IN THE HIGH COURT OF JUDICATURE AT PATNA C.W.J.C NO.7593 of 1996 1.RAMCHANDRA PRASAD VERMA, S/O LATE CHHOTU PRASAD, R/O VILLAGE BHAGAN BIGHA, P.S. RAHUI, DISTRICT NALANDA AT PRESENT POSTED AS PEON, IN THE OFFICE OF SCHOOL SUB INSPECTOR, GAYA NORTH. 2.SHAMBHU SARAN SINGH, S/O MAHABIR SINGH, R/O VILLAGE PIRAURA, P.O. KUSUMAR, P.S. AKWARPUR, DISTRICT NAWADAH, AT PRESENT POSTED AS PEON IN THE OFFICE OF BLOCK EDUCATION EXTENSION OFFICE, BELAGANJ, GAYA. 3.BINAY KUMAR SINGH, S/O SHRI SATTU PRASAD SINGH, R/O VILLAGE RAMCHANDAR PUR, P.S. EKANGARSARAI, DISTRICT NALANDA, AT PRESENT POSTED AS PEON IN THE OFFICE OF DISTRICT INSPECTORS, GAYA. 4.RANJIT BHAGAT, S/O GHARI BHAGAT, R/O VILLAGE SAHBAJPUR, P.S. FATEHPUR, DISTRICT GAYA, AT PRESENT POSTED AS PEON IN THE OFFICE OF DISTRICT SUPERINTENDENT OF EDUCATION GAYA. 5.ATMA NAND MISHRA, S/O SHRI SHARMA NAND MISHREA R/O VILLAGE RAWAICH, P.S. BAKHTIYARPUR, DISTRICT PATNA AT PRESENT POSTED AS PEON, ZILA SCHOOL, GAYA. 6.SHEO KUMAR, S/O HARIHAR PRASAD, R/O MOHALLA PIPARPATTI, P.S. KOTWALI, DISTRICT GAYA, AT PRESENT POSTED AS PEON IN THE OFFICE DISTRICT SUPERINTENDENT OF EDUCTION, GAYA. 7.JAYANDRA PRASAD, S/O LATE OF RATAN RAM, R/O VILLAGE LEV, P.S. KONCH, DISTRICT GAYA, AT PRESENT POSTED AS PEON IN THE OFFICE OF DISTRICT EDUCATION OFFICER, GAYA. 8.SHRI SHARMA, S/O LATE HULASH SHARMA, R/O VILLAGE NANDPUR, P.S. NADRIGANJ, DISTRICT NAWADAH, AT PRESENT POSTED AS PEON IN THE OFFICE OF BLOCK EDUCATION EXTENSION OFFICER, WAJEERGANJ, NORTH GAYA. 9.DAYA CHANDRA PRASAD, S/O MAHABIR CHAUDHARY, R/O VILLAGE KURWAMA, P.S. CHERKI, DISTRICT GAYA, AT PRESENT POSTED AS PEON IN THE OFFICE OF SCHOOL SUB- INSPECTOR, SOUTH GAYA. 10.RAJ KISHORE PRASAD, S/O LATE KANHAI SINGH, R/O MOHALLA SAMIR TAKYA, P.S. CIVIL LINE, DISTRICT GAYA, AT PRESENT 2 POSTED AS PEON IN THE OFFICE OF DISTRICT SUPERINTENDENT OF EDUCATION, GAYA. Versus 1. THE STATE OF BIHAR. 2.THE REGIONAL DEPUTY DIRECTOR OF EDUCATION, MAGADH PRAMANDAL, GAYA. 3.THE DIVISIONAL ESTABLISHMENT COMMITTEE, THROUGH ITS CHAIRMAN, REGIONAL DEPUTY DIRECTOR OF EDUCATION, MAGADH PRAMANDAL, GAYA. 4.THE DISTRICT SUPERINTENDENT OF EDUCATION, GAYA. 5.THE DISTRICT EDUCATION OFFICER, GAYA. 6.THE DISTRICT SUPERINTENDENT OF EDUCATION, NAWADH. 7.THE DISTRICT EDUCATION OFFICER, GAYA. .............RESPONDENTS 1ST SET. 8.AJIT PASWAN, S/O NAME NOT KNOWN TO THE PETITIONERS, AT PRESENT POSTED AS CLERK IN THE OFFICE ZILA SCHOOL, GAYA. 9.JAIRAM CHAUDHARY, S/O NAME NOT KNOWN TO THE PETITIONERS, AT PRESENT POSTED AS CLERK IN THE OFFICE OF SUB DIVISIONAL EDUCATION OFFICER, AURANGABAD. 10.RAMDEO MANJHI, S/O NAME NOT KNOWN TO THE PETITIONERS, AT PRESENT POSTED AS CLERK IN THE OFFICE OF DISTRICT SUPERINTENDENT OF EDUCATION, NAWADAH. 11.PURAN RAM, S/O NAME NOT KNOWN TO THE PETITIONERS, AT PRESENT POSTED AS CLERK IN THE OFFICE OF DISTRICT SUPERINTENDENT OF EDUCATION, NAWADAH. 12.BUDDHAN RAM, S/O NAME NOT KNOWN TO THE PETITIONERS, AT PRESENT POSTED AS CLERK IN THE OFFICE OF DISTRICT EDUCATION OFFICER, NAWADAH. .............RESPONDENTS 2ND SET. 13.MANOJ KUMAR, S/O NAME NOT KNOWN TO THE PETITIONERS, AT PRESENT POSTED AS CLERK IN THE OFFICE OF AREA EDUCATION OFFICER, SHERGHATI. 14.SANJAY KUMAR, S/O SHRI GOPAL PRASAD SINGH, R/O VILLAGE SOWAL, P.S. TEKARI, DISTRICT GAYA AT PRESENT POSTED AS CLERK IN THE OFFICE OF DISTRICT EDUCATION CUM TRAINING INSTITUTE, NAWADAH. 15.SURESH KUMAR PRADEEP, S/O SHRI PARMESHWAR DAYAL, R/O VILLAGE & P.O. LONDH, DISTRICT NAWADAH, PRESENTLY POSTED 3 AS CLERK IN THE OFFICE OF DISTRICT SUPERINTENDENT OF EDUCATION, NAWADAH. ...............RESPONDENTS 3RD SET. 08/ 04.07.2011 Heard Mr. Dinu Kumar, learned counsel for the petitioner. No one appears on behalf of either of the official respondents or the private respondents. This writ application has already stood dismissed for non compliance of the peremptory order as against respondent no. 15 and respondent no. 17 and as such this Court can not interfere with the order dated 17.08.1994 contained in Annexure-5 seeking to appoint four persons on a class-III post. In view of the fact, this Court earlier had refused to interfere with a similar order passed in the case of Manoj Kumar, respondent no. 13, inasmuch as, for him also the same procedure of recommendation of the employment exchange has been followed this Court can also not disturb his appointment. True it is that even for making direct appointment on a vacant class-III post, the vacancy has to be advertised in newspaper but then as a situation which has 4 emerged in this case on account of dismissal of the writ application as against the respondent no. 15 and 17, this Court will have to uphold not only the appointment of respondent nos. 15 and 17 but also of respondent nos. 13, 14 and 16 as they were made in same transaction by following the same procedure of soliciting their names from employment exchange and accordingly this Court now can not interfere with the two appointment letters dated 17.08.1994 and 29.04.1995 as far as they relate to Respondents 13 to 17 of this writ application. The petitioners in fact have basically been aggrieved on account of non filling up the quota of class-III post which have to be filled up from amongst the eligible class-IV employees. The procedure for filling up such class-III post in the relevant period was laid down in the State Government circular dated 11.02.1985 which had required not only the preparation of the panel on the basis of all the eligible class- IV employees having the requisite 5 qualification (then matriculation) but also subjecting them to written test. Admittedly, in this case, no such procedure as has been laid down in the State Government circular dated 11.02.1985 was followed and the private respondents 8 to 12 were appointed on class- III post by way of promotion by order dated 29.03.1996. It is true that the official respondents have tried to explain such appointment by way of promotion of the private respondents 8 to 12 vide order dated 29.03.1996(Annexure-3) on the ground of there being vacancy for the scheduled caste employees but then the Government circular dated 11.02.1985 or any other circular did not contemplate filling up of the class-III posts on the basis of promotional/internal recruitment quota only on the basis of seniority. The impugned order as contained in Annexure-3 itself refers to some sort of agreement with the employees association which cannot be the basis in law for filling up the prescribed quota of class-III post from amongst the eligible class-IV employees. The respondents nos. 8 to 12 have 6 already filed their appearance through Mr. Prem Prakash Arya, Advocate of this Court but they have also not filed any counter affidavit in defence of their appointment/promotion made by Annexure-3 and as such when this Court has also found that no prescribed procedure was followed in their appointment/promotion from class-IV to class- III post and the impugned order as contained in Annexure-3 dated 29.03.1996 had been passed merely on the basis of some agreement with Chairman of Bihar State Peon Association, it will have no option but to hold that the order of their appointment/promotion is not sustainable in the eye of law. This court however, is not aware as to whether the respondent nos. 8 to 12 are still continuing in service. As noted above, their counsel has also not appeared nor any counter affidavit has been filed on their behalf. In such a situation, this Court would direct the Principal Secretary of the Human Resources Development Department to look into this aspect and if the petitioners and the 7 respondent nos. 8 to 12 are still continuing in service, all of them should be subjected to uniform procedure for filling up the vacant class-III post from amongst the eligible class-IV employees and in the event of respondent nos. 8 to 12 are selected for such class-III post, they would be entitled to count their previous services rendered on class-III post on the basis of the impugned order as contained in Annexure-3 but in case they do not qualify or do not get selected in the fresh selection process they would get no benefit of the past services rendered by them as of class-III employees and therefore their service length shall be counted only on a class-IV posts. Such exercise must be completed by the Principal Secretary of Human Resources Development Department within a period of six months from the date of receipt/production of a copy of this order. This application is, accordingly, allowed in part only to the extent indicated above. Ranjan (Mihir Kumar Jha, J)