IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.41 of 1999 In the matter of application under Article 226 of the Constitution of India. 1. KAMALDEO PANDEY SON OF LATE MAHIPAL PANDEY RESIDENT OF DIHRI, P.S. BIHTA, DISTRICT PATNA. 2. SATYA NARAYAN SINGH SON OF LATE DWARIKA SHARMA RESIDENT OF MAHMADPUR, P.S. NAUBATPUR, DISTRICT PATA. 3. RAM NARESH PANDEY SON OF RAJ NANDAN PANDEY RESIDENT OF PANDEYCHAK, P.S. BIHTA, DISTRICT PATNA. 4. SAIYED MD. ABDUL RAHMAN SON OF SAIYAD AZIZOOR RAHMAN, RESIDENT OF MIHURA, P.S. PHULWARISHARIF, DISTRICT PATNA. 5. SANTOSH KUMAR SINHA SON OF MADAN MOHAN PRASAD RESIDENT OF EAST LOHANIPUR (RAILWAY HANTUR ROAD), P.S. KADAMKUAN, DISTRICT PATNA. 6. AWADH BIHARI DWIVEDI SON OF LATE BALDEO DWIVEDI RESIDENT OF MOHAN CHAK, P.S. BIKRAM, DISTRICT PATNA. 7. UPENDRA KUMAR SINGH SON OF LATE RAM BILASH SINGH RESIDENT OF RANABIGHA, P.S. BARH DISTRICT PATNA. 8. INDRADEO PRASAD SINGH SON OF LATE JAGARNATH SINGH RESIDENT OF RANABIGHA, P.S. BARH, DISTRICT PATNA. 9. MADAN MOHAN PRASAD SON OF LATE BHUBNESHWAR PREASAD SINGH RESIDENT OF RANABIGHA, P.S. BARH DISTRICT PATNA. 10. BIMAL PRASAD SINGH SON OF LATE MANKI SINGH RESIDENT OF SULTANPUR, P.S. MOHIUDDIN NAGAR, DISTRICT SAMASTIPUR. 11. BINOD KUMAR SINGH SON OF LATE BALESHWAR PRASAD SINGH RESIDENT OF MALAHI, P.S. BARH, DISTRICT PATNA. Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY, DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS, GOVT. OF BIHAR, PATNA. 2. THE DIVISIONAL COMMISSIONER, PATNA DIVISION, P.S. GANDHI MAIDAN, PATNA TOWN DISTRICT PATNA. - 2 - 3. THE DISTRICT MAGISTRATE, PATNA. 4. SHAMBHU PRASAD SINHA SON OF NOT KNOWN TO THE PETITIONERS. 5. DIWAKAR PRASAD SINGH SON OF NOT KNOWN TO THE PETITIOERS 6. KISTO PRASAD SON OF NOT KNOWN TO THE PETITIONERS 7. SHAMBHU DAS SON OF NOT KNOWN TO THE PETITIONERS. 8. JAGDISH SAH SON OF NOT KNOWN TO THE PETITIONERS. 9. RAJENDRA MANDAL SON OF NOT KNOWN TO THE PETITIONERS. 10. OM PRAKASH CHAURASIA SON OF NOT KNOWN TO THE PETITIONERS. 11. SHIVJEE PREASAD SINGH SON OF NOT KNOWN TO THE PETITIONERS. 12. JUGUTI PANDIT SON OF NOT KNOWN TO THE PETITIONERS. 13. LALAN SAO SON OF NOT KNOWN TO THE PETITIONERS 14. SHAYAM KISHORE PRASAD SON OF NOT KNOWN TO THE PETITIONERS. 15. AYODHAYA PRASAD SON OF NOT KNOWN TO THE PETITIONERS 16. SHIV PRASANNA SINGH SON OF NOT KNOWN TO THE PETITIONERS. 17. JAGDISH PRASAD SHARMA SON OF NOT KNOWN TO THE PETITIONERS. 18. RAM CHANDRA PRASAD SON OF NOT KNOWN TO THE PETITIONERS. 19. DEENA NATH RAM SON OF NOT KNOWN TO THE PETITIONERS. 20. ANIL KUMAR SON OF NOT KNOWN TO THE PETITIONERS. 21. SMT. PRAMILA DEVI WIFE OF NOT KNOWN TO THE PETITIONERS. 22. BINOD KUMAR SON OF NOT KNOWN TO THE PETITIONERS. 23. RAJESH KUMAR SON OF NOT KNOWN TO THE PETITIONERS. 24. RAMADHAR PRASAD SON OF NOT KNOWN TO THE PETITIONERS. - 3 - 25. BRAHMDEO SINGH SON OF NOT KNOWN TO THE PETITIONERS. 26. SURESH RAI SON OF NOT KNOWN TO THE PETITIONERS. 27. BHUSHAN SINGH SON OF NOT KNOWN TO THE PETITIONERS. 28. BHOLA PRASAD YADAV SON OF NOT KNOWN TO THEPETITIONERS. 29. RAM SAKAL PRASAD SON OF NOT KNOWN TO THE PETITIONERS. 30. RAM DAYAL PRASAD SON OF NOT KNOWN TO THE PETITIONERS. 31. DAMODAR PRASAD SINGH SON OF NOT KNOWN TO THE PETITIONERS. 32. BABAN PRASAD SON OF NOT KNOWN TO THE PETITIONERS. 33. DWARIKA SAH SON OF NOT KNOWN TO THE PETITIONERS. 34. AKIL AHMAD SON OF NOT KNOWN TO THE PETITIONERS. 35. RAMANAND SAH SON OF NOT KNOWN TO THE PETITIONERS. 36. SURENDRA PRASAD YADAV SON OF NOT KNOWN TO THE PETITIONERS. 37. ARJUN PRASAD SON OF NOT KNOWN TO THE PETITIONERS. 38. RAJA PRASAD YADAV SON OF NOT KNOWN TO THE PETITIONERS. 39. RAM PRAVESH YADAV SON OF NOT KNOWN TO THE PETITIONERS. 40. RAMBALI PRASAD SON OF NOT KNOWN TO THE PETITIONERS. 41. RAJ KUMAR PRASAD SON OF NOT KNOWN TO THE PETITIONERS. 42. BINOD KUMAR SAO SON OF NOT KNOWN TO THE PETITIONERS. 43. RAM BABOO VERMA SON OF NOT KNOWN TO THE PETITIONERS. RESPONDENT NOS. 4 TO 33 ARE AT PRESENT WORKING UNDER THE DIRECT CONTROL OF RESPONDENT NO. 3 IN THE DIFFERENT OFFICE OF THE PATNA DISTRICT. with CWJC No.2102 of 1999 - 4 - RABINDRA MISHRA SON OF SRI SATYA NARAIN MISHRA RESIDENT OF VILLAGE BANSARA (TOLA KAMALDAH) P.O. PACHADHI, P.S. RAIYAM (SUGAR FACTORY), DISTRICT DARBHANGA AT PRSENT WORKING IN PATNA COLLECTORATE, PATNA. Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY, DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS, GOVT. OF BIHAR, PATNA. 2. THE DIVISIONAL COMMISSIONER, PATNA DIVISION, P.S. GANDHI MAIDAN, PATNA TOWN DISTRICT PATNA. 3. THE DISTRICT MAGISTRATE, PATNA. 4. SMT. RAJ BALA VERMA, THE THEN DISTRICT MAGISTRATE, PATNA. 5. SHAMBHU PRASAD SINHA SON OF NOT KNOWN TO THE PETITIONERS. 6. DIWAKAR PRASAD SINGH SON OF NOT KNOWN TO THE PETITIONERS. 7. KISTO PRASAD SON OF NOT KNOWN TO THE PETITIONERS 8. SHAMBHU DAS SON OF NOT KNOWN TO THE PETITIONERS. 9. JAGDISH SAH SON OF NOT KNOWN TO THE PETITIONERS. 10. RAJENDRA MANDAL SON OF NOT KNOWN TO THE PETITIONERS. 11. OM PRAKASH CHAURASIA SON OF NOT KNOWN TO THE PETITIONERS. 12. SHIVJEE PREASAD SINGH SON OF NOT KNOWN TO THE PETITIONERS. 13. JUGUTI PANDIT SON OF NOT KNOWN TO THE PETITIONERS. 14. LALAN SAO SON OF NOT KNOWN TO THE PETITIONERS 15. SHAYAM KISHORE PRASAD SON OF NOT KNOWN TO THE PETITIONERS. 16. AYODHAYA PRASAD SON OF NOT KNOWN TO THE PETITIONERS 17. SHIV PRASANNA SINGH SON OF NOT KNOWN TO THE PETITIONERS. 18. JAGDISH PRASAD SHARMA SON OF NOT KNOWN TO THE PETITIONERS. 19. RAM CHANDRA PRASAD SON OF NOT KNOWN TO THE PETITIONERS. - 5 - 20. DEENA NATH RAM SON OF NOT KNOWN TO THE PETITIONERS. 21. ANIL KUMAR SON OF NOT KNOWN TO THE PETITIONERS. 22. SMT. PRAMILA DEVI WIFE OF NOT KNOWN TO THE PETITIONERS. 23. BINOD KUMAR SON OF NOT KNOWN TO THE PETITIONERS. 24. RAJESH KUMAR SON OF NOT KNOWN TO THE PETITIONERS. 25. RAMADHAR PRASAD SON OF NOT KNOWN TO THE PETITIONERS. 26. BRAHMDEO SINGH SON OF NOT KNOWN TO THE PETITIONERS. 27. SURESH RAI SON OF NOT KNOWN TO THE PETITIONERS. 28. BHUSHAN SINGH SON OF NOT KNOWN TO THE PETITIONERS. 29. BHOLA PRASAD YADAV SON OF NOT KNOWN TO THE PETITIONERS. 30. RAM SAKAL PRASAD SON OF NOT KNOWN TO THE PETITIONERS. 31. RAM DAYAL PRASAD SON OF NOT KNOWN TO THE PETITIONERS. 32. DAMODAR PRASAD SINGH SON OF NOT KNOWN TO THE PETITIONERS. 33. BABAN PRASAD SON OF NOT KNOWN TO THE PETITIONERS. 34. DWARIKA SAH SON OF NOT KNOWN TO THE PETITIONERS. 35. AKIL AHMAD SON OF NOT KNOWN TO THE PETITIONERS. 36. RAMANAND SAH SON OF NOT KNOWN TO THE PETITIONERS. 37. SURENDRA PRASAD YADAV SON OF NOT KNOWN TO THE PETITIONERS. 38. ARJUN PRASAD SON OF NOT KNOWN TO THE PETITIONERS. 39. RAJA PRASAD YADAV SON OF NOT KNOWN TO THE PETITIONERS. 40. RAM PRAVESH YADAV SON OF NOT KNOWN TO THE PETITIONERS. 41. RAMBALI PRASAD SON OF NOT KNOWN TO THE PETITIONERS. - 6 - 42. RAJ KUMAR PRASAD SON OF NOT KNOWN TO THE PETITIONERS. 43. BINOD KUMAR SAO SON OF NOT KNOWN TO THE PETITIONERS. 44. RAM BABOO VERMA SON OF NOT KNOWN TO THE PETITIONERS. RESPONDENT NOS. 5 TO 44 ARE AT PRESENT WORKING UNDER THE DIRECT CONTROL OF RESPONDENT NO. 3 IN THE DIFFERENT OFFICE OF THE PATNA DISTRICT. ----------- For the Petitioners :- Mr. Basant Kumar Chaudhary, Sr. Advocate, & Mr. Kripa Nath Jha For the State :- Mr. Hari Shankar Roy, A.C. to AAG II For the Private respondents :- Mr. Amber Nath Banerjee. ------ P R E S E N T THE HON’BLE MR. JUSTICE AJAY KUMAR TRIPATHI ------- A.K.Tripathi,J. In C.W.J.C. No. 41 of 1999 it is stated that petitioner nos. 1 and 4 have died. This writ application has become infructuous in so far as they are concerned. Both the writ applications have been heard together and are being disposed of by this common order since there are common decision taken by the respondents wherein promotion on Class III posts have come to be granted from the cadre of Class IV posts working in the Patna Collectorate. The order of promotion is dated 1.12.1998 and that promotion order - 7 - has been seriously challenged on behalf of these petitioners on the ground that a deliberate effort had been made by the respondents to deny the benefit of promotion to these petitioners on a wrong working of the vacancy position as well as the roster clearance given on the wrong figure of the vacancy. According to the petitioners, one of the earliest document contained in annexure-1 would show that there were 49 posts to be filled up in Class III category of which reservation position indicated was un- reserved-23, Scheduled Caste -8, Scheduled Tribes-3, O.B.C.-8, B.C. -6 and women of B.C. category -1. But when the final promotion order was issued, the respondents changed the vacancy position drastically saying that on roster clearance having been obtained, the vacancy position with regard to un-reserved category was re-worked at 3 and appointments have been made accordingly. Some basic facts are that all those persons who were otherwise eligible and working on Class IV posts became entitled for promotion to the next higher post of Class III category provided they clear the requisite - 8 - examination held in this regard which was a limited competitive examination. Various persons qualified and became claimants, including the present petitioners, based on the vacancy position as on 13.12.1993. But in a complete turn around this vacancy position and the roster clearance was re-worked and appointments came to be made by the respondents by reducing the number of posts available in un-reserved category to only 3 and allotting the rest of the posts to various other reserved categories. Initially when the counter affidavit was filed by the respondents, they took a position that on 12.11.1998 there were only 579 posts available and the roster clearance was taken on the basis of that vacancy but the petitioners did their home work, obtained information through various official sources and they annexed Annexures 15 and 16 to show that actually the total strength of the cadre was 632 and promotions had to be worked out on the basis of 632 posts and not 579. The respondents stuck to the position of the strength being 579. It was then that the petitioners decided to - 9 - file I.A. No. 5123 of 2001 praying to the Court to initiate a contempt proceeding against the respondents for filing false affidavit. The factual position tumbled out in a supplementary counter affidavit which was duly sworn by a Deputy Collector (Establishment) of the Collectorate. This affidavit sworn on behalf of respondent no. 3 was filed on 13.11.2001. In the said supplementary counter affidavit the details and breakup of the total strength came to be narrated beginning from paragraph 3 and the final position has been indicated or crystallized in paragraph 10 of the said affidavit. This affidavit categorically states that the total number of posts based on the sanctioned strength was 632. Documents in support thereof has also been annexed as Annexures E, F & G to the supplementary counter affidavit. It also states that there were 56 other temporary posts but those posts were not to be filled up from fresh appointment but to be filled up from surplus staff working in the different departments of the State of Bihar. This affidavit still stands. It has neither been withdrawn nor modified or explained by any other - 10 - affidavit. Learned counsel for the petitioners submits that this position, in fact, stands reiterated in the show cause which came to be filed to the I.A. application for initiation of the contempt proceeding. If this position is accepted, then obviously the earlier affidavits filed on behalf of the respondents, specially respondent no. 3 did not state the correct state of affairs. Obviously, it was a deliberate attempt on behalf of the respondents to cover up omission in matters of granting promotion to the persons who may not be eligible to occupy that post based on the vacancy position and the roster clearance. Jugglery was made to accommodate persons for erroneous consideration, may have been at the level of the then District Magistrate, Patna. Attention of the Court has also been drawn to annexure-6 which is a communication of the Commissioner, Patna Division directed to the Collector, Patna expressing his displeasure on the roster clearance which was sought to be taken from him because it did not indicate the entire facts and the details which were required to be looked into before - 11 - grant of the roster clearance at his level but it seems that the District Magistrate ignored such a direction, went ahead with the appointments and made appointments which is the order dated 1.12.1998. Learned counsel for the State submits that the facts speak for themselves. The figure and the affidavits are there and he cannot improve upon the same. On a closer questioning, he does accept the position that variation in the working strength is there and both kind of affidavits are there on record. He is not in a position to either deny or in any manner dislodge the stand taken by the petitioners that the total posts from which promotions had to be made stood at 632 as on 30.06.1996 and this position has not been altered in any manner. Learned counsel representing the private respondents says that promotions have been given on the basis of the decision rendered by the Hon’ble Supreme Court in Sabharwal’s case. Said promotions, therefore, must stand and no interference is warranted. The question is not applicability of any law settled by any Court muchless the Hon’ble Supreme - 12 - Court. Here the question is whether promotions have been given based on a so called roster clearance by reflecting the true strength of the cadre and the vacancies which had to be filled up based on the offer of figures. Figure of 579 initially stated by the respondents does not seem to be true or correct. Actual figure does emerge to be 632. Obviously, if there is variance of figures to the extent noted above, the whole exercise of taking roster clearance for filling up vacant posts will be topsy turvy and will not reflect the true state of affair. Learned Senior Counsel representing the petitioner seems to be correct in asserting that there was lack of bona fide in matters of grant of promotion and the manner in which such an exercise was carried out by the then District Magistrate. The affidavits and the position have finally emerged when the Court took a dim view of the earlier statement made in the initial counter affidavit filed on behalf of the State. Obviously, the Officer in question has tried to cover up, deliberately or otherwise by misleading the Court by getting false affidavits filed in this regard. The Court - 13 - deprecates such an action or conduct on the face of it. Both the writ applications are allowed. Orders of promotion contained in annexure-9 series are hereby quashed and the matter is remanded back to the District Magistrate, Patna that taking strength of the cadre to be 632, he shall obtain a fresh roster clearance from the concerned authority and thereafter issue a fresh notification granting promotion to all those who are eligible based on the vacancy position and the reservation position emerging from the roster clearance. All these exercises must be completed within a period of six months from the date of communication or production of a copy of this order. (Ajay Kumar Tripathi, J.) Patna High Court, The 23rd September, 2010. AMIN/ (N.A.F.R.)