IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.663 of 2010 1. Ganpati Singh S/O Soti Singh R/O Vill.- Subha Nagar, P.S.- Kahalgaon, Distt.- Bhagalpur Versus 1. The State Of Bihar 2. The Chief Secretary, Govt. Of Bihar, Patna 3. The Commissioner-Cum-Secretary, Deptt. Of Personnel & Administrative Reforms, Govt. Of Bihar, Patna 4. The Commissioner-Cum-Secretary Animal Husbandry And Fishery Deptt., Govt. Of Bihar, Patna 5. The Director, Fishery Deptt., Govt. Of Bihar, Patna 4/ 29/08/2011 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner seeks quashing of the order dated 28.8.2009 by which he has been directed to be treated as a fresh employee appointed after 1.9.2005 and was therefore to be placed under the new Contributory Pension Fund Scheme and was not entitled to the benefits of a pensionable service as available prior to that date. Learned counsel for the petitioner submits that in pursuance of his being an applicant under advertisement No.99/98 for the post of Junior Engineer in the Scheduled Tribe category he came to be recommended by the Bihar Public Service Commission on 20.9.2002. Wrongly applying a new reservation policy which came into effect prospectively from 27.8.2002 appointment was sought to be denied. The 2 petitioner questioned the same in C.W.J.C. No.2726/03 unsuccessfully. The respondents then carried the matter in a letters patent appeal without success. Thereafter he has been provided appointment on 15.2.2006. It is submitted that not only is the petitioner deemed to be an appointee from the date that others in the recommendation have been appointed but that he is also entitled to protection of his seniority from the date that the last person junior to him came to be appointed in pursuance of such recommendation. He relies upon (2008) 7 SCC 728 (Balwant Singh Narwal Vs. State of Haryana). A counter affidavit and a supplementary counter affidavit have been filed by the respondents. The Court regrets to state that the respondents have only fulfilled the formality of filing a counter affidavit with no application of mind. The crux of the defence noticed in paragraph-7 of the first counter affidavit is that the petitioner had no right to be appointed in pursuance of the recommendation of the Commission. That is undoubtedly true but simultaneously the respondents had no right to deny the same without any justification in law. In essence, the stand of the respondents is that the fault is theirs, the benefit shall be theirs. 3 It has been stated in paragraph-27 of the writ application that the petitioner has repeatedly been representing for protection of his seniority also. Once the Court holds that the appointment was delayed at the behest of respondents wrongly and not for any reason attributable to the petitioner, he is deemed to be appointed on the date that the last person junior to him came to be so appointed in pursuance of the recommendation dated 20.9.2002. The Contributory Pension Fund Scheme having come into force on 1.9.2005 has no application to him and his services will be reckoned as pensionable under the old provision. In the case of Balwant Singh (supra) it has been held at Paragraph-9 as follows:- “9. …… Considering a similar situation, this Court, in Surendra Narain Singh v. State of Bihar held that candidates who were selected against earlier vacancies but who could not be appointed along with others of the same batch due to certain technical difficulties, when appointed subsequently, will have to be placed above those who were appointed against subsequent vacancies.” The impugned order dated 28.8.2009 is quashed. The writ application is allowed. KC ( Navin Sinha, J.)