IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.305 of 2011 Sukhdeo Prasad, s/o- Late Puran Mahto, r/o- village Jorarpur, P.S.- Dip Nagar, District- Nalanda. ……. Petitioner. Versus 1. Biharsharif Nagar Nigam, Biharsharif (Nalanda), District- Nalanda through its Commissioner. 2. Mayor, Biharsharif Nagar Nigam, Biharsharif (Nalanda), District- Nalanda . 3. Municipal Commissioner Biharsharif Nagar Nigam, Biharsharif (Nalanda), District- Nalanda. 4. The State of Bihar through Secretary, Urban Development Department, Government of Bihar, Patna. 5. Arun Kumar, Assistant, Biharsharif Nagar Nigam, Biharsharif (Nalanda), District- Nalanda ………. Respondents For the petitioner : Mr. Jitendra Prasad Singh, Advcoate For the Corporation : Mr. Gyan Prakash Ojha, Advocate For the State : Mr. Divya Verma, A.C. to A.A.G-3. ----------- 4 04.07.2011 Heard both sides. Petitioner seeks a direction upon the respondents particularly, officials of Biharsharif Nagar Nigam, Biharsharif (for short “the Nigam”) to appoint him on the vacant post of Assistant Clerk in the office of the Nigam. Brief history of the case may be indicated. Petitioner served the Army. He was discharged from the said service on medical ground in the year 1984. In the year 1990, he was appointed in the Nigam in view of certain resolutions of the Government to earmark certain posts for Ex-Army/servicemen. His appointment in the Nigam was challenged in a writ petition. This Court by order dated 21.12.1994 quashed the appointment of the writ petitioner being violative of Article 14 of the Constitution of India. 2 Petitioner, thereafter, claiming himself to be physically handicap approached this Court by filing a proceeding being C.W.J.C. No. 7123 of 1991. On hearing both sides, this Court by order dated 23.4.1999 disposed of the said writ application with certain observations. Said order is enclosed as Annexure-2. It appears from perusal of the order that this Court observed that in case the Nigam intends to recruit and advertise posts, the candidature of the petitioner was required to be considered in accordance with law and he was entitled to certain relaxation of age. Petitioner again approached this Court in C.W.J.C. No. 4981 of 2004 with certain grievances as would appear from paragraph 3 of the said order which reads thus: “The first relief was for a direction upon the respondent to disengage persons in employment on daily wages in conformity with other judicial orders which have been passed in this regard from time to time. Second relief was for a direction to fill up the post on regular basis and the third relief was to comply with the provisions of the persons with disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995.” This Court by order dated 13.7.2007 (Annexure-3) disposed of the said writ petition, operative portion whereof reads as under: “With regard to the second relief of filling up of the vacant posts on a regular basis, this Court can only observe at this stage that it is basically falls within the domain of the respondent authority and it will be for them to now work out the details, the posts and whether they require to be filled up depending on the demand and the needs of 3 Municipal Corporation. With regard to third relief which is basically related to second relief, this Court observe that as and when advertisements are issued for filling up of the posts on permanent basis then Municipal Corporation is duty bound to extend the benefit of reservation which the various statute provide including the Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995” A counter affidavit has been filed on behalf of the respondents. The grievance of the petitioner is that after the aforesaid order, the Nigam came up with an advertisement on 20.12.2008 (Annexure-4) wherein only one post of Assistant has been advertised which has not been earmarked for the category to which the petitioner belongs. It is the case of the petitioner that there are several posts lying vacant. It is also the case of the petitioner that ignoring his case, respondent No. 5 has been appointed. The respondent(s) have explained in the counter affidavit that respondent No. 5 was not appointed pursuant to the advertisement contained in Annexure-4. It is also the stand of the respondent Nigam that pursuant to advertisement (Annexure-4), petitioner did not submit any application. This stand has, however, been denied by the petitioner in his rejoinder. At least, on two occasions, the petitioner approached this Court. On both the occasions, this Court refused to direct the Nigam to appoint him against post 4 which is/are said to be lying vacant. It has been observed that appointment on the vacancy lies within the domain of the employer. It may take steps to recruit and/or stay such process for diverse reasons. The Court in such matter would not issue any positive directions. It appears that the terms of the advertisement contained in Annexure-4 have not been challenged. There appears to be 01 post to which petitioner claimed himself eligible. 01 post cannot be reserved. Petitioner has thus failed to make out a case of discrimination. In that view of the matter, this Court declines to grant any relief to the petitioner. The application is dismissed. pkj ( Kishore K. Mandal, J)