IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No. 14954 of 2005 Shatrughan Sharma, son of Late Chandradeep Singh, resident of Mohalla Jai Prakash Nagar, Road No. 5, Police Station – Digha, District – Patna, at present working as Lower Division Clerk in the Office of Bihar Public Service Commission ……………….. Petitioner Versus 1. Bihar Public Service Commission through Secretary, having its office at 15, Jawaharlal Nehru Marg, Patna 2. Secretary, Bihar Public Service Commission, Patna 3. Chairman, Bihar Public Service Commission, Patna 4. Quawar Javed, son of Abdul Gani, at present serving as Lower Division Clerk, in the office of Bihar Public Service Commission, Patna 5. Laliteshwar Paswan, son of Shatrughan Paswan, at present serving as Bill Clerk in the office of Bihar Public Service Commission, Patna …………….. Respondents ---------------------------------- For the Petitioner: Mr. Binod Mishra, Advocate For the BPSC: Mr. Shyam Sunder Pandey, Advocate For the opposite party no. 4: Mr. Azimul Hoda, Advocate For the opposite party no. 5: Mr. Shaillesh Kumar ****************** 05. 19.12.2011 Adhocism seems to be a hall-mark in the way the Commission was functioning at the relevant time. This fact seems to have emerged from the nature of dispute raised by the petitioner and the manner in which certain decisions appointing the petitioner on the post of Bill Clerk and the manner in which he was denied the fruit of the benefit arising from the Office Order, dated 29.07.2004, contained in Annexure – 5. Petitioner has also tried to assail the so called appointment or promotion of private Respondent Nos. 4 and 5, which may not be the main issue, which is required to be adjudicated in the present Writ Application. But after having heard counsel for the parties there are many an explanations, which may be required to be offered by the Commission in the manner in which Respondent Nos. 4 and 5 have suddenly been given exalted position of a Class-III post 2 though one was a casual employee and the other an Orderly. According to the petitioner, he was a Class-IV employee, working on the post of Orderly. He was permitted to sit for the limited competitive examination for appointment on certain Class-III post. This examination was held in the year 1992-1993 and the result declared in terms of Annexure- 2. Name of the petitioner under the head of Bill Clerk figures at Serial No. 4. For eleven years nothing came to be done on the basis of the said declared result till Annexure- 5 was issued under the order of the then Chairman of the Commission, indicating petitioner to have been appointed on the pay-scale of Rs. 3050- 4590/- vide order, dated 29.07.2004. It is the stand of the petitioner that he joined immediately and has worked on the said post, but he is being denied the benefit of the post and the pay by totally illegal act of the Commission which compelled him to file the present Writ Application. Petitioner has brought on record the so called Annexure- 7 series, which are Office Orders and file Notings to show that he was permitted to act and perform his responsibility of the Bill Clerk, which according to the petitioner is now labeled as Lower Division Clerk. During the pendency of the Writ Application itself Commission came to pass a detailed order, which is Office Order No. 36, dated 08.05.2007. By virtue of this order the Commission took decision and communicated to the petitioner taking into consideration circulars issued on 20.12.2000 and 01.08.2001 3 issued by the Department of Finance that post of Bill Clerk and Typist stood abolished and vacancies against post of Assistants were required to be filled up by the nomenclature of Lower Division Clerk. The so called appointment of the petitioner on the post in the given background became controversial and the Commission therefore never accepted his joining and put the matter at hold. After due deliberation, the Commission decided not to accept the joining of the petitioner, especially in the background that there was no post available on a Lower Division Clerk on which the petitioner could be accommodated with yet another dimension that one Shri Ram Singh, an earlier employee of the Commission was reinstated on the intervention of the High Court, when the decision of the Commission to dismiss him from service was set aside. So far challenge of appointment of Respondent Nos. 4 and 5 is concerned, there is some difficulty in accepting the claim of the petitioner or the prayer made in the Writ Application because their appointment was in no way related with the petitioner’s so called appointment and that was an independent decision may be legal or illegal, which can form the basis of yet another proceeding or challenge. But this Court would not delve into such a dispute looking at the main thrust of the relief which the petitioner has prayed for in the present Writ Application. In fact, the Court fails to understand as to why Respondent Nos. 4 and 5 have been impleaded and have been dragged into the controversy, unless it was with the object of oustering them to 4 create more space for the petitioner to be accommodated. Any prayer in this regard, therefore, is rejected, but with a rider that it does not mean that the Court certifies the correctness or otherwise of the appointment of Respondent Nos. 4 and 5 and in the manner in which it has been done. Counsel for the petitioner thereafter submits that in terms of the decision taken by the Government under Rule 67 of Bihar Service Code, a person appointed on a post against vacancy created by removal, termination or otherwise of an employee and if more than one year had gone past, then such person so appointed can not be removed from his post on return of such an employee. The Government is obliged to create a supernumerary post to accommodate such an employee. Submission of the counsel on this count is also not appreciated by this Court, because there is no clear-cut pleading, assertion or material to show that appointment of the petitioner was against the vacancy caused due to ouster of Shri Ram Singh. Neither the letter of appointment nor any subsequent material shows that, though there is some reflection of the same in Annexure- A to the counter affidavit, i.e., Order dated 08.05.2007 passed by the Commission. The question, therefore, now is confined as to whether the petitioner is entitled to claim difference of salary which the petitioner according to him became entitled to after issuance of Annexure - 5, because he continues to hold the substantive post of Orderly, though he had been appointed and made to work as a 5 Lower Division Clerk. Reading of Annexure - A coupled with the I.A. filed by the petitioner, which is I. A. No. 7672 of 2011, dated 14.11.2011, compels the Court to come to one decisive finding that the petitioner has never worked on the post of Lower Division Clerk despite issuance of Annexure- 5. If the petitioner had worked and performed his duties there would have been more tangible materials available and not of the sketchy kind, which have been annexed with Annexure- 7 series, as well as petitioner would have rushed to this Court when Annexure- A was communicated to him as well as brought to his notice when counter affidavit was served upon him on 15.01.2008. I.A. has only been filed on 14th of November, 2011 seeking quashing of Annexure- A as well as direction upon the respondents to pay the difference of salary. In absence of any decisive material in favour of the petitioner of his working on the post of a Lower Division Clerk pursuant to Annexure – 5, no direction for payment of difference of salary is required to be made in favour of the petitioner. The Court intentionally refrains from making any comment on the correctness or otherwise of Annexure- -A, because that is a separate cause of action for which the petitioner may have to invoke remedy separately before the Forum, chosen by him. Writ is dismissed with observation as above. SKM (Ajay Kumar Tripathi, J.)