IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.630 of 2004 BIDYA NAND PRASAD, son of Bhola Shah alias Bhola Prasad Sah, resident of village Jamaniya, P.S. Bishambharpur (Kuchaikot), District – Gopalganj. Versus 1. THE STATE OF BIHAR. 2. Director, Directorate of Technical Development, Industry Department, Vikash Bhawan, Bihar. ----------- For the petitioner: Mr. Jyoti Ranjan Jha. For the State: Mr. Kumar Ravish. ____ 06. 3.8.2010 Petitioner filed the present writ application initially for seeking a direction upon the respondents to give him appointment on the post of Peon/Nightguard pursuant to the advertisement no. 17-20 of 2003. Petitioner belongs to the category ‘extremely backward class’ and he claims a right for appointment under the said category. Petitioner was not appointed because there was only one post available in the category ‘most backward class’ and against the said vacancy one Shiv Shankar Mandal became the claimant, who ultimately came to be appointed. After such a development petitioner filed an I.A. No. 1733 of 2010 wherein he not only challenged the appointment of Shiv Shankar Mandal but also pleaded discrimination as such. It may be recorded that there were many bouts of litigation and various kind of writs came to be filed. Some of those orders have been brought on record in the I.A. and the rest in the supplementary counter affidavit which has been filed 2 in response to the I.A. on behalf of the State. One thing must be clarified at the outset that the appointment of Shiv Shankar Mandal has been made on the basis of a direction passed by this Court vide order dated 24.8.2004 in CWJC No. 9051 of 2003. To that extent the appointment of Shiv Shankar Mandal cannot be gone into in this writ application. The impugned order contained in annexure-7 dated 13.4.2007 has also been challenged by the petitioner by way of the said interlocutory application. This order has been passed in light of earlier direction issued by this Court in favour of the petitioner in CWJC No.2151 of 2005. The order states that petitioner cannot be appointed on the vacancy caused due to non-joining of Sri Vijay Kumar Mishra because the said vacancy was reserved for general category and it cannot be filled up by a candidate of the extremely backward class. This order though cryptic has now been explained in the supplementary counter affidavit by the State on the ground that giving appointment to the petitioner on the post reserved for open category would amount to exceeding 50 per cent reservation quota and that would be in violation of the decision of the Hon`ble Supreme Court and the various legislations on reservation policy. Mere existence of a vacancy does not give this petitioner a right to be appointed. When in the vacancy of EBC an appointment has already been made of which the petitioner 3 was a claimant. The order rejecting the claim of the petitioner therefore seems to be based on reasons which are sound in nature. No direction can be issued in favour of the petitioner for his appointment against the vacancy caused by non- joining of Sri Vijay Kumar Mishra. The writ application has no merit. It is dismissed. rkp ( Ajay Kumar Tripathi, J.)