IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12755 of 2009 AMITABH GHOSH . Versus THE STATE OF BIHAR & ORS . ----------- 4/ 05/03/2010 Heard learned counsel for the petitioner and learned counsel for the State as also for private respondent No.5. The controversy between the petitioner and respondent No.5 revolves around the claim for appointment on the post of Director, Department of Science and Technology, Government of Bihar. Respondent No.5 has been appointed on that post by order dated 15.7.2009 and with which the petitioner is aggrieved perceivably on the ground that he is senior to respondent No.5. The post of Director, Department of Science and Technology is an ex cadre post and, therefore, appointment is on a tenure basis for three years dependent on the competence of the candidate. The controversy had come to this Court reported in 1992(2) B.L.J. 705 ( Dr. Ram Krit Singh Versus State of Bihar and others), for appointment on the post of Director, Department of Science and Technology with a fight in between the incumbent who was a professor in the Bihar Institute of Technology while the private 2 respondent therein was a professor in the M.I.T., Muzaffarpur. This Court noticed that the posts were ex cadre. The nature of the challenge was that the selection had been done arbitrarily without having regard to seniority or merit. This Court, therefore, in paragraph No.11 gave certain directions of the method and manner in which the ex cadre post of the Director, Department of Science and Technology, should be filled up in consonance with law and fairness of procedure. In pursuance of the same, the Department of Science and Technology framed the necessary guidelines dated 1.9.2000. Clause-2 of the same provides: (A) that the post shall be filled up from amongst those holding the post of Director/Principal/Professor of an engineering college recognized by the A.I.C.T.E. or who hold the qualifications and conditions for such appointment. (B) from the Government Polytechnic. (C) Mining Institution, but both of whom had to be a permanent and regular Principal and fulfil the conditions of such appointment either in the polytechnic or the mining institution as per the A.I.C.T.E. norms for such appointment. 3 The selection of the eligible person was to be done by an establishment committee headed by the Secretary, Science and Technology Department. That this appointment was to be made in order of seniority. Clause-3D of this notification provided that the appointments of the eligible person from the engineering college, polytechnic and mining institute was to be done by rotation. Learned counsel for the petitioner sought to persuade the Court that he was senior to the private respondent No.5 in context of Clause-2B of the notification dated 1.9.2000. This Court has no hesitation in holding that the seniority referred to in that clause pertains to the seniority list drawn up from a particular category, whether of the engineering college, the polytechnic or the mining institute. It does not deal with or contemplate inter se seniority between persons from the three different sources as otherwise it shall completely defeat the purpose of Clause-3D which talks of appointment by rotation from the three different sources. This shall be the harmonious interpretation of the notification as otherwise there shall be a direct clash between Clause-2B and Clause- 3D. 4 It is not in dispute between the counsels for the parties that there is no mining institution in the State of Bihar. The writ petition is in the discretionary jurisdiction of this Court and in the nature of the controversy this Court takes notice of the non- existence of any mining institution in the State of Bihar. It is also not in controversy between the parties that the previous incumbent who held the post of Director, Department of Science and Technology prior to the appointment of respondent No.5 was indisputably from the engineering college. Likewise, the petitioner has himself annexed an extract of an office note of the respondents stating clearly that private respondent No.5 was the sole regular principal and the senior most. The petitioner has not brought any materials on record to even prima facie satisfy the Court that there is any other regular principal of Government polytechnic in the State of Bihar and that too senior to the respondent. In that view of the matter, this Court is not persuaded, simply on the allegation that no establishment committee was constituted before the appointment of respondent No.5 was approved, to interfere. If it is an undisputed position that 5 respondent No.5 is the only regular principal of a Government polytechnic, setting aside the appointment on that ground shall be an exercise in futility to fulfil the formality of an establishment committee and to bring back the respondent No.5. The Court is not persuaded to do so. Once respondent No.5 has been found to be the only eligible person from a government polytechnic, the notification regulating appointment providing for rotational appointment, the previous incumbent was from the engineering college, the eligibility of a person like the petitioner from the engineering college to be considered itself vanishes after the earlier incumbent lays down office when it shall be the turn either of an incumbent from the Government polytechnic or a mining institution. In AIR 1999 S.C. 943 (Utkal University Versus Dr. Nurusingha Charan Sarangi) the Supreme Court has held as follows at paragraph-8: “8. It is in this context that the submission of the University regarding the locus standi of the first respondent to file the writ petition must also be considered. The University has rightly pointed out that the original writ petition does not disclose any legal injury to the original petitioner/present first respondent, because there is no reason to come to a conclusion that he would have been selected even if all his contentions in the writ petition were accepted. The University has relied upon the decision of this 6 Court in Jashbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed, reported in (1976) 3 SCR 58 at page 71 : (AIR 1976 SC 578 at p. 586) for the purpose of pointing out that the first respondent stands more in the position of a meddlesome interloper than a person aggrieved. There is much force in this contention also.” This Court, therefore, holds that in view of the aforesaid conclusion, the petitioner has no locus to maintain this writ application for his own appointment or to question that of respondent No.5 even on merits. The writ application is dismissed. KC/ ( Navin Sinha, J.)