IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10720 of 2006 DINESH PASWAN Son of Late Ram Lakhan Paswan, Resident of village –Mirchaiya Tola, Post Office- Gulzarbag, Police Station- Alamgang, District Patna, posted as Assistant, D.T.O Office, Patna. ……….PETITIONER. Versus 1. THE STATE OF BIHAR through the Commissioner-cum- Secretary, Department of Transport, Government of Bihar, Patna. 2. The State Transport Commissioner, Government of Bihar, Patna. 3. The District Transport Officer, Patna. ........RESPONDENTS. ----------- 2 03.12.2010 Petitioner is a Class III scheduled caste employee in the Road Transport Department, Government of Bihar. By this writ application he seeks his appointment by promotion to the cadre of Enforcement Sub Inspector, which, he submits, has been wrongly denied to him. A counter affidavit has been filed. Petitioner has filed application for additional relief being IA No. 9879 of 2010 in view of subsequent events during the pendency of the writ petition. In the writ petition itself it was stated that petitioner had made a representation to the Department for his appointment by promotion, which was recently rejected, and as such, this interlocutory application with additional prayer. The interlocutory application is allowed. Heard the parties and with their consent this writ petition is being disposed of at this stage itself. In 1991, the State Transport Commissioner framed rules vide Office Order No. 2130 dated 31.3.1991 in respect of post of Enforcement Sub- Inspector and Mobile Inspector and 2 for their appointment and promotions. Rule 2 thereof deals with Enforcement Sub Inspector. It states that there are thirteen permanently sanctioned posts. It further provides that all these posts are kept reserved to be filled by promotion from staff including Clerks at the Headquarters. The appointment by promotion is to be based on seniority- cum -merit. It is then provided for a committee for carrying out the selection process for such appointments .This is Annexure 1 to the writ petition. It appears that these posts having been created, the Department was not filling them up as such several writ petitions were filed in this Court. Apparently, this Court directed the State to fill up the posts accordingly on or about 4th August 1995, a newspaper advertisements was issued calling upon all persons qualified for such appointment to the post of Enforcement Sub -Inspector under the aforesaid 1991 rules to make applications accordingly. This is Annexure 2 to the writ petition. Once this advertisement was issued and the selection process started, the Department then appeared to have laid down the modality and conditionality for selection and completed the selection process. Several writ petitions were filed in this Court challenging the prescribed modality and conditionality as made after the selection process started. The cases were heard and by judgment dated 15th October 1996 as delivered in CWJC No. 7690 of 1995 and analogous cases being Ramesh Pathak & others versus. The State of Bihar and others, this Court struck down the 3 conditionalities and modalities as later specified. The Court, accordingly, held the entire process of selection and consequential appointments by promotion to be bad and directed the State to reconsider the cases afresh including the modalities/conditionalties/guidelines pursuant thereto. This judgment is Annexure 3 to the writ petition. The Selection Committee once again met on 11.9.1997 under the Chairmanship of State Transport Commissioner, Bihar. The minutes of this Selection Committee is Annexure 4. A reference to the said minutes would show that the Selection Committee having considered the application of the petitioner found the petitioner fit and competent to be appointed as Enforcement Sub- Inspector. Accordingly a panel of twenty seven selected candidates on basis of seniority- cum- merit was prepared. It may be mentioned that, in all, sixteen posts were to be filled up at that time. The panel shows that there was no scheduled tribe candidate; there were five scheduled caste candidates and petitioner was 27th that is junior most in the panel and junior most in scheduled caste also. In paragraph 10 of the minutes it is clearly mentioned that there was one post as per roster available for scheduled tribe. There were three posts for scheduled caste and there were twelve posts available to the general category. Accordingly, the three scheduled caste persons above petitioner were appointed as per roster. There being no candidate for scheduled tribe, the post was kept vacant. Thus, so far as petitioner is concerned, he and one other person above him, 4 being the two scheduled caste candidates, were left ; all appointed in that selection year. Petitioner has taken a stand and it is not denied that in the next two selection years no scheduled tribe person was found suitable or available , the only other scheduled caste candidate above him, namely, Raj Kumar who was at serial No. 23 then went of to Jharkhand. Thus, after three selection years he was the only scheduled caste candidates available with no scheduled tribe candidate available in the last three preceding years. The petitioner then represented invoking the State Government circular dated 8.5.1987, Annexure 5 to the writ petition, This Circular was specifically issued, Pursuant to various queries by Department as to how to treat the carry- over vacant reserved posts. The decision of the government was that the vacancy at the roster point because of non availability of the suitable candidate in the category was required to be carried over for three selection years and, if still that category person was not found or available, then it would go to the other category and the senior most in that category would get the slot out of the two category under consideration that is the scheduled caste and scheduled tribe. Thus the decision of the State was to carry forward the vacancy of scheduled tribe for three years and if it was not so filled up then offer it to senior most scheduled caste or vice versa. Respondent not having given heed to petitioner’s representation, petitioner approached this Court in the present writ petition as noted above, during the pendency of the writ 5 petition the representation was rejected as well. From the counter affidavit and the order of rejection of petitioner’s representation, it appears that two reasons are given for not acceding to the petitioner’s request that the post vacant for scheduled tribe should be made available to him. In paragraph 8 of the counter affidavit it is stated that petitioner being junior most in the scheduled caste category, could not be appointed and in the order dated 29.11.2006 passed during the pendency of the writ petition the ground given is that the post is not a promotional post. It is the correctness of this stands that has to be decided. Having considered the facts aforesaid, in my view, the grounds are wholly misconceived and the writ petition must succeed. From the facts, it would be clear that after the three years of carry forward of the vacancy of the scheduled tribe post, petitioner was the solitary scheduled caste candidate available who, are per government Circular, as noted above, should have been given the chance . The first ground taken by the respondent that he was junior most is in a way correct but misconceived. It is correct because in the first selection year there were four other scheduled caste candidates above him, as such he was the junior most but it is misconceived because petitioners chance for consideration came after three years in the 4th year, by when the first three had already been appointed and were not in the reckoning; the 4th had gone to Jharkhand upon creation of that 6 State and was not available for consideration. Thus only petitioner was left and as such it is wrong to say that he was the junior most rather he was the senior most, if not the solitary person available. These basic facts are not disputed by State. Now, I come to the second ground as contained in the order dated 29.11.2006, the only ground given there is an opinion having been taken, It is found that the post being not a promotional post and as such petitioner has no right to this. In my view, this is totally misconceived. It is apparent that the authorities have taken this view, that it is not a promotional post, in view of subsequent amendment in the Rules in respect of the cadre in the year 2003 by Enforcement Sub Inspector cadre Rule2003 formulate for the first time in May 2003, wherein the recruitment was directed to be made not by way of promotion but by direct recruitment. Petitioner’s right which petitioner had asserted and had crystallized much before these rules came into being petitioner’s appointment by promotion should have been considered and acted upon in the year 1999-2000 but his case was ignored because it is that year the roster point of scheduled tribe would get converted into scheduled caste because of non availability of schedule tribe for three consecutive carry forward years from 1997. Thus subsequent rules could not take away the rights of the petitioner which the petitioner acquired under the rules of 1991.Moreover petitioner has been asserting his right and his right cannot be defeated by subsequent amendment. State cannot be heard to say that I ought to have granted your 7 right but having failed to do so, now your right stands defeated. Thus, both the grounds as put forward by the respondent State for denying appointment by way of promotion to the petitioner are found not tenable. It is consequently held that petitioner was entitled to be considered for appointment by way of promotion to the post of Enforcement Sub Inspector and was wrongly denied the same. I therefore, direct the respondent to consider the petitioner for appointment as Enforcement Sub Inspector giving him seniority from the date he was entitled to such selection and appointment with all consequences. The writ petition is accordingly allowed. Namita ( Navaniti Prasad Singh, J.)