IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.20 of 2008 SUDHIR KUMAR, son of Sri Saudi Singh, resident of village Khanawan, P.S. Narhat, District Nawada … Petitioner Versus 1. THE STATE OF BIHAR 2. The Chief Secretary, Govt. of Bihar, Patna 3. The Principal Secretary, Department of Labour, Govt. of Bihar, Patna 4. The Bihar Public Service Commission through its Secretary, Bailey Road, Patna 5. The Union of India, Ministry of Personnel and Public Grievances (Department of Personnel), Lok Nayak Bhawan, Khan Market, New Delhi through its Deputy Secretary (SR) 6. The State Advisory Committee through its Secretary, Sichai Awas, Bailey Road, Patna 7. Sri Ram Babu Choudhary, son of not known to the petitioner, Boiler Inspector, Muzaffarpur Cirlce, Muzaffarpur (Bihar) … Respondents. ----------- 8. 26.3.2010 Heard counsel for the parties. The prayer in this writ application reads as follows: “(i) For issuance of an appropriate writ/writs in the nature of certiorari to quash letter No. 28/16/2005- SR(S) Part-II dated 22.8.2006 issued by respondent no.5 through its Deputy Secretary (SR) as well as for quashing the notification contained in letter No. 88 dated 6.6.2007 issued under the signature of the Deputy Secretary of the Department of Labour, Government of Bihar, whereby and whereunder the services of private respondent no.7 has been wrongly and illegally allocated to 2 the State of Bihar from the State of Jharkhand even after the final partition of the cadre of boiler Inspector in the Department of Labour and his joining has been accepted illegally on the post of general category, on which he cannot be posted legally. (ii) After quashing the aforesaid impugned letter this Hon’ble Court be further pleased to issue an appropriate writ/order or direction to the concerned respondents to consider and to take decision without any further delay for appointment of the petitioner on the post of Boiler Inspector through the process of appointment which has already been held and the matter is pending in the department in pursuance of the observation/ direction given by a Division Bench of this Hon’ble Court vide order dated 11.10.2004 in petitioner’s L.P.A.No. 1016/2004. (iii) For further direction upon the concerned respondents to consider the case of the petitioner for his appointment on the post of Boiler Inspector in accordance with law as his grievance/ claim is still under consideration before the departmental authorities for asking the recommendation of the petitioner from B.P.S.C. for his 3 appointment on the said post of Boiler Inspector.” Let it be noted that Dr. Mayanand Jha, learned counsel appearing on behalf of Government of India, has raised a preliminary objection with regard to maintainability of the writ petition at the instance of the writ petitioner by taking a plea that he was wholly unconnected to the impugned order with regard to repatriation of respondent no.7 from the State of Jharkhand to the State of Bihar as a fall out cadre bifurcation in terms of section 72 of the Bihar Re-organization Act. Learned counsel for the petitioner, however, in order to meet the aforementioned preliminary objection has submitted that in the year 1998 the Bihar Public Service Commission had advertised the post of Boiler Inspector and the petitioner was a candidate for the said post and if the impugned order is allowed to remain his chance of appointment in future would be blocked. He further submits that as a consequence of the impugned order of repatriation, it would amount to be 100% reservation, inasmuch as 4 respondent no.7 belongs to Scheduled Caste and there being only two posts of Boiler inspector, one being occupied in the truncated State of Bihar, by a person of Schedule Tribe the other by respondent no.7 belonging to Schedule Caste, it would lead to 100% reservation which is impermissible in law. In the opinion of this Court the present application is a classic example of a frivolous litigation. It is so because the petitioner had not even an anticipated right much less a legitimate right to the post of Boiler Inspector. His application for the post of Boiler Inspector in course of scrutiny by the Bihar Public Service Commission was rejected on the ground that he did not possess the requisite qualification in terms of advertisement issued by the Commission in the year 1988. The matter between him, State of Bihar and the Bihar Public Service Commission became also final on account of disposal of the writ application filed by the petitioner and its affirmance in L.P.A.No. 1016/2004 by an order dated 11.10.2004 wherein this Court 5 has held as follows: “ This matter relates to the appointment of Boiler Inspectors by the Bihar Public Service Commission. The appellant and others applied but the Commission did not recommend their names on the ground that they did not possess the requisite qualification and experience. This Court cannot sit as an appellate forum over the decision of the Commission. Accordingly, we do not find any error in the order of the learned Single Judge and this appeal is, thus, dismissed.” It is an admitted position that thereafter the Commission had never re- advertised the post and two posts of Boiler Inspector were sought to be managed and occupied by the existing employees of erst- while State of Bihar. In such view of the matter whether cadre bifurcation by alloting both of them to present State of Bihar would lead to 100% reservation cannot be the concern of the writ petitioner. He is infact nobody to question such decision of Government of India with regard to allocation of cadre in terms of Section 72 6 of Bihar Re-organisation Act. As a matter of fact the event of bifurcation of the State being subsequent to the advertisement of the post of Boiler Inspector of the year 1988, it was well open for the Government not to even re-advertise the post and to continue with the persons, who were in employment in the erst-while State of Bihar. Consequently bifurcation of cadre amongst the aforementioned persons could never be questioned by a rank out- sider person like the writ petitioner. In that view of the matter, the question of 100% reservation on account of repatriation of respondent no.7 becomes academic and at least cannot be gone into at the instance of the petitioner. This Court, therefore, would find no merit in this application and the same is accordingly, dismissed. (Mihir Kumar Jha,J.) Surendra/