IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15127 of 2006 Chandra Shekhar Thakur, son of Sri Nawal Thakur, resident of Village and P.O. Bharat Kundi, Via Punsia, P.S. and District Banka, presently working as a Peon in the office of Sub-Divisional Education Officer, Banka. --------- Petitioner Versus 1. The State of Bihar through the Commissioner-cum-Secretary, Department of Human Resources Development, New Secretariat, Patna, Bihar. 2. The Divisional Commissioner, Bhagalpur. 3. The Regional Deputy Director of Education, Bhagalpur. 4. The District Education Officer, Banka, Dist. Banka. 5. Mr. Sanjay Kumar Ghoash, S/o not known, At present posted as Clerk, Dist. Bhagalpur, Bihar.---------- ---------- Respondents ----------- 7 29.08.2011 Having heard Mr. Dinu Kumar, learned counsel for the petitioner and Mr. Rajiv Ray, learned counsel for the State as also Miss. A. Kumari, learned counsel for the respondent no.5, this Court, in the light of the facts clarified by the Regional Deputy Director of Education, Bhagalpur in his supplementary counter affidavit filed today, this Court is satisfied that no anomaly can be said to have been committed in promoting the respondent no.5 from Class-IV to Class-III post in preference to the petitioner. The petitioner has a limited grievance that when the State Government had carved out a principle for filling up 50% post of Class-III post from Class-IV employees, he, being a senior to the respondent no.5, could not have been ignored and therefore the promotion given to the respondent no.5, admittedly junior to 2 the petitioner, cannot be sustained. In the considered opinion of this Court the filling up of Class-III post by the State Government in its Muffasil offices, which the establishment of Regional Deputy Director of Education, Bhagalpur is, has to be governed by Statutory Rules or in absence thereof, by executive instruction. Admittedly there is no Statutory Rules and the posts of Class-III from amongst Class-IV employees has always been filled up on the basis of executive instructions contained in Government Circulars issued from time to time. Infact the earleir government circulars of 1976 and 1982 Circulars were sought to be clarified by another Circular dated 16th September, 1992 wherein not only the quota of promotion from Class-IV to Class-III post was enhanced from 25% to 50% but also two modes were introduced for filling up this quota of 50% in which 25% of such posts were to be filled up strictly on the basis of seniority cum eligibility meaning thereby if a Class-IV employee had possessed the requisite qualification and was sufficiently senior, he could be appointed/promoted in the Class-III post in this 25% quota and the rest of the 25% quota was to be filled up on the basis of seniority cum merit in which the seniority was 3 to be given weightage of 60% and merit 40%. The Government in the aforesaid Circular had also clarified that since the subject of which the written test was to be conducted by way of limited departmental examination could be of 100 marks, the seniority had be considered on the Scale of 150 marks in which for each completed year of service 4.5 marks had to be given. The person in this category of 25% post was to be filled up strictly as per the total marks secured out of 250. It is in this backdrop that the Respondent have explained that when the petitioner did not qualify under the seniority quota, he had also appeared in the limited departmental examination along with the respondent no.5 and others and from its result- sheet produced by the respondents in their supplementary counter affidavit, it becomes clear that whereas the respondent no.5 among 36 Class-IV employees candidates had topped the list by securing 74 marks, the petitioner was placed at serial no.18 in view of his securing 42 marks. Today, when the broadsheet of tabulation of marks has also been produced it becomes apparent that the petitioner had secured 42 out of 100 in the written examination and his appointment being of the 4 year 1976 and the consideration being made in the year 1992 he had been given 72 marks out of 150 for sixteen completed years of his service. As against that, the respondent no.5, having secured 74 out of 100 in the written test and had been 45 out of 150 for 10 years of his completed service from 1982 to 1992. In this way the total marks secured by the respondent no.5 being 119 out of 250 and that of the petitioner being 114 out of 150 no anomaly can be said to have been committed in appointing Respondent no. 5 in the quota of 25% meant for seniority cum merit. Once this aspect becomes clear, there would be no difficulty for rejecting the rest of the case of the petitioner, inasmuch as, even if this Court would interfere with the appointment of the respondent no.5 on the basis that the Government Circular of the year 1992 being not followed in letter and spirit as no separate computation was made for the seniority quota of 25% even the result will be the same specially when the petitioner has not come out with a case that any one else in this quota of 25% of seniority was infact junior in service to the petitioner. In other words, the date of appointment of others appointed in this quota of 25% of seniority-cum-merit namely, 5 Jivan Prakash Chakrawarti, Kailash Thakur, Parshuram Prasad Rai, Naresh Prasad Singh, Pankaj Kumar Yadav, Hirendra Chakravarti and Suresh Mishra being appointed earlier to the petitioner and also having secured higher marks to the petitioner in the departmental examination, their position would not be affected in any manner. The last submission of Mr. Dinu Kumar, learned counsel for the petitioner that Bishundeo Rajak and Shivjee Chaudhary, were junior to the petitioner, and yet promoted in the seniority quota also cannot be of any help for the petitioner as both of them belong to the reserved category and for them, there was a specified quota against which their promotion was made in the 25% of seniority quota. In that view of the matter, this Court does not find any merit in this application and the same is, accordingly, dismissed. The personal appearance of the Regional Deputy Director of Education, Bhagalpur, is also dispensed with. Rsh (Mihir Kumar Jha, J.)