IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7884 of 2002 1. BALMIKI RAJAK, son of Sri Chamaru Rajak, resident of village Abjuganj, P.S. Sultanganj, District Bhagalpur, at present Kilaghat Sarai, Mahadeo Singh College Road, P.S. Kotwali, District Bhagalpur 2. Mahendra Mahto, son of late Jhigur Mahto, resident of village D.N.Singh Ghat Road, P.S. Bhagalpur, District Bhagalpur 3. Umesh Pashwan, son of Sri Dawaika Pashwan, resident of village Babhangawa, Bihpur, P.S. Bihpur, District Bhagalpur 4. Vinay Kumar Rai, son of Panchanand Rai, resident of village Rampur Thakurwari, P.S. Nath Nagar, District Bhagalpur 5. Naresh Pashwan, son of Sri Mohan Pashwan, resident of village Laxmipur, P.S. Pirpaiti, District Bhagalpur … Petitioners Versus 1. THE STATE OF BIHAR 2. The Director-in-Chief, Health Services, Govt. of Bihar, New Secretariat, Patna 3. The Civil Surgeon cum Chief Medical Officer, Bhagalpur 4. The Assistant Director, Health Services, (Phaleria Control), Bihar, Patna, New Secretariat, Patna 5. Phaleriya Officer, Phaleriya Control Unit, Bhagalpur 6. The District Magistrate, Bhagalpur 7. The Additional Collector, Establishment, Bhagalpur 8. The District Najarat, Deputy Collector, Bhagalpur … Respondents ----------- 5. 19.7.2010 Heard counsel for the petitioners and the counsel for the State. In this writ application the prayer of the petitioners reads as follows: “This application is for an appropriate writ/writs, order/orders, direction or 2 directions, against the respondents authorities for appointment on the post of 4th Grade employees list under the recommendation of District Magistrate, Bhagalpur in the year 1996 to appoint all the petitioners to Phaleria Officer, Bhagalpur and as such the District Magistrate (respondent no.6) has been directed to Phaleria Officer on the basis of C.W.J.C.No. 8489/94 passed by the Patna High Court in that respect the case was decided in favour of the petitioners in letter No. 318 dated 24.2.1997 in that respect the District Magistrate, Bhagalpur has been issued letter No. 159 dated 2.6.1997 to the Assistant Director Health Services, Phaleria Department, Bihar, Patna for filling up the post of 4th Grade employees in office of all Phaleria Control Office, Bhagalpur on the basis of aforesaid order passed by this Hon’ble Court vide letter no. 159 dated 2.6.1997, again the respondent no.2 has directed to the Assistant Director, Health Services (Phaleria Control) Bihar Patna vide letter No. 23/1-17/98 02(23) Health, dated 8.1.1999 for appointment of the 4th Grade employees but the respondent authorities did not consider on the 3 point of appointment list of the District Magistrate, Bhagalpur which recommended in the year 1996 but the respondent authorities is illegally, malafide and unjustified on point of appointment for the post of 4th grade employees.” Mr. R.C.Sinha, learned counsel for the petitioners, with reference to the aforementioned relief would submit that the issue in question has been adjudicated by this Court in an order dated 12.1.2007 in C.W.J.C.No. 6132/2000 and therefore, this Court should also pass a similar order. For the sake of convenience and appreciating the aforementioned submission it would be necessary to reproduce the order dated 12.1.2007 in C.W.J.C.No. 6132/2000 which reads as follows: “ Heard the parties. It has been submitted on behalf of the petitioner that the petitioner’s case is similar to that of the writ petitioners of C.W.J.C.No. 11703 of 1997 disposed of on 1.8.1999 (Annexure 2). It is further submitted that the respondent deserves to be directed for taking similar action in favour 4 of the petitioner for her appointment since the writ petitioners of the aforesaid writ petition and the present petitioner are from the same panel for appointment. A counter affidavit has been filed on behalf of the State. However, the submissions as advanced on behalf of the petitioner in light of the earlier order of this Court, as referred to the above, is not disputed. In view of the above, in case the present petitioner and the writ petitioners of C.W.J.C.No. 11703 of 1997 belongs to the same panel prepared for appointment, the respondent should examine the case of the petitioner and issue necessary appointment letters in her favour after verifying the relevant documents in support of her claim for appointment preferably within a period of four months on receipt/ production of the certified copy of this order. The petitioner submits that during the pendency of this writ application, she has crossed the age bar, and as such, she deserves to be extended age relaxation, which were granted to some of the writ petitioners of C.W.J.C.No. 14703/97. 5 In my view similar relief shall also be extended to the present petitioner. The writ application is disposed of with the above observations. Directions.” In the opinion of this Court when there is a specific counter affidavit by the respondents explaining that the appointment of the petitioners on the basis of panel prepared in a District cannot be made, an aspect which was never gone into by this Court in the case of Anjana Kumari (supra), it would be difficult for this Court to give same direction as in the case of Anjana Kumari (supra). In paragraph 8 of the counter affidavit filed by respondent no.4, the Assistant Director, Health Services (Phaleria Control), Bihar, Patna it has been clearly mentioned that: “ … … … The post under National Fileria Control Programme, in all the District Units of Fileria, are state cadre post. The appointing authority of these posts is respondent no.4/ deponent, who is State Programme Officer of this Centrally sponsored Scheme (Annexure R-4/8). The appointment 6 procedure of these posts are different and the same should not be filled up from the District panel by the respondent no.6 as the jurisdiction of respondent no.6 is limited only upto/ in the District level. Respondent no.6 is impowered to appointment of only District Level Class IV posts and not of State level because he is not competent authority to make appointment in state level posts.” There is no denial to this aspect by the petitioner by filing any rejoinder affidavit but then Mr. Sinha would draw attention towards paragraph 7 of the counter affidavit read with Annexure R-4/J to submit that the posts covered by an order of this Court dated 1.8.1999 in C.W.J.C.No. 11703/97 were meant for district cadre post and therefore, no appointment could be made from the State panel. It would, thus, appear that the whole issue lies with regard to filling up the post in Bhagalpur District under Phaleria Control Scheme and in terms of the counter affidavit it becomes clear that if those posts are Centrally Sponsored post 7 having State cadre, no appointment can be made from the District panel but if those posts are available in Phaleria Department which have the District cadre, there would be no question of giving any consideration to a candidate empanelled in the State cadre. Therefore, this Court would only remit the matter back to the Collector of Bhagalpur District, who now in consultation with the Civil Surgeon and District Phaleria Officer would first decide as to whether the vacancies on which the petitioners are lying their claim belong to the State Cadre or district cadre. In the event it is found that the posts being claimed by the petitioners are State cadre, the District Magistrate shall drop the matter then and there in view of uncontroverted stand taken by respondent no.4, but if those posts are found to be of District Cadre in the establishment of Bhagalpur District, the panel so prepared by the Collector, if still has remained alive for all this period, would be either acted upon or would be renewed for the purposes of making appointment strictly in accordance with law. 8 With the aforementioned observations and directions, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/