IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4933 of 2010 Dina Nath Paswan, son of Late Shiv Narayan Paswan, Resident of Mohalla- Raghunath Tola, P.O.- Anisabad, P.S. Gardanibagh, District- Patna, At present posted as Head Clerk, in Flood Control Design Division, No.1 , Anisabad, Patna-2. …………... Petitioner Versus 1. The State Of Bihar through the Principal Secretary, Water Resources Development Department, Government of Bihar, Patna. 2. The Secretary, Water Resources Development Department, Government of Bihar, Patna. 3. The Secretary, Finance Department, Govt. of Bihar, Patna. 4. The Secretary, Personal & Administrative Reforms Department, Govt. of Bihar, Patna. 5. The Chief Engineer, Central Design, Water Resources Department, Anisabad, Patna. 6. The Superintendent of Engineer, Flood Control Design Circle, Anisabad, Patna. 7. The Executive Engineer, Flood Control Design Division no.-1, Anisabad, Patna. .. Respondents For the Petitioner : M/s. Ramchandra Prasad Bhwati, & Md. Aslam Ansari, Advocates. For the State : Mr. S.C.-7. ----------- 3 06.09.2011 Heard the learned counsel for the petitioner and the State. 2. The petitioner is aggrieved by the order dated 19.01.2010 by which his date of promotion as a Head Clerk has been shifted from 01.01.1996 to 01.02.2003. 3. It is submitted that the petitioner was appointed as Anusevak in 1981 and a temporary correspondence clerk in 1984. Having passed the Department Accounts Examination, he was given the Junior Selection Grade on 10.10.1992 and promoted as Head Clerk on 01.01.1996. One Jagat Paswan who came to the Department on transfer at his own request, loosing 2 his seniority came to be placed at serial no. 13 while the petitioner was at serial no.7 in the seniority list dated 04.10.2005. In pursuance of C.W.J.C. No. 4348 of 2000 (Jawaharlal Vrs. State of Bihar) and C.W.J.C. No. 10207 of 2009 ( Rama Shankar Singh Vrs. State of Bihar), the respondents proceeded to re-work out the need based post identified earlier for the purposes of Head Clerk and Head Assistant. In pursuance of the same, the petitioner has now been placed below the aforesaid Sri Jagat Paswan. The seniority list dated 04.10.2005 was also prepared in pursuance of the orders of this Court in the case of Jawaharlal Vrs. State of Bihar (supra). 4. Counsel for the State from the counter affidavit submitted that in the seniority list dated 20.02.1999 Sri Jagat Paswan stood at serial no. 44 while the petitioner was at serial no. 79. The re-working of the seniority list was necessitated because of the orders of this Court in certain writ petitions. The guidelines with regard to seniority on a request transfer had been misconstrued by the authorities. Sri Jagat Paswan is not a party respondent even though the relief claimed shall affect him directly. 5. The assertion of the petitioner specific in nature of his seniority over Sri Jagat Paswan ascribed to the latters loss of seniority consequent to a request transfer and the respective placement in the seniority list on 04.10.2005 has not been denied by the respondents in the more than one counter affidavit filed 3 by them. What misinterpretation was done with regard to the Government instructions for loss of seniority in case of a request transfer to put back Sri Jagat Paswan above the petitioner has been left unexplained. The seniority list dated 04.10.2005 was also prepared after application of mind pursuant to the orders of the Court in the same writ petition upon which the impugned order relies. Yet the error allegedly committed is not stated. 6. But in absence Sri Jagat Paswan as a party respondent, it is not possible for this Court to pass any orders of a positive nature. The Court is but satisfied that the counter affidavit of the respondents raises more questions than it answers with regard to the claims of the petitioner. 7. To direct Sri Jagat Paswan to be impleaded as a respondent and then to issue notice shall not serve much of a purpose in view of the nature of the stand taken by the official respondents in their counter affidavits were substantive issues attributable to them and not Sri Jagat Paswan remain unanswered. 8. The matter is, therefore, appropriately remanded to the respondent no.5, who shall proceed to grant a hearing to the petitioner and Sri Jagat Paswan in presence of each other and then pass final appropriate orders on the issue of their seniority. The impugned order dated 19.01.2010 shall abide by the same. While taking such decision respondent no.5 cannot take a stand at variance with or contradictory to that taken on behalf of the 4 State in the various counter affidavits filed before this Court or that which may have been left unanswered amounting to an admission by applying the principles of non traverse. 9. Let such determination be done in the aforesaid manner by a reasoned and speaking order within a maximum period of three months from the date of receipt/production of a copy of this order. 10. All other aspects including that of recovery shall naturally abide by such fresh decision. 11. The application stands disposed. Md. Ibrarul ( Navin Sinha, J.)