IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.418 of 2007 ==================================================== 1. RAJ BALLABH PRASAD, SON OF SRI SUDARSHAN PRASAD, RESIDENT OF VILLAGE TELCHHA, POLICE STATION DHORN ASTHAN, JANATA BAZAR, DISTRICT SARAN. 2. AWADESH KUMAR SINGH, SON OF LATE GOPAL SINGH, RESIDENT OF TOWN CHHAPRA, POLICE STATION CHHAPRA, DISTRICT SARAN. 3. SANT LAL SINGH, SON OF RAMASHRAY PRASAD SINGH, RESIDENT OF VILLAGE SIURI, POLICE STATION MASRAKH, DISTRICT SARAN. 4. RAJKISHORE PRASAD SAHOO, SON OF SRI GHANSHYAM PRASAD SAHU, RESIDENT OF VILLAGE WAR, POLICE STATION MADANPUR, DISTRICT AURANGABAD. 5. ASHUTOSH KUMAR, SON OF SRI RAM RASIK RAM, RESIDENT OF TOWN AURANGABAD, POLICE STATION AURANGABAD, DISTRICT AURANGABAD. 6. GOPAL CHANDRA MAHANTA, SON OF SRI JAGNNATH MAHANTA, RESIDENT OF MOHALLA GUDRI RAI KE CHOWK, CHHAPRA TOWN, POLICE STATION BHAGWAN BAZAR, DISTRICT SARAN. 7. HEMANT KUMAR DAS SON OF SRI KANU CHARAN DAS, RESIDENT OF MOHALLA DAHIYAWAN CHHAPRA TOWN, POLICE STATION CHHAPRA SADAR, DISTRICT SARAN. 8. PANDAV CHARAN MAHANTO, SON OF SRI RAGHU NATH MAHTO, RESIDENT OF MOHALLA BHARAT MILAP CHOWK, CHHAPRA TOWN, POLICE STATION BHAGWAN BAZAR, DISTRICT SARAN. Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVT. OF BIHAR, PATNA. 2. SECRETARY, FOOD SUPPLY AND COMMERCE DEPARTMENT OF THE GOVT. OF BIHAR, PATNA. 3. COMMISSIOENR, SARAN DIVISION, CHHAPRA. 4. DDFCS, SARAN DIVISION, CHHAPRA. For the petitioners : Mrs. Namrata Mishra, Advocate. For the Respondents : Mr. Dewendra Narayan Singh, AC to AAG-6. ==================================================== 04. 14.07.2011 Heard learned counsel for the petitioners and the State. 2. Petitioners at the relevant time served in 2 the office of the Deputy Director, Food Supply and Commerce Saran Division, at Chapra on Class-III, IV post. By the impugned order bearing memo no.162 dated 28.01.2000, Annexure-3 passed by the Commissioner, Saran Division, Chapra. Petitioner nos.1 and 2 have been reverted to Class-IV post and services of petitioner nos.3 to 8 have been terminated on the ground that in the office of the Deputy Director, Food Supply and Commerce Saran Division at Chapra there does not exist any Class-III, IV post. Petitioner nos. 1 and 2 were reverted as two Class IV post was available in the said office. Aforesaid order dated 28.01.2000, Annexure-3 was challenged before this Court in C.W.J.C. No.10197, 12343 of 1999 on the ground that finding of the Commissioner, Saran Division contained in order dated 28.01.2000 that there does not exist any sanctioned Class-III, IV post in the said office is incorrect as from the reports and letters generated by the department of Food Supply and Commerce of the State Government it would appear that the post against which petitioners served on Class, III post stood sanctioned. This Court appreciating the 3 aforesaid contention as also the fact that order dated 28.01.2000 was passed without giving the petitioners opportunity to show cause set aside the said order and remitted back the matter to the Secretary, Food Supply and Commerce Department, respondent no.2 to grant the petitioners opportunity of being heard. In compliance of the orders of the High Court petitioners filed representation dated 21.04.2005, Annexure-5 annexing various documents as enclosure to the representation on the basis of which they claimed that Class III post was available in the office of the Deputy Director, Food Supply and Commerce, Saran Division at Chapra against which petitioners stood appointed between the years 1989-90. In compliance of the orders of the High Court Secretary, Food Supply and Commerce Department, Govt. of Bihar, Patna having analyzed the different documents annexed with the representation dated 21.04.2005 has passed order bearing memo no.3065 dated 31.10.2005, Annexure-6 whereunder learned Secretary, Food Supply and Commerce Department, Govt. of Bihar, Patna referred to and discussed each of the documents relied upon by 4 the petitioners and having discussed those documents concluded that there does not exist any sanctioned Class III post in the office of the Deputy Director, Food Supply and Commerce, Saran Division at Chapra against which petitioners were appointed. In the light of the aforesaid finding, the learned Secretary maintained the initial termination order dated 28.01.2000. 3. By filing the present writ petition petitioners have challenged the order of the Secretary, Food Supply and Commerce Department, Govt. of Bihar, Patna dated 31.10.2005, Annexure-6 and have submitted that from perusal of letter no.1695 dated 10.04.2000, enclosure V to the representation dated 21.04.2005, Annexure-5 it will appear that four Class III post and two Class IV posts were sanctioned for the office of the Deputy Director, Food Supply and Commerce, Saran Division at Chapra and submitted that as the learned Secretary while passing the impugned order dated 31.10.2005 has not accepted the sanction of four Class III and two Class IV post in the office of the Deputy Director, Food Supply and Commerce, Saran Division at Chapra his order is 5 vitiated. Contents of letter dated 10.04.2000 has been considered by the Secretary under order dated 31.10.2005 in paragraph-IV of the said order but the learned Secretary has not relied over the same in view of the fact that the contents of letter dated 10.04.2000 was modified under letter no.1101 dated 13.11.2000. In this connection, it is pointed out that modification of the contents of the earlier letter dated 10.04.2000 under subsequent letter dated 13.11.2000 will have no effect to the case of the petitioners as they stood appointed way back in the year 1989-90 when those posts stood sanctioned and there cannot be any retrospective abolition of the post so as to remove the petitioners from service. 4. Aforesaid submission of the learned counsel for the petitioner has been noted for being rejected. Reason being posts are created by the order of the State Government which is issued after the matter is considered by the appropriate committee of the State Government, namely, the Padwarg Samiti. In the instant case, neither any memorandum which was placed before the Padwarg Samiti for creation of Class- 6 III, IV post in the office of the Deputy Director, Food Supply and Commerce Division, Saran at Chapra has been placed on record nor any order creating those posts has been produced. In the chart appended with the letter dated 10.04.2000 statement has been made that four Class III post and two Class- IV post have been sanctioned for such office. There is no basis for such statement in the chart appended with letter dated 10.04.2000. If those posts were sanctioned the Government order sanctioning those posts should have been available in the secretariat as also in the office of the Deputy Director, Food Supply and Commerce, Saran Division at Chapra. Government order sanctioning those posts having not been made available, I am not in a position to doubt the finding of the Secretary, Food Supply and Commerce Department, Govt. of Bihar, Patna contained in the order dated 31.10.2005, Annexure-6. Accordingly, the writ petition challenging the said order is dismissed. 5. Before parting with this order this Court would like to observe that there is no dispute that the office of Deputy Director, Food Supply and 7 Commerce, Saran Division at Chapra was established in the year 1981 when Saran Division was created. It is also not in dispute that in other divisions of the State in the office of the Deputy Director, Food Supply and Commerce supporting Class-III, IV posts have been created, as such, for the office of the Deputy Director, Food Supply and Commerce Saran Division at Chapra as and when such posts are sanctioned by the competent authority in the State Government, the case of the petitioners shall be considered for appointment against those posts giving them not only the benefit of age relaxation but also preference in appointment in view of the working experience earned by them by serving in the said office. Rajesh/ ( V. N. Sinha, J.)