IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1605 of 2002 JITENDRA KUMAR Versus THE STATE OF BIHAR & ORS ----------- No 4 7-11-2008 Nobody appears on behalf of the petitioner. Learned counsel for the State is present. Nobody appears on behalf of respondent no.5 although a counter affidavit has been filed on his behalf admitting the claim of the writ petitioner that he is senior to respondent no.5. According to learned counsel for the State a counter affidavit has been filed in this case in the office on 7-9-2005. The office is directed to locate the same and keep it on record. A copy of that counter-affidavit has been produced before the court. Paragraphs 4 and 5 of that counter- affidavit also admit the claim of the petitioner that he is senior to respondent no.5 in view of the fact that both were appointed as Jail Superintendent through 39th Combined Competitive Examination and in the final result prepared by the Bihar Public Service Commission petitioner’s name was at serial no.3 and name of respondent no.5 was at serial no.4. The counter-affidavit of the State further shows that the impugned communication contained in nexure-2 is not a gradation list and therefore the writ petitioner should not feel aggrieved if his name has been shown below that of respondent no.5 in annexure-2. Along with counter- affidavit letter no 2634 dated 11-6- 2005 has been annexed as Annexure-A and it has been averred in paragraph 6 of the counter affidavit that through the said letter a provisional gradation list has been circulated and in that list petitioner is above respondent no.5. In the aforesaid facts and circumstances it is found that admittedly the writ petitioner is being treated as senior to respondent Naresh no.5 not only by the department but also by respondent no.5. Hence, the writ petition is dismissed as misconceived and infructuous. (Shiva Kirti Singh,J)