Government and as per recommendation from the select list which was meant earlier for class-III post. The petitioners have been given contractual appointment and are well working. And such post is temporarily being extended from time-to-time. Thus, in view of the factual position the judgment and order of the learned Single Judge is set aside and appeal is disposed of with the direction as to whenever the post hold by the petitioners is made permanent, the petitioners shall be deemed to be to have been regularly appointed from that date. PN (Prakash Chandra Verma, J.) (Aditya Kumar Trivedi, J.)