CIVIL WRIT JURISDICTION CASE No.154 OF 1994 1. SATYA PRAKASH VERMA, SON OF SHRI MOTI LAL VERMA, RESIDENT OF K.G. ROAD, NAWADAH, ARRAH, NEAR CHAMKILI KOTHI, POLICE STATION-NAWADA- ARRAH, DISTRICT-BHOJPUR. 2. JITENDRA BHATT, SON OF LATE RAJENDRA BHATT, RESIDENT OF VILLAGE-DEOKALI, POLICE STATION- GURARU, DISTRICT- GAYA. 3. ASHOK KUMAR, SON OF SHRI DWARIKA PRASAD SINGH, RESIDENT OF VILLAGE-FARIDPURA, POLICE STATION-NAUBATPUR, DISTRICT- PATNA. 4. GIRISH KUMAR MISHRA, SON OF LATE CHANDRA SHEKHAR MISHRA, RESIDENT OF MOHALLA- NAGESHWARI NEW COLONY, NEAR BAGESHWARI MANDIR, POLICE STATION-KOTWALI,TOWN AND DISTRICT-GAYA. 5. RAMESH THAKUR, SON OF SHRI RAMNANDAN THAKUR, RESIDENT OF VILLAGE-SHAHAR RAMPUR, POLICE STATION-NAUBATPUR, DISTRICT-PATNA. 6. VISHWANATH GUPTA, SON OF SHRI BARHO PRASAD, RESIDENT OF PANCH MOHALLA, POLICE STATION-CIVIL LINES, TOWN AND DISTRICT-GAYA …………. PETITIONERS -VERSUS- 1. STATE OF BIHAR, THROUGH THE SECRETARY, AGRICULTURE DEPARTMENT, NEW SECRETARIAT, VIKASH BHAWAN, PATNA. 2. THE DIRECTOR OF AGRICULTURE, AGRICULTURE DEPARTMENT, GOVERNMENT OF BIHAR, NEW SECRETARIAT, VIKASH BHAWAN, PATNA. 2 3. THE FINANCE COMMISSIONER AND SECRETARY, FINANCE DEPARTMENT, GOVERNMENT OF BIHAR, MAIN SECRETARIAT, PATNA. 4. THE BIHAR PUBLIC SEREVICE COMMISSION, THROUGH ITS CHAIRMAN, 15-BAILEY ROAD, PATNA. ----------------- RESPONDENTS. FOR THE PETITIONER :R.N.MUKHOPADHAYA, ADVOCATE FOR THE STATE: MR. NIVEDITA NIRVIKAR, ADVOCATE, G.P.-4 For B.P.S.C. – VIKASH KUMAR, ADVOCATE J.C. TO MR. P.K. SHAHI, SR. ADVOCATE. P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA Shiva Kirti Singh Hemant Kumar Srivastava,JJ. Heard the parties. 2. Six writ petitioners were appointed to the post of Statistical Enumerators (Agriculture), a class-III service in the Department of Agriculture, Government of Bihar pursuant to selection by Bihar Public Service Commission (respondent No. 4) although the advertisement for filling up class-III posts under the State Government was issued as Advertisement No. 06/85 by the Bihar State Subordinate Service Selection Board which was abolished in the month of February, 1992 and was succeeded by the respondent No. 4, Bihar Public Service Commission. 3. Petitioners were initially appointed in the pay 3 scale of Rs 535-765 which was subsequently revised to Rs 975-1540. Shorn of all unnecessary details, the grievance of the petitioners is that after recommending and appointing the petitioners to class-III posts in lower grade and pay scale, subsequently, the Bihar Public Service Commission entertained further vacancies from different departments and recommended persons having secured lesser marks than the petitioners, for appointment in class-III posts in higher grade/pay scale. The prayer made in the writ petition filed in the year, 1994 is to appoint them against class-III posts of Statistical Assistant (Agriculture) which at the relevant time had the pay scale of Rs 850-1360, subsequently revised to Rs 1600-2780. It appears that the revised scale of Statistical Assistant (Agriculture), a post to which the petitioners aspired has been subject matter of some controversy and in the case of Nagendra Sahani vs State of Bihar, this court has noticed the revised scale to be as Rs 1600-2780. 4. All these petitioners initially placed reliance upon judgment of this court in the aforesaid case of Nagendra Sahani which is Annexure-17 to second supplementary affidavit on behalf of the petitioners. That case is clearly distinguishable on facts because, therein the claim related to parity in pay scale between several class-III services. In that case, the court held that since appointments were made from the same combined competitive 4 examination to different services having same pay scale without any regard to marks or choice, subsequently the state could not reduce the pay scale of some of those services because that could have the effect of placing persons with higher marks in lower pay scales. So far the present case is concerned, the grievance of the petitioners is that they have been wrongly appointed in posts having lower pay scale when persons from the same competitive examination securing lesser marks have admittedly been appointed to posts having better pay scale, such as on the post of Statistical Assistant (Agriculture) as well as other equivalent posts in other departments as per averments made in Paragraphs-30 and 31 of the writ petition. Annexures- 10 & 11 to the writ petition support the aforesaid contention. As per list of subsequent appointees, contained in Annexure-11, at least 6 persons having lesser marks have been appointed in higher grade/pay scales and 4 of them are on the post of Statistical Assistant (Agriculture) which is admittedly promotional post for the petitioners as they were appointed in the lower grade post of Statistical Computer (Agriculture). 5. From the counter affidavits filed on behalf of the State and the Bihar Public Service Commission, it is clear that relevant facts are not in dispute. An explanation has been offered by the Commission that such discrepancy 5 in allotment of successful candidates to different services happened because of vacancies or requisitions for recruitment from different departments coming at different times. It has been explained by the Commission that initially all the available vacancies were exhausted including vacancies in the lower grades/pay posts in class-III and in that process, petitioners were given their due place in the lower grades as per marks obtained by them, i.e. the marks of 126 or 127 in aggregate. However, subsequently, vacancies were communicated by different departments for class-III posts in higher grades and in the light of some order of this court passed in writ jurisdiction as well as in contempt jurisdiction, the respondents had to make further recommendations and appointments and that led to discrepancies highlighted by the petitioners. 6. Whatever may be the explanation and justification for the lapses which took place leading to appointment of persons with lesser marks in higher posts/grades; it is beyond any doubt that the six writ petitioners have suffered legal injury for long years. Had the writ petition been heard and decided in 1994, this court might have considered to interfere with the entire appointment process relating to persons with lesser marks. But after passage of such a long time and not knowing whether such persons have received further promotions or 6 not, it is not found proper and just to undertake such an exercise. It is, however, necessary to compensate the petitioners in the best manner possible at this juncture of time. 7. From the supplementary counter affidavit of state, it transpires that 5 of the six petitioners have been promoted to the post of Statistical Assistant (Agriculture) in the pay scale of Rs 5000-8000 vide order dated 12.11.2007. So far petitioner No. 2, Jitendra Bhatt is concerned; learned counsel for the petitioner has made queries from his client and has submitted that he has also been subsequently promoted. It is obvious that the post which the petitioners have now got on promotion, was the post to which they should have been ordinarily appointed when persons with lesser marks were appointed against such posts or equivalent posts in other departments. Hence, in order to undo the justice to the petitioners, we direct the respondent- authorities to notionally treat the petitioners as having been appointed in the post of Statistical Assistant (Agriculture) and to accordingly calculate the dues of all the monetary benefits which they have lost accordingly, and pay the same to the petitioners within a reasonable period and in any case within six months. It is made clear that the benefits will include – the benefit of seniority over persons appointed as Statistical Assistant (Agriculture) out of same transaction but 7 having lesser marks than these petitioners. It is also made clear that this order may not be treated as a precedent and shall be applicable only to the 6 petitioners who have waited for justice such long years after filing this writ petition in the year, 1994. The writ petition is allowed to the extent indicated above. Patna High Court, The 7th day of September, 2010 AFR/AKV/- (Shiva Kirti Singh,J.) ( Hemant Kumar Srivastava, J.)