IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1526 of 2010 In (CIVIL WRIT JURISDICTION CASE 630/2004) 1. Bidya Nand Prasad, S/O Bhola Shah @ Bhola Prasad Sah, R/O Vill.- Jamuniya, P.S.- Bishambharpur (Kuchaikot), Distt.- Gopalganj…………………………………………….Appellant Versus 1. The State of Bihar 2. The Director, Directorate of Technical Development Industry Department, Vikash Bhawan, Bihar 3. The Shiv Shankar Mandal, S/O Late Bindeshwari Mandal, R/O Vill.- Madhuban, P.O.- Chakamhila, P.S.+Distt.- Sitamarhi, presently posted as Padachar in the Office of Assistant Director (Industries), Office of Quality Control, Bela Industrial Area, Muzaffarpur………………………………………Respondents For the Appellant: Mr. Bindhyachal Singh Mr. Jyoti Ranjan Jha For the State : Mr. G.K.Agrawal GA X Mr. K.R , AC to GA X --------------- 3. 07.12.2011 We would have considered the prayer made on behalf of the appellant to implead Shiv Shankar Mandal as a respondent if needed but it is not necessary in view of order proposed. The representation of the appellant has been rejected by the Director, Technical Development, Bihar on 18.4.2007 vide order contained in Annexure-7 in the writ proceeding. That order assigns only one reason for not offering appointment to the writ petitioner/appellant, the reason being that he belongs to extremely backward class whereas vacancy on account of non-joining of another 2 candidate was of general class. We find the said reason to be untenable in law because if a candidate of extremely backward class has the necessary merit, he can occupy a general post. We have heard the parties on merits. Learned counsel for the State placed reliance upon averments made in various sub-paras of para 5 of reply to interlocutory application-cum-supplementary affidavit available in the records of the writ case. From those averments, particularly sub-para (f) it is clear that the claim of the writ petitioner/appellant herein for appointment in place of Vijay Kumar Mishra who did not join was rejected not on account of there being any superior claim of any other candidate but only on the plea that allowing the appellant who belongs to extremely backward class to occupy the vacant post would amount to more than 50% reservation and would be impermissible. Had there been any other candidate found to be of superior merit, the general post could have been offered to him in preference to the appellant but that not being the case, the plea raised on behalf of the State noticed above is found to be untenable. Hence writ petition is allowed to the extent that the authorities are directed to consider the case of the 3 appellant/writ-petitioner for appointment as a general category on the vacancy caused due to non-joining of Vijay Kumar Mishra and pass appropriate orders within a period of two months from to-day. it is made clear that there is no dispute that the appellant was found fit for promotion and he was asked to produce his paper etc. for verification but only on account of orders passed in favour of one Shiv Shankar Mandal in successive writ petitions filed by him, the post on which the appellant was to be appointed went to Shiv Shankar Mandal who was not even having the minimum educational qualification required by the advertisement. In fact the authorities had earlier rejected the case of Shiv Shankar Mandal on that ground but on account of order of the Writ Court he came to be appointed. Since the appellant was not a party to that writ case, he challenged that order by preferring an appeal which was disposed of with liberty to the appellant that if his appointment is adversely affected, he would at liberty to pursue his remedy and challenge the appointment of Shiv Shankar Mandal. Had we found difficulty in the way of appointment of the appellant on the general seat, we would have considered impleading Shiv Shankar Mandal as per 4 prayer made in an interlocutory application filed before the Writ Court which was rejected by the order under appeal. But since that does not appear to be necessary at this stage, we leave the issue open to be raised in any other subsequent proceeding by the appellant, if the need arises. The appeal is allowed to the aforesaid extent. Mkc/ (Shiva Kirti Singh, J.) (Shivaji Pandey, J.)