IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8370 of 2003 MAHENDRA MANDAL, son of late Deonath Mandal, resident of village Gulalpur, District Munger … Petitioner Versus 1. THE STATE OF BIHAR through the Secretary, Secondary Education, Govt. of Bihar, Vikash Bhawan, Patna 2. The Director, Secondary Education, Govt. of Bihar, Patna 3. The Vidyalaya Seva Board, Patna, through its Chairman … Respondents ----------- 6. 27.9.2010 Learned counsel for the State produces the Receipt No. 534 dated 21.9.2010 to contend that the order of this Court with regard to deposit of Rs. 5000/- has been complied by making payment on 21.9.2010 but due to inadvertence on the part of the person accepting such payment the case number has been wrongly recorded as C.W.J.C.No. 8770 of 2003 which ought to have been C.W.J.C.No. 8370 of 2003 inasmuch as the other details of this case including the party name and the order of this Court has been correctly noted. The said clerical error in the case number in the receipt is directed to be ignored. Let such receipt be kept on record. Heard counsel for the petitioner and the counsel for the State as with regard 2 to the following relief: “This is an application for issuance of an appropriate writ/order/ direction commanding upon the respondent authorities to appoint the petitioner as an Assistant Teacher (Hindi) pursuant to his selection and recommendation by the Vidyalaya Seva Board against the Advertisement No. 2/91.” Counsel for the petitioner would submit that the name of the petitioner was recommended by the Vidyalaya Seva Board on 22.1.1997 by Annexure 8 to the writ application pursuant to Advertisement No. 2 of 1991 for appointment on the post of Assistant Teacher in the subject of Hindi under disabled category with nine other persons in order of merit and the appointment from the said panel of physically handicapped disabled category was made pursuant to the order of this Court dated 24th July, 2000 in C.W.J.C.No. 1501/99 which was also affirmed by the Division Bench of this Court in the order dated 20.12.2002 in L.P.A.No. 1570/2000. It has been further explained by Dr. Mayanand Jha, 3 learned counsel appearing for the petitioner, that as amongst 10 candidates so recommended by the Vidyalaya Seva Board the name of the petitioner figured at Sl.No. 5 and the person placed below the petitioner, namely, Manoj Kumar, was one amongst four persons, who were so appointed on the basis of panel upon a direction given by this Court and therefore, the respondents in all fairness ought to have appointed the petitioner placed above the aforesaid Manoj Kumar when the order was issued on 14th February, 2004, during the pendency of this writ application which was filed on 18.8.2003. In this context reliance was also placed by the learned counsel on a judgment of the Apex Court in the case of K.I.Shephard & ors. Vs. Union of India & ors., reported in AIR 1988 S.C. 686, laying down a law that similarly situated persons who had not moved the court should not be deprieved the consequence and benefit of a decision of a court of law and in no event they could be penalized for not moving the court. 4 As noted above, though this writ application was filed on 18.8.2003 and was repeatedly adjourned for enabling the State to file counter affidavit on 4.5.2005, 4.7.2005 and 3.9.2010, such counter affidavit has been filed only recently on 13.9.2010 and that too when the respondents were imposed a cost of Rs. 5,000/-. In the said counter affidavit the fact that the petitioner figured in the panel above aforementioned Manoj Kumar already appointed on 14th February, 2004 is not being disputed. It is, however, stated in the counter affidavit that the panels sent by the Vidyalaya Seva Board itself was invalid, inasmuch as neither in the advertisement there was a provision for reservation of physically handicapped disabled category nor after the first recommendation was already made by the Commission and also acted upon by appointing those persons, there was any justification of sending another list of 10 candidates of disabled category. It has further been pointed out that the vacancy on the post of Assistant Teacher in Hindi for the advertisement in question has already 5 been filled up and therefore, when now the whole scheme of appointment has also undergone a change, it would be difficult for the State and its officials to appoint the petitioner on the basis of a recommendation made in terms of Advertisement No. 2 of 1991. In the opinion of this Court, the issue of validity of the panel of 10 disabled physically handicapped candidates or there being no provision for reservation for them in the advertisement no. 2/1991, having been already settled by the Division Bench of this Court while affirming the order of the learned Single Judge in the case of Manoj Kumar (supra), this Court is now not required to once again dwell upon the same, inasmuch as the Division Bench had held as follows: “8.Certain documents have been filed before us to show that how the Board referred the lists. Letter No. CH 50 dated 22.1.1997 is the covering letter recommending a list of 363 persons. These 363 persons belonged to the different category. Vide letter No. CH 51 dated 22.1.1997 another list of 6 handicapped persons was sent. Letter No. CH 51 dated 22.1.1997 clearly shows that under letter no. CH 50 the merit list has been sent and under letter no. CH 51, a list of handicapped persons was sent. A juxtapose reading of the two letters bearing nos. CH 50 and CH 51 would make it clear that the lists were not additional lists or supplementary list. In fact the lists were separate lists- one was in relation to the General candidates while the other was relating to the reserved category/ handicapped persons. If the argument of the State Govt. is accepted then it would give a thunderbolt to the policy of Reservation Acts, because, list of any other reserved class, if is sent separately, then that would be deemed to be a supplementary list and if the argument of the State is accepted then the Board would not be entitled to recommend the names under any other list. A supplementary list or any additional list are something very different from a separate list. In a given case where reservations are available, separate lists are required to be prepared. Such persons in fact hold their own merit position in their own class. 7 It cannot be said by the State Govt. that the Board became functus officio after sending the list under letter no. CH 50 and therefore, was not entitled to send any other list. In the present case, list of 363 persons was the list of general candidates and persons belonging to Backward Class, Extremely Backward Class, Scheduled castes and Scheduled Tribes and so. It did not include the names of handicapped persons. The Board must have thought that the handicapped persons are of different categories therefore be listed separately. The argument raised by the State Govt. is misconceived. 9. It was not disputed before us that vide memo No. 347 dated 7.6.1986 of the Personnel and Administrative Reforms Department, the State Govt. had taken a policy decision to provide for three per cent reservation to the handicapped in appointment of Class III and Class IV posts. That was a case of reservation and not of persons stand on the same footing then a preference could be given to a reserved category persons and he would be deemed to be better in comparison to another though, in fact he is equal to another. The 8 preference simply provides a better prospect to one who is otherwise equal to another. In case of reservation, the others are altogether excluded from consideration. The reservation is a class apart. Any person who does not belong to the particular cadre would not be allowed to enter into the reserved zone. When the State Govt. had already taken the decision to reserve three per cent post for appointment for the handicapped then the question of preference would become academic only. In the present matter, undisputedly the reservation would apply with full force. The learned Single Judge was certainly justified in granting the writ in favour of the petitioners.” In view of the aforesaid judgment of the Division Bench with regard to the same panel this Court would find little scope to take a different view as with regard to the validity of panel of 10 candidates and the consequential appointment made from it. The next question that there has been subsequent change on account of framing of Rules in the year 2006 and/or lack of 9 vacancies for appointment of the petitioner also cannot be used at least against the petitioner, who has moved this Court way back on 18.8.2003 by filing this writ application even before appointment of other four candidates including Manoj Kumar placed below the petitioner from the same panel was made on 14.2.2004. It has to be noted that both Manoj Kumar and the petitioner belong to the general category and therefore, once the appointment of Manoj Kumar was made, the petitioner’s case could not have been left over and to that extent reliance placed by the petitioner on the judgment of Shephard’s case (supra) is apt and appropriate, wherein it was held as follows: “ … … … Some of the excluded employees have not come to Court. There is no justification to penalize them for not having litigated. They too shall be entitled to the same benefit as the petitioners. … …” The only other plea advanced by the learned counsel for the State that since one more person who was above the petitioner as also Manoj Kumar, namely, Smt. Saroj Kumari Chaurasia was not given such a relief by 10 this Court and the matter was remitted back to the authority to reconsider the matter in C.W.J.C.No. 1255/2005 and the authority by an order dated 27.7.2010 had rejected such claim of Smt. Saroj Kumari Chaurasia should also weigh for rejecting the prayer of the petitioner also does not appeal to this Court. It has to be kept in mind that whatever reasons have been given in the order of Smt. Saroj Kumari Chaurasia by the Director, Secondary Education while rejecting her claim by an order dated 27.7.2010 are in teeth of the judgment of the Division Bench or distinction made as with regard to appointment of four persons including Manoj Kumar by labeling them to be appointment in terms of the Court’s order can hardly be a justification for leaving the candidates whose names were above them in the merit list. It was well open for the respondents to appoint only four persons if there were only four vacancies in the subject of Hindi as on 14.2.2004 by strictly following the merit position in the panel submitted by the Vidyalaya Seva Board but of a person like Manoj Kumar placed below in 11 the panel was appointed the petitioner being above the panel on merits cannot be denied his appointment as it is well settled that merit position in a panel cannot be ignored by appointing a person placed below in the merit list by denying appointment to a person rending above in the merit list. Reference in this connection may be made to the judgment of Apex Court in the case of G. Channabasavaith and others Vs. State of Mysore and others reported in AIR 1965 S.C. 1293. The issue that 1991 advertisement should not be acted upon in the year 2010 also does not impress this Court in view of large number of precedence furnished by the petitioner showing appointments on the same advertisement to have been made even up to the year 2006 whereas the writ petition was filed in 2003. More over, there can be no justification in denying a more meritorious candidate like the petitioner placed above in the panel at sl. no. 5 in preference to Manoj Kumar, who was at Sl.No.6 of the panel and yet was favoured with the appointment in terms of the direction of this Court. In all 12 fairness the respondents themselves ought to have appointed the petitioner in the same transaction especially when the petitioner also belongs to the general category as was the case of Manoj Kumar. There being no difference in the case of Manoj Kumar and that of the petitioner and the appointment of Manoj Kumar having been already made, this Court has no option but allow this writ application by directing the respondents to appoint the petitioner within a period of three months from the date of receipt/ production of a copy of this order. It is made clear that while the petitioner would not be entitled for salary for the earlier period from the date of appointment of Manoj Kumar but he shall always rank senior to Manoj Kumar and that his pay vis-a-vis Manoj Kumar will be protected in terms of Rule 78 of the Bihar Service Code. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/ 13