IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.34 of 2005 RAM AVATAR PRASAD Versus THE STATE OF BIHAR & ORS ----------- For the Petitioner : Mr Shailendra Kumar Sinha, Advocate For the State : Mr Raghvendra Kumar Singh,JC to GA 5 For Respondent no.7: M/s Uday Chand Prasad & Binod Kumar Sinha,Advocates -------- 8. 28.07.2008 Heard the learned Counsel for the petitioner, the learned Counsel for the State and the learned Counsel for respondent no. 7.. The petitioner came to this Court aggrieved by the order of the Divisional Commissioner, Munger inService Appeal No.23-17 of 2003 by which he set aside the entire selection process for appointment on the post of Drivers, with a prayer for a consequent mandamus for his appointment in terms of his empanelment by the selection committee. Applications were invited through the Employment Exchange for appointment on vacant posts of Drivers. The petitioner was also one of the applicants. A seniority list was then drawn up on 25.6.2002 in which name of the petitioner figured at serial 2. The name of his brother figured at serial 1. The authorities denied him appointment notwithstanding his position in the merit list on the premise that since his brother was already at serial 1 for appointment, the benefit of employment cannot be given to two brothers simultaneously. The seniority list as corrected by the District Magistrate then traveled in appeal before the Divisional Commissioner at the behest of certain aggrieved persons. Even while holding that the grounds for denial of appointment to the petitioner were ridiculous the Commissioner in view of the irregularities set aside 2 the entire selection and directed to undergo the entire process over again. This order dated 2.10.2003 of Commissioner came to be assailed by certain person aggrieved before this Court in CWJC No. 3093 of 2004. This Court by its judgement and order dated 7.3.2006 set aside the order of the Divisional Commissioner and directed reinstatement of those aggrieved with directions for consequential benefits and back wages also. LPA No. 35 of 2007 at the behest of the State met the same fate and the special leave petition preferred against the same yielded no better result. The position that now emerges is that admittedly the petitioner was serial 2 of the select list. Even the Commissioner in his discussion arrived at a finding of fact that the petitioner has been wronged. To this Court also, the grounds given by the District Magistrate to deny appointment to the petitioner only because his own brother was at serial 1 is preposterous and cannot be sustained. The denial of appointment to the petitioner and the consequent orders of the Commissioner as adjudicated by this Court as well as the Apex Court resulted in appointment of some to the prejudice of the petitioner when grievance of the petitioner never saw the light of the day at that stage. However that aspect of the petitioner is conveniently resolved now on the counter affidavit filed on behalf of the State. Para 5 of the same states that five vacancies exist on the posts of Driver in the Lakhisarai Collectorate. In view of the fact that the issue of respondent no. 7 has already been adjudicated finally till the Supreme Court and 3 who is now in service, the question of deciding his appointment to the prejudice of the petitioner becomes academic and also cannot be gone into. In view of availability of vacancies admitted by the respondent State the petitioner is clearly entitled to appointment on the post of Driver in view of his earlier empanelment and wrongful denial to him as admitted on the facts of the case. The respondent no. 3 is therefore directed to consider and appoint the petitioner in terms of his empanelment in the original select list within a maximum period of three months from the date of receipt and/or production of a copy of this order. It is made clear that seniority of the petitioner shall be counted from the date that the next appointment came to be made from the panel ignoring his position at serial 2 of the merit list, It is submitted that the petitioner has in the meantime has been working on daily wage but has not been paid. That is a factual aspect to be considered by the respondents no. 2 in accordance with law on a representation to be submitted by the petitioner. The writ application stands allowed to the extent indicated. Snkumar/- (Navin Sinha,J.)