NAWAL KISHORE SINGH v. STATE OF BIHAR — 1976 DIGILAW 193 (PAT)

JUDGMENT : B. D. Singh, J. This application by Nawal Kishore Singh under Articles 226 and 227 of the Constitution of India is directed against the ORDER :dated 12 1.1976 Annexure 6) passed by the Deputy Secretary, Community Development and Planning (Rural), Government of Bihar, (respondent no. 2) promoting Balmiki Sharma (respondent no. 5) to the post of accountant in the office of the District Superintendent of Education, Gaya, and also against the ORDER :dated 15.1.1976 (Annexure 7) passed by the Administrator, District Board, Gaya, (respondent no. 3) communicating the above ORDER :of promotion contained in Annexure 6 to the persons concerned. 2. In ORDER :to appreciate the point involved in this application it will be necessary to state some material facts contained in the petition as well as in the various counter affidavits and the supplementary affidavits filed on behalf of the respondents and the petitioner, respectively. 3. In the main application the petitioner has stated that he is an employee of the District Board, Gaya, and has been provisionally transferred and posted to the office of the District Superintendent of Education, Nawadah. He was appointed initially as a Hindi typist in the service of the District Board, Gaya, by its Chairman under his ORDER :dated 10.9.1949. He was confirmed on 18.2.1950. According to him, his services were quite satisfactory and, therefore, he was promoted to the higher rank of Upper Division on 5.7.1958. In the gradation list (Annexure 1). which was prepared and circulated on 18.8.1972, his name finds place at serial no. 5 as upper division assistant, whereas the name of respondent no. 5 finds place at serial no. 11 in the lower division assistants. It would also show that respondent no. 5 was working as an officiating upper division assistant from 16.6.1969. Therefore, according to the petitioner, he was much senior in length of service to respondent no. 5, that is, senior to him by 11 years in upper division. On 24.10.1973 both the petitioner and respondent no. 5 passed the local body's accountantship examination (rural). The employees of the District Board are posted either in the Board Office or in the office of the District Engineer, or the office of the District Superintendent of Education or in those of different local boards, as stated by the petitioner in paragraph 8 of the petition. 5 passed the local body's accountantship examination (rural). The employees of the District Board are posted either in the Board Office or in the office of the District Engineer, or the office of the District Superintendent of Education or in those of different local boards, as stated by the petitioner in paragraph 8 of the petition. In other part of his application he further stated that for the purpose of promotion the employees of a particular grade serving in any of the aforesaid offices are considered together. The petitioner has been working as cashier in the grade of upper division in the office of the Superintendent of Education, Gaya. Subsequently, he was deputed to the newly created office of the Superintendent of Education, Nawadah, by a provisional transfer by the ORDER :dated 4.8.1974 (Annexure 2). The Bihar Cabinet took a decision on 30.1.1971 to take the services of the assistants and the 4th grade employees of the District Board from the District Board to Government, who were attached with the office of the District Superintendent of Education. A copy of the said resolution contained in memo no. 7-56-0497 (73-67) (Sa) Patna the 9th November, 1973, has been annexed with the petition as Annexure 3'. 4. That the case of the petitioner further is that in pursuance of the notification (Annexure 3), the District Superintendent of Education, Gaya, (respondent no. 4) under his letter dated 22.2.1974 (Annexure 4) asked the District Board employees of his office to give their option within three days of the; receipt of the letter to remain in the District Board service or to go in Government service. The petitioner opted for the Government Service and gave his consent on 13.3.1974, within three days of the receipt of Annexure 4. In paragraph 15 of his application the petitioner stated that despite the aforesaid development the District Board authorities did not clarify the status of the petitioner, who continued to suffer wherever there arose any occasion for promotion to higher post. In other part of his application he stated that wherever there arose any vacancy in the office outside that of the Superintendent of Education, the petitioners case was not considered on the ground that he was posted in the office of Superintendent and that he had opted for Government service. In other part of his application he stated that wherever there arose any vacancy in the office outside that of the Superintendent of Education, the petitioners case was not considered on the ground that he was posted in the office of Superintendent and that he had opted for Government service. But when any vacancy occurred in the office of the Superintendent of Education, the petitioner was bypassed, though he deserved promotion in view of his established seniority. In February, 1975, there arose a vacancy of assistant accountant in the office of the District Engineer, on which respondent no. 5 was promoted by ORDER :dated 24.2.1975 (Annexure 5), ignoring the claim of the petitioner, on the ground that he was in the office of the District Superintendent and that he had opted for Government service. Subsequently, there arose a vacancy in the office of the Superintendent of Education for the post of accountant. Although, the petitioner is the senior most upper division assistant, having passed accountantship examination, in the office of the District Superintendent of Education, Gaya, he was not considered for promotion by the impugned ORDER :contained under Annexure 6 and respondent no. 5 was promoted by that ORDER :. This was communicated to respondent no. 5 by the impugned ORDER :contained in Annexure 7. The petitioner has submitted in his application that respondent no. 5 had been given unmerited and illegal promotion arbitrarily, by ignoring the claim of the petitioner. The petitioner pointed out that Sri M. Barno, District Engineer, had written to the Administrator pointing out serious acts of omission and commission of respondent no. 5 while acting as a cashier in the office of the District Engineer. He had complained of serious allegations of insubordinations and lapses in financial matter. In December, 1975, there had been a direction by the Government to initiate disciplinary action against respondent no. 5 under letter no. 3833 dated 3.12.1975. In spite of that, respondent no. 5 had been promoted. The petitioner submitted that he held a satisfactory record of service extending over 26 years and he was censured only once during the said long period. In the application, the petitioner has, therefore, prayed for quashing of Annexures 6 and 7 and for direction to respondents 1 to 4 to consider the case of the petitioner for promotion in accordance with law. It may be mentioned that respondent no. In the application, the petitioner has, therefore, prayed for quashing of Annexures 6 and 7 and for direction to respondents 1 to 4 to consider the case of the petitioner for promotion in accordance with law. It may be mentioned that respondent no. 1 is the State of Bihar. 5. Separate counter affidavits have been filed on behalf of respondents 1, 3 and 5, inter alia justifying the promotion of respondent no. 5 and asserting therein that the case of the petitioner was duly considered. It will be relevant to mention at this stage the assertion in paragraph 2 of the counter affidavit filed on behalf of the State of Bihar (respondent no. 1) on 28.7.76. It was stated therein that the petitioner was senior to respondent no. 5 in the cadre of upper division assistants. The petitioner as well as respondent no. 5 passed local body's accounts examination in 1973. A post of assistant accountant fell vacant in 1973 in District Board, Gaya, but due to bad financial position of the Board it could not be filled up till 1975. In February, 1975, it was decided to fill up the post and the Government considered the confidential remarks and all relevant papers of the petitioner and respondent no. 5, the two claimants of the post of assistant accountant. There were bad confidential remarks against the petitioner during the years 1966-67, 1970-71, 1971-72 and 1973-74. Besides, the petitioner was involved in a fraud case of submitting false bill for travelling in the first class, though he actually did not travel at all and for which the petitioner was later punished. In that view of the matter, the petitioner was superseded and respondent no. 5 was promoted to the rank of assistant accountant in the office of the District Engineer, Gaya. When the post of accountant fell vacant, the petitioner's case was not considered, because the post of accountant is generally filled up from the cadre of assistant accountants and in case no assistant accountant is available then only other persons, who have passed District Board Local Bodies Accounts Examination (Rural Area) either partly or wholly are considered. In the instant case, since respondent no. 5 was already assistant accountant, he was promoted as accountant in the impugned older. 6. Mr. In the instant case, since respondent no. 5 was already assistant accountant, he was promoted as accountant in the impugned older. 6. Mr. Radha Raman, learned counsel appearing on behalf of the petitioner, has raised following points for consideration :- (i) Employees in the office of the District Superintendent of Education (respondent no. 4) have become Government servants from 1.1.71 in view of the ORDER :s dated 9.11.73, contained in Annexure 3' mentioning therein that the clerks in the Department of respondent no. 4 would be treated as Government servants. By subsequent ORDER :dated 22.2.74 (Annexure 4) issued by respondent no. 4 asking the clerks to give in writing their option whether they intended to remain employees of the Board or that of the Government, and also in view of the Ordinance of 1976 dated 6.2.1976 While working in the office of respondent no. 4 the petitioner opted for Government service on 13.3.74 and he being the senior-most in the said Department was alone entitled to be promoted as against respondent no. 5 who was working in the office of the District Engineer and, therefore, respondent no. 5 had no right of promotion in the office of respondent no. 4. The District Board is mainly divided into three wings : (a) Education, (b) Engineering and (c) General Health, etc. Therefore, according to petitioner, respondent no. 5 being in the second wing of the Board namely, Engineering whereas the petitioner being in the first wing, namely, Education, the petitioner alone had a right to be considered because of his seniority. (ii) Assuming that all the three wings of the District Board are one, even then the petitioner being the senior most upper division assistant was entitled to be considered for promotion. (iii) Admittedly, the petitioner was not considered for promotion to the post of accountant, as stated in the counter affidavit, filed on behalf of respondent no. 1, only because, according to State, such promotions are generally available only to assistant accountants. Such consideration, if at an, is merely an extraneous consideration and has no nexus. 7. Before I take up for consideration the points, referred to above, it will be necessary to deal with the preliminary point raised by Mr. Shyam Nandan Prasad Sharma, learned counsel appearing on behalf of respondent no. 3. Such consideration, if at an, is merely an extraneous consideration and has no nexus. 7. Before I take up for consideration the points, referred to above, it will be necessary to deal with the preliminary point raised by Mr. Shyam Nandan Prasad Sharma, learned counsel appearing on behalf of respondent no. 3. He submitted that in the instant case the petitioner is guilty of suppression of material facts in his main application and on that ground alone his application should be rejected. He pointed that the petitioner had not mentioned about his adverse remarks and the material fact about his censure. In this connection he drew our attention to the statement made in paragraph 2 of the counter affidavit filed on behalf of respondent no. 3 on 13.5.76, wherein it was stated that the service record of the petitioner, including his character roll, were not only unsatisfactory, but, so much so, that he had defrauded the District Board by charging a first class train fare for his alleged journey on 28.1.66, for which a thorough enquiry was made and more than sufficient opportunities were provided to the petitioner to show cause regarding the said fraud committed by him. The petitioner unnecessarily delayed the matter for a long time and also made several contradictory defences. However, respondent no. 3 finally decided the matter by his ORDER :dated 1.11.75 (Annexure A thereto) by which he held the petitioner guilty for the said fraud and he was censured. Respondent no. 3 as well as District Superintendent of Education, Gaya, further made various adverse remarks against the petitioner. A true copy of some of the relevant remarks, recorded by various authorities, is Annexure 'B' to the said counter affidavit. 8. In paragraph 2 of the counter affidavit filed on behalf of respondent no. 1 on 28.7.76 learned counsel pointed out that the petitioner was found fit to be superseded on grounds of bad confidential remarks during the years 1966-67, 1970-71, 1971-72 and 1973-74, and being also found involved in fraud case of submitting false bill for his travel in the first class, though he actually did not travel at all and for which the petitioner was later punished. Another instance of suppression, pointed out by learned counsel for the respondent no. 3, is that he had made a representation dated 12.9.75, addressed to the Administrator, District Board, Gaya (respondent no. Another instance of suppression, pointed out by learned counsel for the respondent no. 3, is that he had made a representation dated 12.9.75, addressed to the Administrator, District Board, Gaya (respondent no. 3), (a copy of which is marked Annexure ‘H’ to the supplementary affidavit filed on behalf of respondent no. 3 on 21.8.76), wherein he had clearly stated that still he was in the service of the District Board, and this belies his assertion that he had opted for the Government service on 13.3.74. Learned counsel further submitted that in paragraph 12 of the rejoinder filed by the petitioner on 16.8.76 to the counter affidavit of respondent no. 3, he had stated that at the relevant time when the vacancy of the post of accountant in the office of the District Superintendent of Education, Gaya, arose, the petitioner was on deputation at Nawadah and submitted his representation for the said post duly forwarded by the Superintendent of Education Nawadah, by his memo no. 272 dated 13.9.75 (Annexure 9 thereto) and the same was forwarded to the Deputy Secretary to the Government of Bihar (respondent no. 2) by respondent no. 3 vide his memo no. 1226 dated 9.10.75 (Annexure 10 thereto). Learned counsel for respondent no. 3 submitted that he ought to have also enclosed a copy of his representation (Annexure H) with his main application but he did not deliberately do so, because it would have gone against his contention that he had opted for Government service as early as 13.3.74; and that he was in Government service. 9. In ORDER :to find support to his contention he has relied on (1) Gaya Prasad V. Union of India (A.I.R. 1955 Patna 305) and he drew our attention to paragraph 25 at page 316 where it was observed that the learned Government Advocate in opposing the application also contended that the writ application should be thrown out on the simple ground that the petitioner in support of his application under Article 226 of the Constitution suppressed all the material facts of the case and did not refer at all to any fact relating to the enquiry held against him and relating to the two opportunities given to him, firstly, to show cause against the charges framed against him, and secondly, to show cause against the actions which were proposed to be taken against him. It was observed that there was no doubt that the original application of the petitioner filed in Court under Article 226 was completely silent on the facts stated above. In that application he had merely referred to the history, of his service in the railway department, then dispute between him and Karam Singh, and then the fact that Karam Singh got him removed from service with the help of Mr. A.K. Sarkar, Superintendent Transportation, and lastly to the point that the ORDER :of removal against the petitioner was not in accordance with rule 1708 and, therefore, invalid. It was held that it clearly supported the contention of the learned Government Advocate that the petitioner completely with held the material fact from the Court in his application under Article 226, and, on that ground alone, he forfeited his right for a writ. Learned counsel pointed out that in that case the decision in the case of (1) Rex V. Kensington Income Tax Commissioners (1917) 1 K.B. 486 (E) was also referred to. In that case Viscount Reading, C, J. observed: "Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is the power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived." 10. In my opinion, the above observation is of no avail to the learned counsel for respondent no. 3 in the instant case, as, according to me those suppression of facts as it will be discussed to the later part of this JUDGMENT :, have not been made by the petitioner in ORDER :to mislead this Court nor the Court feels that it has been deceived. 11. Mr. Sharma has also relied in this connection on Ram Saran Sharma V. The State of Bihar (1958 B.L.J.R. 591). In that case also the observation made in the case of Rex, referred to above, was relied. 11. Mr. Sharma has also relied in this connection on Ram Saran Sharma V. The State of Bihar (1958 B.L.J.R. 591). In that case also the observation made in the case of Rex, referred to above, was relied. Mr. Sharma referred to paragraph 4 of the JUDGMENT : at page 592 where it was observed by their Lordships that they did not wish to go into the merits of the argument advanced, because they considered that the application must fail upon the ground that there was suppression of material facts by the petitioner, and the petitioner was not entitled to the grant of a writ To put it differently, there was want of uberrima fidea on the part of the petitioner, and the grant of a writ being in the nature of a discretionary relief could not be given in the case. It was contended by learned Government Advocate that there was a deception practised by the petitioner. It was pointed out that the licence was taken out by the petitioner on 13-8-56 though 13 days before the Commissioner had revoked his sanction. It was also pointed out that the licence was not actually signed by the District Magistrate but by the Second Officer and it was stated by the learned counsel for the opposite party that no ORDER :of the District Magistrate was issued granting licence to the petitioner. Therefore, it was argued that the material facts had not been disclosed in the application and that the circumstances suggested that there was deception practised by the petitioner in obtaining the licence on 13-8-56 from the office of the District Magistrate. It was held that the conduct of the petitioner was not above board, and there had been suppression of material facts and such conduct disentitled the petitioner from obtaining relief by way of a writ under Article 226 of the Constitution. 12. In my view, the above observations also, which are similar to the earlier ones, are not applicable to the facts and circumstances to this case as, according to me, those suppressions were not deceitful and it cannot be held that the petitioner has practised deception on the Court. Therefore, in my opinion, there is no merit in the preliminary point raised by counsel for respondent no. 3. 13. Therefore, in my opinion, there is no merit in the preliminary point raised by counsel for respondent no. 3. 13. I will, therefore, proceed to examine the application of the petitioner on merit and it will be convenient to take up point nos. (i) (ii) and (iii) together, as they are allied. Learned counsel for the petitioner submitted that according to the gradation list (Annexure 1) which was prepared and circulated on 18-8-72 he was at serial no. 5 as U.D. assistants whereas respondent no. 5 was at serial no. 11 in the U.D. assistants. On that account alone, he was entitled to have been considered for promotion to the post of accountant. On the other hand, learned counsel for the respondents contended that the gradation list had not become final and it was tentative, as objections were being invited. In my opinion, the submission of learned counsel for the respondents in this regard cannot be accepted in view of the fact that in the statement made in paragraph 2 of the counter affidavit of the State, it was admitted that the petitioner was senior to respondent no. 5 in the cadre of U.D. assistants. Whether the gradation list was final or not is of no consequence when it is the admitted fact that at the relevant time the petitioner was senior to respondent no. 5 in the cadre of U.D. assistants. 14. As regards the alleged adverse remarks against the petitioner, learned counsel for the petitioner, submitted that most of the adverse remarks contained in Annexure 'B' of the counter affidavit of respondent no. 3 were communicated to the petitioner beyond the prescribed period of three months Mr. Radha Raman had also referred to the Government circular dated 24.5.1966 in ORDER :to show that the communication of adverse remarks against the employees within the prescribed period has been emphasised. He submitted that such kind of directive Instruction has got the force of law. In this connection he has relied on (2) A. Junus V. The Controller (1970 S.I.R. 318). In paragraph 3 of the supplementary affidavit of respondent no. 3 filed on 21.8.76, year-wise adverse remarks communicated to the petitioner are stated as follows : Adverse remarks Communicated by 1. 1966-67 Vide D.B. Memo. No. 121C dated 3.1.72 2. 1970-71 passed on 27.12.71 Vide D.B. Memo No. 121C dated 3.1.72 3. In paragraph 3 of the supplementary affidavit of respondent no. 3 filed on 21.8.76, year-wise adverse remarks communicated to the petitioner are stated as follows : Adverse remarks Communicated by 1. 1966-67 Vide D.B. Memo. No. 121C dated 3.1.72 2. 1970-71 passed on 27.12.71 Vide D.B. Memo No. 121C dated 3.1.72 3. 1971-72 passed on 23.5.72 Vide D.B. Memo No. 72C dated 30.10.72. 4. 1973-74 passed on 31.12.74 Vide D.B. Memo No. 70C dated 31.3.75. Learned counsel for the petitioner submitted that as against ‘censure’ for the alleged submitting of false bill relating to the journey during 1966, the petitioner has filed an appeal to the Government, which is still pending. In ORDER :to find support to his contention he has relied on (3) Vaidyanth Prasad Sinha V. State of Bihar (1969 P.L.J.R. 410) and he drew our attention to paragraph 4 thereof at page 412 where it was observed that an affidavit-in-reply had been put in by the petitioner. He had given two annexures to that affidavit-in-reply, marked Annexures 9 and 9/1. Annexure 9 was a circular letter dated the 11th August, 1962, issued by Shri S.J. Majumdar, the then Chief Secretary to the Government of Bihar, directing all Departments of Government to communicate adverse remarks made against the Government servants to the persons concerned. The same thing was reiterated by Shri S.N. Singh, the then Additional Chief Secretary to the Government of Bihar in his letter dated the 24th May, 1966 (Annexure 9/1 of that petition). It was also stated in that letter that no body should be made to suffer because of un-communicated adverse remarks. Learned counsel for the petitioner in the present case pointed out that Annexure 9/1, referred to above, is the circular dated 24.5.66, on which the petitioner also relies. 15. Mr. J.C. Sinha appearing for respondent no. 5 has submitted that even assuming that all the adverse remarks were communicated to the petitioner after the period of three months, but that by itself would not improve the case of the petitioner for being considered for promotion. Besides, the period prescribed was mere director. Mr. Sinha submitted that the time limit prescribed in the circular is not mandatory and it is not the essence of the rule. In ORDER :to find a support to his submission he has relied on (4) Jay Narain Mishra V. The State of Bihar (A.I.R. 1973 Patna 377). Besides, the period prescribed was mere director. Mr. Sinha submitted that the time limit prescribed in the circular is not mandatory and it is not the essence of the rule. In ORDER :to find a support to his submission he has relied on (4) Jay Narain Mishra V. The State of Bihar (A.I.R. 1973 Patna 377). In that case rule 5 of the Bihar Non-Government High Schools (Appointment and Service Conditions of Teachers) Rules (1955) came up for consideration. It was observed by Madan Mohan Prasad, J. that the time limit was not the essence of Rule 5. It was only an instruction for guidance of the officers. If it were to be held mandatory, the final word, which rested with the District Education Officer or the President of the Board would disappear and the provision relating to approval which was mandatory would become infructuous. Not to observe the time limit might be a dereliction of duty. But that did not mean that the Managing Committee's recommendation had been approved by him or that the approval sent by him after the said period was invalid. To repel this argument learned counsel for the petitioner referred to para 14 of the rejoinder filed by the petitioner on 14.8.76 to the counter affidavit of respondent no. 1, on the basis of which he submitted that the petitioner was not ignored on account of adverse remarks at the time of promotion of respondent no 5. as assistant accountant; nor they could have been taken into consideration, as it is evident that the petitioner was offered a higher post of accountant for the District Board, Nawadah, on 19.5.73 by the Deputy Secretary to Government, which was done after scrutiny of service records. A copy of the said ORDER :offering the petitioner the said post of accountant is marked Annexure 8' to the said rejoinder. The said post, however, the petitioner had declined to accept. It may be noticed that the adverse remarks up to 1971-72 were passed on 23.5.72 vide item nos. 1, 2 and 3 of the chart given above. Therefore, those remarks were evidently under scrutiny of the Deputy Secretary and after scrutinising those remarks he had passed the ORDER :as contained in Annexure 8'. 16. In view of the ORDER :passed (Annexure 8) learned counsel for the petitioner submitted that his adverse remarks, if any, were wiped off. 1, 2 and 3 of the chart given above. Therefore, those remarks were evidently under scrutiny of the Deputy Secretary and after scrutinising those remarks he had passed the ORDER :as contained in Annexure 8'. 16. In view of the ORDER :passed (Annexure 8) learned counsel for the petitioner submitted that his adverse remarks, if any, were wiped off. He further pointed out that the District Superintendent of Education (respondent no. 4), who had given the alleged adverse remarks against the petitioner, was also one of the members of the committee in which the ORDER :contained in Annexure 8 was passed. In ORDER :to find support to his submission, he relied on a later part of the observation in paragraph 4 of Vaidyanath Prasad Sinha's case, referred to above, at page 413, as follows :- “....But, apart from the fact that, only a few days before the passing of the impugned ORDER :, the petitioner was allowed to officiate as Head Assistant from the 1st July, 1968 to the 18th August, 1968, as stated by him in his writ application a fact which is not controverted in the counter affidavit-it is important to note the statement in the affidavit-in reply that, even after the passing of the impugned ORDER :, Sri J.C. Jetli, the same District Magistrate who had passed the said ORDER :, recommended the case of the petitioner in his letter dated the 4th/9th September, 1968, written to the Food Commissioner, Bihar, for being appointed as Junior Accounts Inspector, a post which is even higher in grade than the post of the selection grade assistant....” In this connection he also relied on (5) Chandramouleshwar Prasad V. The Patna High Court (A.I.R. 1970 Supreme Court 370) and he drew our attention to paragraph 9 of the JUDGMENT : at pages 375-76, the relevant portion of which reads thus:- “.... The cause of the super-session of the petitioner was the adverse remarks against him by some of the former Judges of the High Court. Whatever be the effect of these remarks the petitioner may be considered to have outlived them by reason of the fact that the High Court recommended his case for posting as an Additional District and Sessions Judge in November, 1962." In my opinion, the submission of learned counsel for the petitioner on the facts and circumstances of the instant case is well founded. Therefore, it cannot be held that those adverse remarks were the reasons for his not being appointed as assistant accountant in the office of the District Engineer in preference to respondent no. 5 on 24-2-75 under Annexure 5. Besides, the adverse remarks relating to 1973-74, which is of course subsequent to Annexure 8, is very insignificant. It reads: “ fo’oluh; ugha gSA LoLFkA e`nqHkk”kh ” The Administrator, District Board (respondent no. 3) has written as against this 'No comment'. Therefore, it cannot be considered that this could have been the cause for his not considering the petitioner while appointment of the assistant accountant was being made. 17. Mr. J.C. Sinha submitted that even assuming that there were no good reasons for superseding the petitioner at the time when promotion was being made to the post of assistant accountant as contained under Annexure 5, the petitioner cannot make a legitimate grievance against that promotion now, as he has not challenged that promotion. In the present case he has assailed the second promotion, of respondent no 5 as accountant in the Department of Education under Annexures 6 and 7 which according to learned counsel for the respondents, the petitioner's case was not considered as he was not assistant accountant, because the policy of the State Government was that the post of accountant was to be filled up from the cadre of assistant accountants and in case no assistant accountant was available, then only other persons, who have passed District Board Local Bodies Accounts Examination (Rural Area) either partly or wholly, were considered. Respondent no. 5 was at the relevant time assistant accountant in the office of the District Engineer, therefore, under the impugned ORDER :he was promoted to the post of accountant as against the petitioner, who was not holding the post of assistant accountant at that time. Mr. Sinha also submitted that it was the policy of the State to promote assistant accountant to the post of accountant and in that view of the matter this Court should not interfere with the policy decision of the State under writ jurisdiction. In my opinion, this contention of Mr. Sinha is not acceptable. In the counter affidavit, which has been filed on behalf of the State, that is, respondent no. 1, no where it is stated that it was a general policy of the State Government. In my opinion, this contention of Mr. Sinha is not acceptable. In the counter affidavit, which has been filed on behalf of the State, that is, respondent no. 1, no where it is stated that it was a general policy of the State Government. In paragraph 2 it was merely stated “....the petitioner's case was not considered because the post of Accountant, is ‘generally’ filled up from the cadre of Assistant Accountant......” The above expression generally clearly, indicates' that there are exceptions and no where it is stated that it was the policy of the State Government. That apart, I find that the petitioner himself, though he was not assistant accountant, was offered an appointment as accountant under Annexure 8. Therefore, on the facts and circumstances of the instant case it would, be difficult to hold that that was the consistent policy of the State Government. 18. On behalf of respondent no. 3 some further supplementary affidavit had been filed after arguments were concluded and JUDGMENT : was reserved on 23-8-76, wherein it is stated that there had been prevalent practice and policy in the Gaya District Board that any assistant accountant, who was holding the qualification of passing the local bodies account's examination got 1st preference In the appointment of accountant by promotion This policy and practice have always been followed. The said supplementary counter affidavit was filed on 27.8.76, obviously, after the JUDGMENT : was reserved. In my opinion, it would not be fair to entertain any supplementary affidavit of any of the parties, after the JUDGMENT : is reserved, unless the same was required in the ends of justice. In the particular case I have already referred to the counter affidavit of the State of Bihar (respondent no. 1) and no supplementary counter affidavit has been filed on behalf of the State modifying its statement made in its earlier counter affidavit. Therefore, nothing of any importance turns upon the said supplementary affidavits filed on behalf of respondent no. 8. In the particular case I have already referred to the counter affidavit of the State of Bihar (respondent no. 1) and no supplementary counter affidavit has been filed on behalf of the State modifying its statement made in its earlier counter affidavit. Therefore, nothing of any importance turns upon the said supplementary affidavits filed on behalf of respondent no. 8. In (7) the State of Bihar V. Asis Kumar Mukherjee (A.I.R. 1975 Supreme Court 192) at page 197 in paragraph 23 Krishna Iyer, J. observed that an obligation to consider every qualified candidate is implicit in the equal opportunity right enshrined in Articles 14 and 16 of the Constitution Screening a candidate out of consideration altogether is illegal if the applicant has eligibility under the regulations framed under Section 33 of the Medical Council Act, 1956. And for such a drastic step a refusal to evaluate comparatively, i.e., exclusion from the ring of a competitor manifest grounds must appear on the record. In the State of Jammu & Kashmir V. Triloki Nath (1974 S.C. 1) it was observed by Krishna Iyer, J. that "while striking a balance between the long hunger for equal chance of the lowlier and disturbing concern of the community for higher standards of performance, the State should not jettison the germinal principle of equality altogether. The dilemma of democracy is as to how to avoid validating the abolition of the difference between the good and the bad in the name of equality and putting to sleep the constitutional command for expanding the areas of equal treatment for the weaker ones with the dope of special qualifications' measured by expensive and exotic degrees. These are perhaps meta-judicial matters left to the other branches of Government, but the Court must hold the Executive within the leading strings of egalitarian constitutionalism and correct by judicial review, episodes of subtle and shady classification grossly violative of equal justice. That is the heart of the matter. That is the note that rings through the first three fundamental rights the people have given to themselves. In para 2 of the counter affidavit of State it is stated as mentioned earlier, that the petitioner was senior to respondent no. 5 in the cadre of upper division assistant and both the petitioner as well as respondent no. 5 had passed Local Bodies Accounts Examination in 1973. In para 2 of the counter affidavit of State it is stated as mentioned earlier, that the petitioner was senior to respondent no. 5 in the cadre of upper division assistant and both the petitioner as well as respondent no. 5 had passed Local Bodies Accounts Examination in 1973. Therefore, both the petitioner as well as respondent no. 5 had the requisite qualification to be considered for promotion for the post of accountant. There are some other reasons justifying the case of the petitioner that he should also have been considered, while making the said promotion as contained in Annexures 6 and 7, along with respondent no. 5. From the facts of the case it appears that originally the post of an accountant had fallen vacant in the office of the District Engineer under the District Board, Gaya, by the retirement of Udho Singh, to which post A. Ola, accountant in the office of the District Supdt. of Education, Gaya, was transferred, and, thus, in the vacancy caused by the transfer of A. Ola, respondent no. 5 was promoted, vide Annexure 6. As mentioned earlier, the petitioner opted to the Government service on 13.3.1974 when he was upper division assistant in the office of the District Superintendent of Education. It is true that it is not clear as to whether his option was given effect to by the State Government. While dealing with the preliminary point I have already discussed, by reference to his representation, a copy of which has been filed on behalf of the respondent, that he is still considered to be an employee in the District Board Office and he is in the Education Wing of the District Board, Gaya. 19. At this place it would be relevant to refer to the Bihar Ordinance No. 62 of 1976, known as the Bihar Non-Government Elementary Schools (Taking Over of Control) Ordinance, 1976, Section 1 (3) whereof states that it will come into force with effect from the 1st January, 1971. 19. At this place it would be relevant to refer to the Bihar Ordinance No. 62 of 1976, known as the Bihar Non-Government Elementary Schools (Taking Over of Control) Ordinance, 1976, Section 1 (3) whereof states that it will come into force with effect from the 1st January, 1971. Section 4 (3) of the said Ordinance reads thus: "The service of employees of local bodies working on deputation in the office of the District Superintendent of Education, Sub-divisional Education Officer-cum Municipal Education Officer and those working in the education section of Patna Municipal Corporation shall be deemed to have been transferred to and taken over by the Government and such employees shall in case of their opting to Government service, be deemed to have become Government servants with effect from the date of enforcement of this ordinance." Even if it is assumed that the petitioner remains in the Education Wing of the District Board, by the provision under clause (3) of Section 4 of the Ordinance, he shall be deemed to have been transferred to and taken over by the Government and such an employee shall, in case of his opting to the Government service, be deemed to have become Government servant with effect from the date of enforcement of the said Ordinance. Learned counsel for the petitioner has referred to paragraphs 13 and 14 of the main writ application wherein it was asserted by the petitioner that he had opted for Government service on 13.3.74 on the basis of Annexures 3 and 4. In paragraph 7 of the counter affidavit on behalf of respondent no. 1, it was stated that lithe contents of paragraphs 7 to 11, 13, 14 are admitted." Therefore, respondent no. 5 being in the office of the District Engineer, the petitioner had better claim than respondent no. 5. At any rate, petitioner's claim ought to have been considered. 20. Mr. 1, it was stated that lithe contents of paragraphs 7 to 11, 13, 14 are admitted." Therefore, respondent no. 5 being in the office of the District Engineer, the petitioner had better claim than respondent no. 5. At any rate, petitioner's claim ought to have been considered. 20. Mr. J.C. Sinha, however, referred to Section 9 of the Ordinance, which, inter alia, provides that it shall not affect or be deemed to affect "(i) any right, title, obligation or liability already acquired, accrued or incurred for anything done or suffered, in respect of the period immediately preceding this repeal; (ii) any legal proceeding or remedy whether initiated or availed of before or after this repeal, in respect of any such right, title, obligation or liability." Even if it is assumed that the Ordinance would not have affected respondent no. 5 in any way, in my opinion, on the facts and circumstances of the instant case, the petitioner's case deserves to be considered afresh, by the authorities. 21. In the result, the application is allowed and the ORDER :s of promotion of respondent no. 5, as contained in Annexures 6 and 7 to the writ petition, are quashed. I direct respondent nos. 1 to 4 to consider afresh the claim of petitioner along with respondent no. 5 for promotion as accountant. I wish to make it clear that I have indicated only the broad approach. It is within the power and responsibility of those respondents to take all relevant considerations and exclude extraneous matters in making final choice for filling up the post of accountant. In the circumstances, however there will be no ORDER :as to costs. P.S. SAHAY, J. I agree Application allowed.