IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7687 of 1997 Awadhesh Rai, S/o Upendra Rai, Resident of Village Mohamadpur, P.O. Mamsai, P.S. Desri, District Vaishali. ---------- Petitioner Versus 1. State of Bihar through Commissioner and Secretary, Primary, Secondary and Adult Education, Department of Human Resource Development, Patna. 2. Director, Primary Education, Bihar, Patna. 3. District Education Establishment Committee through District Magistrate, Vaishali, Hajipur. 4. District Superintencent of Education, Vaishali, Hajipur. 5. Bihar Public Service Commission through its Chairman, 15 Jawahar Lal Nehru Marg, Patna. 6. Secretary, Bihar Public Service Commission, 15, Jawahar Lal Nehru Marg, Patna. 7. Sri Pramod Kumar, Assistant Teacher, Primary School, Kashipur, P.O. Bidhupur, PS Distt. Vaishali. ----------- Respondent ----------- 8 15.07.2010 Heard Mr. M.P. Shukla, learned counsel for the petitioner and Counsel for the State as also counsel for the Bihar Public Service Commission. In this writ application, the prayer of the petitioner reads as follows:- “1(i) For issuance of a writ of certiorari quashing the office order of the District Superindent of Education, Vaishali contained in his memo no. 1196 dated 30.6.95 whereby and whereunder the service of the petitioner has been terminated. 2 (ii) For issuance of writ of mandamus, directing and commanding the respondents to restore his service of the petitioner or and appoint him afresh as an Assistant Teacher of Primary school against the vacant post in other Back Ward Class category (Reservation code- 05) in the District of Vaishali.” Mr. Shukla, learned counsel for the petitioner, with reference to the aforementioned prayer would submit that when the petitioner was already appointed pursuant to the recommendation of the Commission, he could not have been removed from service on the ground that the respondent no.7 belongs to Backward Category and had secured higher marks to the petitioner also belonging to the backward category. He has also explained that since the Commission had withdrawn the recommendation made in favour of the petitioner and had made recommendation for appointment of Respondent no. 7 in his place it had led to passing of the impugned order of termination of service of the petitioner. Mr. Singh has also highlighted that as a matter of fact there were 52 posts in the backward category in Vaishali district but 3 then only 51 persons out of 52 recommended by the Commission were appointed by the Government and therefore, even if the respondent no.7 had secured higher marks to the petitioner and was entitled to be appointed, there was no need to disturb the appointment of the petitioner. This Court, from the writ application filed by the petitioner, would find that there is no such pleading that the respondent no.7 had initially appointed under 04 category i.e. Most Backward Category and later on wanted to change his category from Most Backward Category to Backward Category. In fact, this aspect of the matter has also been clarified by the Commission itself in its counter affidavit, wherein it has been stated as follows:- “4. That it is humbly submitted that the petitioner, who was a qualified candidate in the main Examination from the district of Vaishali for the post of Primary teacher. He was recommended for appointment by the Commission (in the “05” Backward Class category) as serial No.332. It is humbly submitted that the petitioner was the last candidate recommended from the “05” category. 4 Accordingly, the petitioner was appointed as Assistant Teacher in Vaishali District. 5. That it is humbly submitted that one Pramod Kumar (Roll No. 41669) who was recommended by the Commission as extremely Backward Class category (04 Code) at the time of verification of the certificates was found to be belonging to Kurmi caste, which is OBC category (05 category). As such, the District Supdt. of Education, Vaishali stayed the joining of Pramod Kumar and sought guidance from the Respondent Commission. After considering the facts and record, the Commission vide its letter No. 293 dated 6.10.1994 informed the District Magistrate, Vaishali that the name of the petitioner (Awadhesh Rai), who was the last candidate in “05” category, is being withdrawn and the said Pramod Kumar’ Serial No. 216, Roll No. 41669 was recommended for appointment as “05” category candidate in stead of “04” category candidate due to change in Code of the said Pramod Kumar. The next candidate in “04” category, Roll No. 18775 (Sri Dharmendra Kumar) was recommended by the Commission for appointment.” The aforementioned stand of the respondent Commission in its counter 5 affidavit has not been controverted by the petitioner and therefore, it becomes clear that it was the fault on the part of the Commission in making its recommendation and for that, the respondent no.7 could not have been made to suffer. Admittedly, the petitioner was the last candidate appointed in the backward category and if any one including respondent no.7 having higher marks was found to be ignored, he had to be appointed in preference to the petitioner. Consequently, this Court would not find any error in the impugned order removing the petitioner from service for accommodating the respondent no.7. The remaining submission of Mr. Shukla that there were more vacancies on which the petitioner vis-à-vis the respondent no.7 both could have been adjusted also does not appear to be factually correct for a simple reason that the Commission had recommended 52 candidates and appointment was also made against all 52 vacancies in the backward (05) category as has been explained by the Respondent District Superintendent of 6 Education in his separate counter affidavit reads as follows:- "That so far as the statement made in paragraph no. 16 and 17 of the writ petition the deponent humbly states and submits that the B.P.S.C. recommended the name of total 52 candidates in the reservation category no. 05. All these 52 candidates have been appointed. Now, there is not even a single vacancy. Therefore, the question of appointment of the petitioner does not arise." Thus even this part of grievance of the petitioner is wholly misconceived and cannot be accepted. That being so, this Court would not find any merit in this writ application and the same is accordingly dismissed. Rsh (Mihir Kumar Jha, J.)