IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8049 of 1997 1.NARESH KUMAR Son of Sri Lutan Pandit resident of village Alipur, P.S. Lakhisarai, P.O. Babhangama, District Lakhisarai. At present Assistant Teacher, Primary School, Jaitpur, Bind Tola, District Lakhisarai. 2.Krishna Nandan Rai son of Sri Uchit Rai resident of village Govind Bigha, P.S. and District Lakhisarai, At present posted as Assistant Teacher Government Middle School, Mustafapur, P.S. Surajgarha, district Lakhisarai. 3.Dasrath Prasad son of Sri Anandi Mahto resident of village Khawa Chandra Tola, P.S. Surjgarha, district Lakhisarai. At present posted as Assistant Teacher, Primary Girl School Balgudar, lakhisarai. 4.Sankar Prasad son of Sri Basudeo Rajak resident of village Manshur Chak, P.S. Lakhisarai, district Lakhisarai. At present posted as Assistant Teacher, Middle School Manikapur, Lakhisarai. 5.Pramod Kumar son of Sri Suresh Singh resident of village Rampur Kiul, P.S. Surjagarha, Dist. Lakhisarai. At present posted as Assistant Teacher Primary School Ganga Sarai, district Lakhisarai. 6.Sanjay Kumar Son of Sri Faudi Sao resident of village Purani Bazar Lakhisarai, P.S. and Dist. Lakhisarai. At present posted as Assistant Teacher Sri Krishna Middle School Barahia, Dist. Lakhisarai. Versus 1.THE STATE OF BIHAR 2.The Director, Primary Education, New Secretariat Patna, Bihar, Patna. 3.Regional Deputy director, Bhagalpur. 4.The District Magistrate Munger. 5.District superintendent of Education, Munger Jamui. 6.The Sub-Divisional Education Officer, Lakhisarai. ----------- 8 20.7.2010 No one appears for the petitioner. Counsel for the State is present. In this writ application prayer of the petitioners reads as follows:- “That the present writ application is directed with a prayer to quash the letter dated 28.7.1995 issued by Respondent no.4 by which the appointments of the aforesaid petitioners have been cancelled, due to procedural mistake. And direct the Respondents to count the service of the petitioners from the First appointment date and also direct the 2 Respondents to make payment of salary of the petitioners from first appointment date by issuing an appropriate writ/ writs, direction/ directions to the Respondents and to show cause as to why the service of petitioners may not be counted from the earlier appointment date and salary of petitioners may not be paid from the earlier appointment date and after hearing the parties and cause if any shown and after return of the Rule direct the Respondents to Act according to law and paid their salary for the period they have been wrongly dismissed and their seniority be considered in service from first appointment.” With regard to the aforementioned prayer the respondents have filed counter affidavit and supplementary counter affidavit and it is in the supplementary counter affidavit that the issue has been made absolutely clear, wherein it has been stated as follows:- “In this connection it is submitted that the Bihar Public Service Commission has recommended the name of 1280 candidates for appointment to the post of Assistant Teacher in Munger and Jamui District against only 920 vacant post. That as because only 920 vacancies was existing then this fact was pointed out by the District Superintendent of Education and communicated to the Bihar Public Service Commission for amendment in the aforesaid list of 1280 candidates upon which the Bihar Public Service Commission had cancelled the previous list and sent the amended list of 873 candidates for appointment. It is relevant to mention here that in the meantime the District Superintendent of Education, Munger without the decision of Establishment Committee, distributed the appointment letter to the 1280 candidates of four District namely Manager, Sheikhpura, Lakhisarai and Jamui vide his letter no.13460 to 14548 dated 11.7.1995. That the aforesaid fact has been brought to the notice of the Director, Primary Education upon which the Director (P.E.) sought on explanation from the then D.S.E, Munger vide his memo no.764 dated 17.7.1995, and, further, directed to appoint only 873 candidates as per the recommendation of the Bihar Public Service Commission. Accordingly, the D.S.C. 3 Munger, Sri Premshankar Srivastava had cancelled all the appointment vide his letter no. 14549- 15655 dated 28.7.1995 and D.S.E. Munger calculated vacancy as on 31.8.95 to be 1315 and as such B.P.S.C. was requested to send fresh recommendation list accordingly B.P.S.C. sent fresh list under letter no.693 dated 15.11.95 considering which appointment letter was issued as per the decision of the District Education Establishment Committee, Lakhisarai, hence the delay.” It is thus apparent that the whole issue arose on account of fresh recommendation made by the Bihar Public Service Commission which on being reported of correct number of vacancies had cancelled the earlier recommendation and thereafter had made fresh recommendation. Once this aspect becomes clear, the earlier appointment of the petitioners was based on incorrect recommendation of B.P.S.C. and the same was cancelled by the State Government they cannot claim any right on the basis of their such earlier appointment merely because they had been subsequently given fresh appointment with others who were earlier left out from the zone of consideration and appointment due to admitted mistake on the post of B.P.S.C. The petitioners therefore can count their seniority and length of service only effect from the date they were subsequently appointed in the light of the revised recommendation of B.P.S.C. That being so, there is no merit in this application and the same is, accordingly, dismissed. Abhay Kumar ( Mihir Kumar Jha, J.)