IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15857 of 2005 1.ASHOK KUMAR SINGH, Son of Late Raghuni Prasad Singh, Resident of At & P.O. Patharahat, P.S. Dhanarua, District-Patna. 2.Ugrasen Prasad Singh, Son of Late Ram Yatna Singh, Resident of Village-Chhota Hasanpur, P.S. Khusarupur, District-Patna. 3.Sachidanand Son of Sri Sudeshwar Prasad, Resident of Village Adampur, P.O. Adampur Piplawan, P.S. Naubatpur, District-Patna. 4.Suresh Kumar Mandal Son of Late Moti Roy, Resident of Village Naya Tola, Phulwarisharif, P.O. & P.S. Phulwarisharif, District Patna. 5.Ankesh Kumar, Son of Sri Srinandan Yadav, Resident of Village Indrapuri Path, Naya Tola, Saristabad, P.O. G.P.O. P.S. Gardanibagh, District- Patna. 6.Rajesh Kumar Verma Son of Late Ishwar Dayal, Resident of Village Gulabighat Baxaria Tola, P.S. Mahendru, P.S. Sultanganj, District-Patna. 7.Naresh Kumar Son of Sri Ram Suyash Singh, Resident of Village Bhagwatipur, P.O. Bajitpur, P.S. Bihta, District-Patna. 8.Arbind Kumar Son of Late Tukan Prasad Singh, Resident of Village Pakartar, P.O. Nawasichak, P.S. Dhanarua, District-Patna. 9.Sanjeev Kumar Sinha, Son of Sri Baijnath Prasad Singh, Resident of Village-Chhotaki Masaurhi, P.O. and P.S. Masaurhi, District-Patna. Versus 1.THE STATE OF BIHAR through Chief Secretary. 2. The Divisional Commissioner, Bhagalpur Division Bhagalpur. 3.The District Magistrate, Banka. 4.The Deputy Development commissioner, Banka. 5.The Deputy Collector (Establishment) Banka Collectorate, Banka. 6.Deputy Collector Nazarat, Banka Collectorate, Banka. ----------- 4 20/8/2009 Heard Mr. Chitranjan Sinha, learned Senior counsel appearing on behalf of the petitioners and learned A.C. to A.A.G.2 for the State. With reference to the earlier order of this Court a draft 2 of Rs. 2,500/- has been handed over to Mr. Anil Kumar Sinha, learned counsel for the petitioner. Counsel for the State has, however, also filed an interlocutory application, i.e, I.A. No. 5190 of 2009 for recalling the order by which respondents were asked to pay the amount. This Court has found that now it has become a practice to not file a counter affidavit unless the matter is taken up and adjourned on a number of occasions. In that view of the matter, when there is nothing to show in the interlocutory application that any bonafide attempt was even made for filing of the counter affidavit, the order imposing cost of Rs.2,500/- cannot be recalled. It is, however, made clear that the Collector of the District would be at liberty to fix the responsibility and recover the amount of Rs.2,500/- from such erring person. Prayer in this writ application on behalf of the aforesaid nine petitioners reads as follows:- “That this is an application praying for issuance of a writ in the nature of a writ of mandamus or any other appropriate writ order or direction commanding the respondents to consider the case of the petitioners for appointment on Class-IV posts in the Muffasil Offices under the Banka District against the vacant available posts, from the panel prepared by the respondents in pursuance of the Advertisement No.1 dated 19.08.2004.” Mr. Chitranjan Sinha, learned Senior counsel with reference to the pleadings on record would submit that in course of time after filing of this writ application petitioner nos. 2, 4, 6, 7 3 and 9 have already been appointed on Class-IV posts of peons in the different offices within the control and jurisdiction of Banka district. He would, however, submit that if all the vacancies as available on the date of advertisement could have been filled-up even rest of the petitioner nos. 1, 3, 5 and 8 could have been easily accommodated, inasmuch as, they too had formed part of the same panel at Serial nos. 212, 215, 214 and 197 respectively. Mr. Sinha in this context would refer to certain statements made in paragraph 4 and 10 of the writ application to demonstrate that number of vacancies were more than 700 and to substantiate the same he also places reliance on Annexure-1 series, a requisition sent by four of the departments to the Collector about Class-IV vacancies. On the basis of the aforementioned averments it is contended that the plea taken by the respondents in their counter affidavit for filling up only 90 vacancies or making recommendations of 188 candidates is only with a view to deny the legitimate expectation of the petitioners which had emerged on account of inclusion of their names in the panel. On the other hand, learned counsel appearing on behalf of the State would submit that merely because names of the petitioners were included in a panel prepared pursuant to the advertisement issued by the Collector of Banka district, that would not vest any right to the petitioners for being appointed specially when none below them in the panel have been appointed or the persons including petitioner nos. 2, 4, 6, 7 and 9 who were 4 appointed, were in any way inferior in any manner including their ranking in the panel. In this context learned counsel for the State has also relied upon the statement made in paragraph 4 of the counter affidavit wherein it has been stated that the process of selection by way of an advertisement had been initiated in respect of only 90 vacancies and therefore it was not permissible for the Collector of Banka District to fill up more than 90 posts and travel beyond Serial no.176 of the panel by following the roster arrangement as per reservation policy of the State Government. In this context reliance has also been placed on the specific stand taken by the respondents in their counter affidavit that all other appointed amongst the petitioners, except petitioner no.6, who belongs to general category, as per roster arrangement, others including petitioner no. 2, 4, 7 and 9 were included in the panel and consequently appointed in capacity of candidates of the backward category. The respondents have also taken stand that the life of a panel itself came to an end on 14.12.2006 and therefore no mandamus could be issued by this Court for filling up any posts on the basis of old panel. Having considered to aforesaid submissions as also on taking into account the relevant pleadings on record this court would find that the stand taken by the learned counsel for the State is correct. It is true that the petitioners have tried to create an impression that there were 700 vacancies in all when the process of selection had started, but then there is lot of difference between 5 their bald assertion and the documentary proof thereof. The moment this Court would analyze four of the letters vide Annexure-1 series, it would become clear that number of vacancies was reported for different posts of Class-IV category requiring specialised knowledge for them. The selection however amongst the empanelled candidate peons was to remain confined for the post of peons only in view of earlier provisions made by the State Government and the Board of Revenue for filling up only the posts of peons and that is how the panel were to be prepared by taking into account the earlier services rendered by all the candidate peons including the petitioners. Thus, whatever other vacancies on different posts were reported by the different authorities in their requisition could not have been filled-up only from the panel sought to be prepared in terms of the advertisement. For example the vacancy as reported by the Civil Surgeon in his requisition dated 29.6.2004 as with regard to Male Ward Attendant, Female Ward Attendant, Sweeper, Cook, Assistant Cook, Gardener, Health Assistant etc. which would total 95 out of 105 vacancies could not have been filled up from the panel of the petitioners since they were the specialized job for specific category of persons for which the Health Department alone could have taken up steps for filling up those posts without interference of Collector of the district and only the post of peons could be filled up on the basis of requisitions submitted to the Collector by the different other field authorities. 6 Judged in this background, even if other similar requisitions on record by way of Annexure 1 series are examined it would be clear that number of vacancies on the post of peons or equivalent posts, involving no expertise or particular job experience, was not exceeding 90 which infact was also made known through the Advertisement issued by the Collector as has been asserted by the respondents in their counter affidavit in paragraph 4 and not specifically denied by the writ petitioners in their rejoinder affidavit. This Court, therefore will have to proceed on there were only 90 number of vacancies for which panel was prepared and consequently if from amongst the petitioners themselves five of them could be appointed on the basis of their higher placement in the panel, no indefeasible rights can be said to have accrued on petitioner nos. 1, 3, 5 and 8 to also claim their appointment only because their names were also included in the panel. Moreover as noted above the life of the panel has itself come to an end and none amongst those who are appointed have ranked below in the panel this court would find it difficult to issue any direction for their appointment. That being so, this Court would find no merit in this application and accordingly the same is hereby dismissed. Abhay Kumar (Mihir Kumar Jha, J.)