IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6447 of 1996 HARI SHANKAR PRASAD VERMA, son of Shri Ramchandra Prasad Verma, resident of Mohalla Golapatti, Dalsingsarai, P.S. Dalsingsarai, District Samastipur … Petitioner Versus 1. THE STATE OF BIHAR through the Commissioner, Darbhanga Division, Darbhanga 2. The Collector cum District Magistrate, Samastipur 3. The Sub-divisional Officer, Rosera 4. Shri Dayanand Prasad Singh, son of late Jageshwar Prasad Singh, resident of village Khalispur, P.S. Sarairanjan, District Samastipur at present posted as Assistant in General Section Office of the District Magistrate, Samastipur 5. Shri Mayanand Lal, name of father not known to the petitioner at present posted in the office of the District Magistrate, Samastipur 6. Shri Janak Choudhary, name of father not known to the petitioner at present posted as Assistant in the office of Sub-divisional Officer, Rosera … Respondents ----------- 10. 10.5.2011 Heard Mr. R.N.Mukhopadhaya, learned counsel for the petitioner and the counsel for the State. The prayer of the petitioner in this writ application, initially when it was filed on 5.7.1996, had read as follows: “1. That this writ petition is for a direction against the part order dated 5.2.1996/ 11.5.1996 passed by the respondent- Commissioner, Darbhanga Division, Darbhanga, in Service Appeal No. 29/93-94 by which the respondent- Commissioner has rejected the claim of the 2 petitioner without application of mind. 2. That the petitioner further prays for a direction on the respondents to implement the office order issued by the Collector, Samastipur under Memo No. 492 dated the 21st June, 1996, by which Class III posts was earlier filled up from amongst different Class IV employees by way of promotion/ re- appointment on the ground of compassionate appointment and thereby not to allow those 9 incumbents who have been reverted by order dated 21st June, 1996 and to consider the said posts for promotion from amongst the eligible candidates like the petitioner. 3. That the petitioner also prays for a direction on the respondents to provide the consequential benefits of promotion including the arrears of salary, fixation of pay scale etc.” Subsequently by an amendment petition filed by the petitioner on 16.9.1996 in addition to the aforementioned reliefs prayer had also prayed for the following relief:- “For direction against the office order dated 9.9.1996 (Annexure 12) 3 issued by the respondent- Collector, Samastipur by which 9 persons, who are junior to the petitioner, have been appointed against Class III post by giving second time benefit on compassionate ground. If necessary, the petitioner be allowed to add those 9 persons, whose names are appearing in Annexure 12 as party respondent or at least one person as representative capacity, as party respondent.” It has to be noted that though no order had been passed on this amendment petition but subsequently another I.A.No. 2418/1997 had been filed wherein the petitioner had prayed for impleadment of Dayanand Prasad Singh, Mayanand Lal and Janak Choudhary in representative capacity and such prayer was allowed, whereafter they were impleaded as respondents no. 4, 5 and 6 to this writ application and notices were also issued to them respondents no. 4, 5 and 6 but despite valid service on them no separate counter affidavit has been filed by them though a intervention petition being I.A.No. 741/1997 has been filed by 4 Respondent no. 4 however, has not been represented by his counsel in course of hearing which this case was taken up for hearing Yesterday and was also continued today. The main relief prayed by the petitioner in this writ application as with regard to challenge to the order passed by the appellate authority as contained in Annexure 1 being based on challenge to promotion to 14 class IV employees on Class III post has however to be rejected, inasmuch as no error could be shown by learned counsel for the petitioner in the decision of the Establishment Committee as with regard to preparation of panel of 14 persons for their promotion against year- marked 21 post. In this context though Mr. Mukhopadhaya had attempted to make out a case that when out of 42 vacant posts, 21 of them were to be filled up by following procedure laid down in the Government circular dated 16.9.1992, 11 posts cut of them should have been year-marked for the 5 general category and filled up only by following the prescribed roaster and reservation by allowing persons of general category at Sl.Nos. 1st, 5th, 7th, 9th, 10th and 11th post, Scheduled Caste on 2nd and 8th post, M.B.C. on 3rd post, Scheduled Tribe on 4th post and Backward Caste on 6th post, this Court would find it difficult to accept such submission in view of the fact that the moment 10 out of total 21 post were year- marked for the reserved category there could have been no further reservation in the general category. True it is that if a person of from the reserved category would secure total marks higher then a person of general category he could be selected and appointed against a post of general category but that will never mean that such filling up posts of general category the basis of applying principles of reservation. The principle of law in this regard is very clear that when a selection process is undertaken for both unreserved and reserved category, if a candidate of the reserved category would secured higher marks than a 6 candidate of unreserved category he could be treated as a candidate of unreserved category and to that extent this Court would not find any flaw in the selection and appointment of Baidyanath Sharma, Md. Latif Rajak, Kusheshwar Sah, Ram Kumar Mehta, Dinesh Singh, Chandeshwar Paswan, Ganga Prasad Shah and Sunil Das in the category of 11 posts year-marked for general category inasmuch as all these persons had secured much higher marks than the petitioner and other candidates of general category who could not be appointed due to want of vacant posts in general category. Once this aspect becomes clear this Court would also not find any merit in rest of the submission of learned counsel for the petitioner as with regard to selection and appointment of Ram Chandra Rajak, Laxmi Prasad and Ram Narain Sahni who were definitely appointed in their category against reserved posts for Scheduled Caste, Most Back Category and backward category respectively. To that extent this Court will have also no difficulty in holding that the 7 selection made by the competent authority was strictly in accordance with the circular dated 16.9.1992 which in no uncertain terms prescribes that though the seniority has to be given weightage but then their interse merit has also to be adjudged on prescribed ratio of 60:40 seniority and marks respectively. This Court for that purpose has also examined the evaluation and preparation of panel and has found that the panel was prepared strictly on the basis of norms fixed in the government circular dated 16.9.1992 and therefore, rejection of the case of the petitioner in the first round due to his being placed below in the panel does not suffer from any error and to that extent the following finding of the Commissioner in his appellate order: ^^vfHkys[k dk voyksdu fd;kA ftyk inkf/kdkjh] leLrhiqj dk i=kad 521 fnukad 1-9-95 ns[kkA blds lkFk ftykf/kdkjh us fnukad 16-8-95 dks funs'kkuqlkj lfefr dh cSBd dhA bl ij fd;s x;s fopkj ,oa dkjZokbZ dh izfr mUgksaus Hkstk gS] ftldh dafMdk&1 eas vafdr gS fd dkfeZd ,oa iz'kklfud lq/kkj foHkkx] fcgkj] iVuk ds ifji= la[;k 335 fnukad 16-9-92 esa fufgr funs'kkuqlkj lhfer izfr;ksfxrk ijh{kk ds vk/kkj ij ;ksX;rk lwph cukbZ x;h ftlesa dqy miyC/k fjfDr;ka 42 inksa ds fo:n~/k 21 inksa dks inksUufr ls Hkjuk FkkA ;ksX;rk lwph esa vkosnd dk uke dzekad 22 ij FkkA ojh;rk lwph esa ls 11 inkasa ij ojh;rk vuqlkj vkj{k.k ds izko/kkuksa dks ns[krs gq, prqFkZ oxhZ; deZpkfj;ksa dks 8 r`rh; Js.kh ds deZpkjh ds in ij inksUufr nh x;h] rFkk muds vkosnu i= dks vLohd`r dj fn;k x;kA** also does not suffer from any error. Having thus held that the petitioner is not entitled for the relief originally prayed by him, this Court must also address to the amended prayer as with regard to anomaly in filling up rest of Class III post by appointing such persons including respondents no. 4, 5 and 6 on Class III post who were earlier appointed on compassionate ground on Class IV post. It has to be kept in mind that there is no pleading that these 9 persons were appointed against the vacancies left out to be filled up in the quota of 21 persons by way of promotion from Class IV employees on the basis of limited departmental examination. Though Mr. Mukhopadhaya had made a gallant effort to bring his point home by referring to different annexures but in absence of any specific averment in the writ application or in his supplementary affidavit seeking to implead respondents no. 4, 5 and 6 this Court will not be in a position to accept the factual position that 9 persons were 9 actually adjusted against promotion quota of Class IV employees. There will be, however, one thing still left as with regard to appointment of respondents no. 4, 5 and 6 and other six similarly situated persons who were earlier appointed on compassionate ground against Class IV post and were later on sought to be again appointed on Class III post. In fact the Commissioner in the impugned appellate order has found it to be absolutely bad, unsustainable and had accordingly directed as follows: ^^ftyk inkf/kdkjh dh v/;{krk esa fnukad 16-8-95 dks gqbZ cSBd dh dafMdk&2 esa vuqdEik ds vk/kkj ij e`r ljdkjh lsodksa ds vkfJrksa dks igys prqFkZ Js.kh ds inksa ij rFkk mlds ckn r`rh; Js.kh ds inksa ij fu;qfDr dk ftdz gSA ;g ljdkjh izko/kkuksa ds fo:n~/k gSA vr% nwljh ckj dh x;h fu;qfDr dks rqjar jn~n dj fn;k tk;a bl vk'k; dk fu.kZ; dk;Zokgh esa Hkh gSA bldk vuqikyu izfrosnu vk;qDr dk;kZy; dks Hkh Hkstk tk;A** It appears that the aforementioned order of the Commissioner was initially acted upon and they were removed from service but later on they were restored again on the order of the Commissioner to their Class III post. Learned counsel for the State in fact would submit that such 10 action of the Commissioner was based on an advice given by the Government Pleader of the district. Though this Court will not be in a position to strike down the order of appointment of these Class IV employees including respondents no. 4, 5 and 6 appointed on compassionate ground as the petitioner had to assail appointment of each of them by impleading them party to this writ application but then taking into consideration that at least 3 of them have been made party in the representative capacity this Court must hold that if 9 post of Class III employees were illegally filled up by appointing respondents no. 4, 5 and 6 and others after their initial appointment on class IV post on compassionate ground, the same would be adversely affecting the promotional prospect of the petitioner, inasmuch as even if the vacancies of direct quota has been utilized, the resultant adverse effect will be on the petitioner because in the next course of consideration he would stand to loose by virtue of walking 11 of these nine persons directly to Class III post. The Supreme Court itself has deprecated the concept of continued compassion and has held any such appointment of a person already given a Class IV post on compassionate ground for again being placed against Class III post. In fact the Commissioner was absolutely justified in passing his order on 11.5.1996 for cancelling such appointment on Class IV employees appointed on compassionate ground who were later on taken on Class III post. It has, however, been noted above that out of 9 persons appointed by the order dated 9.9.1996 only two of them were chosen to be made party, namely, Dayanand Prasad Singh and Janak Chaudhary, who are at Sl.No. 3 and 6 of the order dated 9.9.1996 and therefore, if their appointments are quashed leaving seven others untouched, that by itself would be causing discrimination among the same set of people. In that view of the matter, this Court would direct the Collector of Samastipur District to 12 reconsider his decision of retaining these nine persons named in Annexure 12 who were earlier appointed on Class IV post on compassionate ground and were later on sought to be again absorbed against Class III post by cancelling earlier appointment against Class IV post. Such decision in fact being in teeth of law laid down by the Apex Court and this Court was rightly sought to be cancelled under the orders of the Commissioner of Tirhut Division and therefore, even if this Court has not quashed the order dated 9.9.1996 it would direct the Collector of Samastipur District to reconsider his decision but of course after giving opportunity of personal hearing to all of them. Though the petitioner may not be immediate gainer out of such cancellation of appointment but then if these nine appointment on Class III post is cancelled and the same is taken into account in future vacancies for being filled up from amongst Class IV employees, the benefit of the same may also accrue to the petitioner, if he is 13 otherwise eligible and comes within the 50% of Class-III posts to be filled up on the basis of seniority in future. With the aforementioned observations and directions, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/