IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13745 of 2003 1. AJIT KUMAR PRASAD S/O LATE ALAKH SUNDAR PRASAD, R/O SUNDAR BHAWAN, KACCHI TALAB, POLICE STATION-GARDANIBAGH, DISTRICT- PATNA. 2. JAI PRAKASH NARAYAN SINGH, S/O LATE SRI JAGDISH NARAIN SINGH, R/O BAHADURPUR, NEAR BAZAR SAMITTEE, POLICE STATION- SULTANGANJ, DISTRICT-PATNA. ………….Petitioners Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVERNMENT OF BIHAR, PATNA. 2. CHIEF SECRETARY, GOVERNMENT OF BIHAR. 3. SECRETARY, DEPARTMENT OF SECONDARY, PRIMARY AND ADULT EDUCATION, GOVERNMENT OF BIHAR, PATNA. 4. SECRETARY, DEPARTMENT OF ART, CULTURE AND YOUTH AFFAIRS. 5. DIRECTOR (ADMIINISTRATION)-CUM-JOINT SECRETARY, DEPARTMENT OF SECONDARY, PRIMARY AND ADULT EDUCATION, GOVERNMENT OF BIHAR, PATNA. ………..Respondents ----------- 13 30.03.2011 Heard counsel for the petitioners and the counsel appearing on behalf of State. This matter has remained pending since 2003 for deciding a very simple question, whether petitioners’ name should be debarred from being included in the gradation list of the Bihar Education Service, Class II, since he was appointed in Bihar Education Service, Class II Cadre. Presently, petitioners are working in the Directorate of Museum and Archaeology in Art Culture and Youth Affairs Department, which admittedly is well within the Bihar Education Service Class I and Class II Cadre. This fact has not been controverted or denied by the respondents in counter affidavit and supplementary counter affidavit filed on their behalf. Simply in the impugned letter (Annexure-1), the reason for rejecting claim of the petitioners for inclusion of their 2 names in the gradation list of Bihar Education Service Class I and Class II Cadre Rules is that the Cabinet Secretariat vide resolution No. 2721 dated 04.08.1992 has resolved for bifurcation of Human Resources Development Department in three different departments, in which the Art Culture and Youth Affairs Department is also one of the department in which the petitioners are presently working. Counsel for the petitioners has stated that admittedly no separate Rules, constituting separate Cadre has been framed till date. Even, in the impugned order, it is admitted that the Secondary Primary and Adult Education Department as well as Art Culture and Youth Affairs Department are guided by the Bihar Education Service, Class I and Class II Rules. Once it is admitted, there is no reason for considering the petitioners belonging to a separate Cadre and for preparation of different gradation list of employees working in each bifurcated department. In the last counter affidavit filed on behalf of the State, it has been stated that the Rules relating to Art Culture and Youth Affairs Department, Government of Bihar has been framed being Bihar Museum Cadre Rule, 2011 and sent to the General Administration, Finance Department and Law Department for approval vide letter no. 409 dated 28.02.2011, but whether it has been approved and Rule has been notified, it is not known to the counsel appearing for State. This affidavit is indicative of this fact that till date no separate Rule, creating separate Cadre of the employees working in Art Culture and Youth Affairs Department has been framed. It 3 has also not been stated in the counter affidavit that before creation of separate Cadre of employees working in Art Culture and Youth Affairs Department, the mandatory requirement regarding seeking consent of employees have been fulfilled, unless that is done, an employee who had joined in a different Cadre, cannot be forced to be shifted to a new Cadre, created later on. For all these reasons, I find that the order contained in Memo No. 896 dated 01.08.2003 as contained in Annexure-1, rejecting claim of petitioners for inclusion of their names in the gradation list of Bihar Education Service Class II, is not sustainable. The impugned order contained in Annexure-1 is quashed. Respondents are directed to implead names of petitioners in the same gradation list, which has been prepared for the employees working in Human Resources Development Department, as petitioners are also employees of the same Cadre i.e. Bihar Education Service Cadre Class I and Class II Cadre. The respondents will take necessary recourse in this regard preferably within four weeks from the date of presentation/communication of this order. This application is accordingly allowed. Safik (Mridula Mishra, J.)