IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12303 of 1995 1. DINANATH BARI, S/o Kailash Bari, R/o Ahilashpur, P.S.-Bhabhua, District-Kaimur. 2. Ashok Kharwar, S/o Kabinath Kharwar, R/o Bhabhua, Ward No. 11, P.S.-Bhabhua, District- Kaimur. 3. Kamlakar Prasad, S/o Ramdayal Prasad, R/o Barua P.S.-Shiv Sagar, District-Rohtas. 4. Awadhesh Singh, S/o Mahesh Singh, R/o Seo, P.S.- Bhabhua, District-Kaimur. 5. Murtaja Sah, S/o Chhunu Sah, R/o Village Mosain Khurd, Tola-Phulwaria, P.S.-Chainpur, District- Kaimur. 6. Baldeo Prasad, S/o Saryug Prasad, R/o Ward No. 6, Bhabhua, P.S.-Bhabhua, District-Kaimur. ..................... Petitioners Versus 1. STATE OF BIHAR. 2. Commissioner, Patna Division, Patna. 3. District Magistrate, Kaimur at Bhabhua. 4. Sub-Divisional Officer Kaimur at Bhabhua. 5. Sub-Divisional Officer, Mohania, District-Kaimur ..................... Respondents ----------- 11. 6.11.2009 Heard Mr. B.P.Pandey, learned Senior counsel for the petitioner and Mrs. Nivedita Nirvikar, learned counsel for the respondents. At the out set Mr. B.P.Pandey, learned Senior counsel, seeks permission to delete the name of petitioner no.1 who is said to have died during the pendency of this writ application. Since right to sue will not survive in the facts and circumstances of the case and as such there would be no question of substitution, the name of petitioner no.1 would stand deleted 2 from the cage column of the writ petition. Even after removal of the name of petitioner no.1 this writ application would still survive for the remaining five petitioners. The prayer in this writ application reads as follows: “This writ application is for issuance of appropriate writ rule or direction quashing the order of appointment contained in Annexures 1 series and for issuance of appropriate direction to regularize the services of the candidates on the basis of seniority maintained in register 30. And in alternative fill up the posts on regular basis in compliance of Article 16 of the Constitution of India.” Mr. Pandey, learned senior counsel, would submit that the petitioners were taken as candidate peon and they were allotted duty from time to time which as per Board of Revenue circular gave them a right to be considered at the time of regular appointment both by way of renewal of panel from year to year and also for consideration 3 at the time of substantive vacancies of Class IV post. He, however, has placed reliance on certain materials to show that while the appointment of Class IV post was made by Kaimur Collectorate at Bhabhua on 22.11.1995 appointing 16 persons on the post of peon, the cases of the petitioners were not considered. Though Mr. Pandey has tried to refer to many documents in support of the claim of the petitioners but in view of the order that this Court proposes to pass, it would not be necessary to give any finding on them as that may prejudice the case of either of the parties. It is not in doubt that as per decision of the State Government and the Board of Revenue any grievance relating to empanelment of candidate peon or consequential appointment made on substantive vacant Class IV post being made under the authorities of the Collector of the district, can be looked into only by the higher authorities, namely, the Commissioner of the Division. That is how a decision has been taken by the Personnel and 4 Administrative Reforms Department directing the respective divisional Commissioner to look into the anomaly and grievance pertaining to candidate peon. Here in this case on account of the claim and counter claim betweens the parties it would be very difficult for this Court to decide the such jinxed and disputed question of fact and therefore, in order to shorten the litigation this Court would direct the petitioners to file their fresh individual representation to the Commissioner of Patna Division who after calling for the relevant records from Kaimur Collectorate would pass a final order dealingwith the individual grievance of the petitioners. In case the Commissioner finds that the petitioners were discriminated or that they were elbowed out by the authorities of the Collectorate on an irrational or arbitrary consideration, he would pass an order for accommodating the petitioners on future vacancies. On the other hand, if the Commissioner would not find any merit in the case of the petitioners, he would reject the same of 5 course by recording his own reasons. Let it be however made clear that as the petitioners had assailed the order of appointment of 16 persons (Annexure 1) dated 22.11.1995 without impleading them or even anyone amongst them in representative capacity the appointment of aforesaid sixteen persons covered by the order dated 22.11.1995 will not be disturbed even if it is now held by the Commissioner, Patna Division that the petitioners were denied the fair treatment at the time of appointment of the 16 persons covered by the order dated 22.11.1995 Annexure 1. At the same time if the petitioners or anyone amongst them would successfully demonstrate that their case is at par with the 16 persons covered by the aforesaid order, they would be entitled for being appointed on the existing vacancies of any Class-IV post in terms of Circular of State Government dated 3.12.1980. Such exercise must be completed by the Commissioner of Patna Division within a period of six months from the date of 6 receipt/ production of a copy of this order as also individual representation of petitioner no. 2 to 6 of this writ petition. With the aforesaid observations and directions, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/