Judgment S.J.Mukhopadhaya, J. 1. The case relates to appointment of Secretariat Assistants in pursuance of Advertisement no. 1/93. Prayer has been made to fill up all the existing vacancies upto 31 st December, 1993, in pursuance of the said advertisement, as ordered by the Supreme Court in the case of State of Bihar V/s. Secretariat Assistant Successful Examinees Union 1986 & ors., (1994)1 S.C.C.126 : 1994 (1) PLJR (SC) 41. 2. To determine the question, it is necessary to take into consideration certain fact, as mentioned hereunder: An Advertisement no. 11/85 was issued for appointment to the post of Secretariat Assistants in the State Secretariat and its attached offices. The same was issued by the then Bihar State Subordinate Services Selection Board. The examination was held in 1987 but no appointment was made. The cadres of Secretariat Assistants of different departments were merged, in the meantime, with effect from 30.8.1988 in pursuance of Secretariat Assistant Joint Cadre Act, 1989 and first list of 357 successful candidates was published in July, 1990. A writ petition being C.W.J.C. no. 2912/91 was filed on behalf of Secretariat Assistant Successful Examinees Union 1986 and others to fill up all the vacancies existing upto the date of publication of result(July, 1990) out of Advertisement no.11/85. The writ petition aforesaid was allowed on 11.11.1991 with direction to fill up the vacancies upto July, 1990 out of Advertisement no.11/85 against which the State of Bihar moved in S.L.P. (Civil) no. 7423/92 before the Supreme Court. The said case was heard by the Supreme Court and by its judgment in the case of State of Bihar V/s. Secretariat Assistant Successful Examinees Union 1986 and others, (1994)1 S.C.C. 126 : 1994 (1) PLJR (SC) 41 modified the High Courts order and passed the following direction: "....We, accordingly, set aside that portion of the judgment but uphold the judgment in all other respects including the filling up of the vacancies which existed till December 31, 1988. Further, with a view to do justice between the parties and balance the equities, we issue the following directions: (i) That the appellant State of Bihar shall issue an advertisement inviting applications for the posts of Assistants within 4 weeks from the date of this judgement. Further, with a view to do justice between the parties and balance the equities, we issue the following directions: (i) That the appellant State of Bihar shall issue an advertisement inviting applications for the posts of Assistants within 4 weeks from the date of this judgement. (ii) That the advertisement shall indicate the total number of vacancies actually existing and likely to arise in the cadre till December 31,1993 which are required to be filled up. Thus, apart from the existing vacancies of 1989- 1992 the probable vacancies till December 31,1993, shall also be included while indicating the number of vacancies to be filled up. (iii) That the age bar shall be relaxed in favour of candidates of the 1987 examination who had secured 40% or above marks in that examination, to enable them to appear in the fresh examination, if they so choose. (iv) That the selection process including the holding of the examination and publication of the select list shall be completed within a period of 9 months from the date of the publication of the advertisement/notification inviting applications. (v) That after the publication of the select list, the appointments shall be made within 4 weeks from the date of the publication of the select list. (vi) That the rules relating to reservation etc. shall apply to the selections to be made. With the above modification and directions, the appeal is disposed of. There shall be no order as to costs." After the decision of the Supreme Court, the respondents issued Advertisement no.1/93 on 9.11.1993 and Bihar Public Service Commission(B.P.S.C. for short) held competitive test on 5/6.6.1994. The result of 483 successful candidates was published in June, 1995 and recommended for their appointment. It is pertinent to mention that in terms with rule/guideline, 50% of the posts of Secretariat Assistants are to be filled up by direct recruitment, from outsiders whereas rest 50% of the posts are to be filled up by appointment from amongst eligible Government employees. in terms with the decision of the Supreme Court aforesaid, probable vacancies upto 31st December, 1993 were to be filled up in pursuance of Advertisement no.1/93 i.e. 50% of the total vacancies which are to be filled up from outsiders. In the Advertisement no. 1/93, probable vacancies were notified to be 591 subject to final verification in view of some objection raised by 1986 successful candidates. In the Advertisement no. 1/93, probable vacancies were notified to be 591 subject to final verification in view of some objection raised by 1986 successful candidates. Though 591 vacancies were notified to be filled up out of Advertisement no. 1/93 but only 483 names of successful candidates were recommended for appointment and no recommendation having made in respect of 108 posts, advertised, the present writ petition was preferred in view of decision of the Supreme Court as referred above. In the meantime, Advertisement nos. 22/99, 23/99 and 24/99 published by B.P.S.C. inviting applications for appointment to the posts of Secretariat Assistants on 14.5.1999. The respondent B.P.S.C. has taken plea that the Personnel & Administrative Reforms Department of the State of Bihar vide letter no. 478 dated 26.7.1994 reduced the number of vacancies from 591 to 483. In consonance with the aforesaid revised requisition, the B.P.S.C. published the result and recommended the names of 483 candidates for appointment out of Advertisement no.1/93. 3. The Personnel & Administrative Reforms Department of the State of Bihar which is the cadre controlling authority filed their counter-affidavit and made the following statement: "That it is clear from Annexure-5 itself there were 239 more vacancies upto 31.12.88. These 239 vacancies included the 23 posts reserved against the provisional recommendation of 23 candidates for appointment to the post of Assistants by the B.P.S.C. from the panel of advertisement no.11/85. Thus it is obvious that vacancies upto 1993 i.e. 1183 included 239-23-216 vacancies falling prior to 31.12.88 becomes 1183-216-967. Out of these 967 fifty percent vacancies i.e. 483 were finally allotted to advertisement no.1/93 vide letter no. 478 dated 26.7.94 and against these vacancies appointment were made. That on the basis of Annexure-A the respondents have reduced the 591 vacancies to 483 on the basis of the judgment of the Honble Supreme Court as contained in Annexure-4. Respondent State have not violated the order and direction of the Honble Supreme Court, requisition for next advertisement is being sent to the B.P.S.C. very shortly for which the procedure is in final stage." 4. In the supplementary affidavit filed by the said Personnel & Administrative Reforms Department, the following statement is made: "That before controverting any allegation, it is submitted that the Joint Cadre of Assistants in the Secretariat & attached offices was formed with effect from 30.3.86. In the supplementary affidavit filed by the said Personnel & Administrative Reforms Department, the following statement is made: "That before controverting any allegation, it is submitted that the Joint Cadre of Assistants in the Secretariat & attached offices was formed with effect from 30.3.86. As per the information received from the concerned departments and attached offices of the Government, where these posts had been in existence prior to 30.8.88, the vacancies were calculated. As such the total sanctioned strength of Assistants comes at 4334. The total working strength as on 31.12.92 comes at 3445. Obviously, the vacant posts is 889 as on 31.12.92 which is the sub- straction of working strength from the sanctioned strength. For better appreciation the year wise break up of the vacancies from 1.1.1989 to 31.12.1992 given below simplifies all this: Year wise Vacancies (1989-93) Total (i) Year 1989 1990 1991 1992 = (1989+1992) (ii) Vacancies -473 7 219 190 = 889 Strength of Assistants cadre as on 31.12.92 (i) Total sanctioned strength 4334 (ii) Working strength as on 31.12.1992 3445 (iii) Vacant posts (1-2) 0889 That the contrary assertions and claims made in the rejoinder appear to be simply unfounded since they have no bearing on the records which go to show that the total vacancies were 889 and not more. It is also submitted that Annexure-9 enclosed with the rejoinder was subsequently verified & found to be incorrect and as such it was rectified and then an affidavit based on correct facts was filed in S.L.P. 7423/92 in the Honble Supreme Court. In fact cut off date for the joint cadre of Assistants is 30.8.88. The aforesaid information and figures, after being obtained from the different departments and offices, where these posts existed from before, were also furnished before the Honble Supreme Court on 28.7.94 in the matter of I.A. nos. 5 of 1994 & 6 of 1994 in Civil Appeal no.5298 of 1993 State of Bihar & Ors vs Secretariat Assistants Successful Examination Union 1986 & Ors." Counsel for the State submitted that 491 vacancies were shown in the Advertisement no. 1/93 was subject to further verification of vacancy in view of representations preferred by 1986 successful examinees. Subsequently, when if came to the notice of the State that 108 vacancies were prior to 31.12.1988, they were excluded from 591 advertised posts for being filled up out of earlier Advertisement no.11/85. 1/93 was subject to further verification of vacancy in view of representations preferred by 1986 successful examinees. Subsequently, when if came to the notice of the State that 108 vacancies were prior to 31.12.1988, they were excluded from 591 advertised posts for being filled up out of earlier Advertisement no.11/85. On such exclusion, the actual vacancy having found to be 483, amended requisition made, names recommended and appointment made. 5. The petitioners disputed the aforesaid fact and enclosed number of documents to show that more vacancies are existing which fell vacant by 31.12.1993, and are to be filled up out of Advertisement no.1/93 in pursuance of the Supreme Court direction. 6. Initially as it appeared to be a disputed question of fact, this Court was reluctant to interfere with the matter to determine the question of vacancy. However, by placing one or other documents, including the gradation list etc., the counsel for the petitioners and the intervenors raised serious doubt relating to averment made by the respondents and prima facie made out a case for interference. For the said reason, the case was heard in detail. For example, the Personnel & Administrative Reforms Department of the State has shown the total sanctioned strength of the Assistant cadre, including selection grade posts as 4334. On the other hand, in terms with Finance Departments resolution no.6012F(2) dated 18.12.1989 when conversion of posts to selection grade/super time grade were made vide Personnel & Administrative Reforms Departments letter no.9 dated 10.1.92 (Annexure-9), the total strength of the cadre of Secretariat Assistant was shown to be 6423, which is more than 2000 posts than shown in the affidavit. Therein the bifurcation has been shown as follows: (i) Assistants 3250 (ii) Junior Selection Grade Assistants (20% of the cadre posts) 1285 (iii) Senior Selection Grade Assistants (12%) of the cadre posts) 803 (iv) Section Officer 857 (v) Super Time Senior Selection Grade/ Registrar and equivalent posts (2 1/2%) 228 Total 6423 If the posts of Section Officer and Super Time Scale of Registrar and equivalent posts (857 + 228 = 1085) is sub- stracted, the strength comes to 6423-1085 = 5338 i.e. more than 1000 posts than the strength shown in the affidavit (4334). 7 The petitioners produced one or other gradation list before this Court to show that the cadre strength of 4334 shown by the respondents is wrong and lesser than the total cadre strength. The provisional gradation list of Secretariat Assistants (basic grade) was published on 1.9.1990 showing appointment upto 30.8.1988 and total names of 4005 candidates was shown. The other provisional gradation list of selection grade Secretariat Assistants published on 7.9.1990 includes names of 660 persons, thereby existing members of the cadre were shown to be 4665, as on 30.8.1988 which is more than the cadre strength shown by the respondents in their counter-affidavit (4334). The final gradation list of Secretariat Assistants (basic grade) was published on 3.8.1992 showing the names of 3294 members of the cadre. 8. At this stage, it is pertinent to mention that there are certain offices known as attached offices to the Secretariat. In the rule of Secretariat Assistant framed in 1993, a list of attached offices has been shown but the office of Divisional Commissioners has not been shown to be an office attached to the Secretariat. The counsel for the petitioners relied on the gradation list published on 1.9.1990 as also final gradation list dated 3.8.1992 to show that the offices of Divisional Commissioners are also attached office and Assistants posted in those offices have been included in the gradation list. The office of State Election Commission (Panchayati Raj) is also attached office to the Secretariat for which reliance was placed on letter no.5802 dated 18.10.1993 issued from Rural Development Department (Directorate of Panchayati Raj) to show that the posts of Assistant, Section Officer have been sanctioned for the said office. However, the counsel for the respondents State was not in a position to reply as to whether the posts of Assistant available in the offices of different Divisional Commissioners and the State Election Commission have been taken into consideration to determine the vacancy or not. The counsel for the petitioners/intervenors produced a chart prepared by the petitioners/intervenors giving break up of vacancies for the year 1989-93 which are to be filled up in pursuance of Advertisement no.1/93. It was calculated in two methods to show more vacancies existing upto 31.12.1993, as extracted hereunder: 1st Method Sanctioned strength - 5338 1. The counsel for the petitioners/intervenors produced a chart prepared by the petitioners/intervenors giving break up of vacancies for the year 1989-93 which are to be filled up in pursuance of Advertisement no.1/93. It was calculated in two methods to show more vacancies existing upto 31.12.1993, as extracted hereunder: 1st Method Sanctioned strength - 5338 1. No. of vacancy in the year 1989 33 (a) No. of promotions(from Junior Selection Grade list dated 7.9.90) to Section Officer, gradation list dated 29.1.96 23 (b) No. of Retirement (from Junior selection grade list dated 7.9.1990). 23 (c) No. of vacancy occurred due to retirement and other reasons from Provisional gradation list dated 1.9.90 cannot be ascertained as date of birth is not given. 15 2. No of vacancy in the year 1990 (a) No of promotions (from Junior Selection Grade list dated 7.9.90) to Section Officer gradation list dated 29.1.96 Nil (b) No. of retirements (from Junior Selection grade list dated 7.9.90). 15 (c) No. of vacancy occurred due to retirement and othsr reasons provisional gradation list dated 1.9.90 cannot be ascertained as date of birth is not given. 251 3. No of vacancy in the year 1991. (a) No. of promotions (from junior selection grade list dated 7.9.90) to Section Officer gradation list dated 29.1.96. 218 (b) No. of retirements (from junior selection grade list dated 7.9.1990). 25 (c) No. of vacancy occurred due to retirement and other reasons from provisional gradation list dated 1.9.90 cannot be ascertained as date of birth is not given. (d) No. of retirement (from final gradation list dated 3.8.92) 8 4. No. of vacancy in the year 1992 1484 + 73 = 1557 (a) No. of promotions (from junior selection grade list grade list 7.9.90) to Section Officer gradation list dated 29.1.1996. 90 (b) No. of retirement (from junior selection grade list dated 7,9.90) 34 (c) No. of vacancies due to attachment of Divisional Commissioners Offices and Advocate Generals Office to the Secretariat vide Resolution No.46 dated 27.2.91 of the Personnel Department. 73 (d) No. of vacancy occurred due to retirement and other reasons from Provisional gradation list dated 1.9.1990. 1259 (i) Total No. of working Assistants as per provisional gradation list dated 1.9.90 4007 (ii) Total No. of working Assistants as per final gradation list dated 3.8.92. 3294 (iii) Total no. 73 (d) No. of vacancy occurred due to retirement and other reasons from Provisional gradation list dated 1.9.1990. 1259 (i) Total No. of working Assistants as per provisional gradation list dated 1.9.90 4007 (ii) Total No. of working Assistants as per final gradation list dated 3.8.92. 3294 (iii) Total no. of appointments made through Advertisement no.11/85 and 13/87 as per final gradation list dated 13.8.92 546 (iv) Total No. of working Assistants who were working on 1.9.90 as per provisional gradation list and remained as working assistants in the final gradation list (3,294-546) 2748 (e) No. of vacancy due to retirement from final gradation list dated 3.8.92 19 (f) No. of vacancy due to joining of candidates to other Gazetted posts (Deputy Collector) (from final gradation list dated 3.8.1992) 82 5. No. of vacancy in the year 1993 (298 + 10) 308 (a) No. of promotions (from junior selection gradation list dated 7.9.90 to Section Officer, Gradation list dated 29.1.1996) 214 (b) No. of retirement (from junior selection gradation list dated 7.9.90) 46 (c) No. of retirement (from final gradation list dated 3.8.1992) 38 (d) No. of vacancies created in State Election Commission (Panchayati Raj Directorate) on 28.10.93 10 2nd Method 1. Total No. of vacancy existed on 31.12.88 672 (a) Sanctioned strength of Assistants on 30.8.83 and 31.12.88 5338 (b) Working strength of Assistants on 30.8.88 from provisional gradation list dated 1.9.90 and junior selection grade Assistant list dated 7.9.90(4007 + 660) 4667 (c) Total No. of vacancy as on 30.8.88(a-b) 671 (d) Total No. of vacancy occurred due to retirement from 30.8.88 to 31.12.88 as per the junior selection grade Assistant list dated 7.9.90. 1 2. Total no. of vacancy existed on 31.12.88 and remained available on 31.12.93 per Advertisement no. 11/85 and 13/87 (limited). 126 (a) Total no. of vacancy existed on 31.12.86 672 (b) Total no. of persons joined through Advertisement no. 11/85 and 13/87 gradation list of basic grade assistants dated 3.8.1992 546 3. Total No. of vacancy occurred from 1989 to 1993 2164 (a) Total sanctioned strength as on 30.8.88/31.12.88/1.3.89. 5338 (b) Total working strength on 31.12.93 as against 5338 sanctioned strength. 3131 (c) Total no. of increase in sanctioned strength due to addition of Divisional Commissioners offices and Advocate Generals office etc. to the Secretariat vide Resolution No. 46 dated 27.2.91 of the Personnel Department. 268 (d) Total no. 5338 (b) Total working strength on 31.12.93 as against 5338 sanctioned strength. 3131 (c) Total no. of increase in sanctioned strength due to addition of Divisional Commissioners offices and Advocate Generals office etc. to the Secretariat vide Resolution No. 46 dated 27.2.91 of the Personnel Department. 268 (d) Total no. of vacancy created and existed on 31.12.92 in Divisional Commissioner Offices and A.G. Office. 73 (e) Total no. of vacancy created in Rajya Nirvachan Aayog (Panchayati Raj Directorate) on 28.10.1993. 10 (f) Total no. of vacancy existed on 31.12.93 (2207 + 73 + 10) 2290 (g) Total no. of vacancy existed on 31.12.88 and remained unfilled till 31.12.1993. 126 (h) Total no. of more vacancy given to Advertisement no. 11/85 and 13/87 (239-126) 113 9 In the facts and circumstances, I am inclined to remit the matter to the respondents for re-calculation of total number of vacancies, as existing on 31.12.1993, including the posts, if any, still lying vacant. Accordingly, the case is remitted to the Secretary, Personnel & Administrative Reforms Department, who will get the matter enquired through any officer of the rank of Under Secretary or above to determine the vacancies from each and every Secretariat and its attached offices. While doing so, they will take into consideration, the fact that the Assistants of the office of Divisional Commissioners have been included in the gradation list and such posts have been created for State Election Commissioners office, as referred above. The petitioner no.1 Sati Ranjan Jamaiyar or petitioner no.2, Amrendra Kumar on behalf of petitioners/intervenors may bring to the notice of Secretary, Personnel & Administrative Reforms Department that further posts of Assistants are lying vacant, which fall vacant by 31st December, 1993. They may also point out the order number/date by which the offices of Divisional Commissioners were made attached offices to the Secretariat. On assumption of such vacancies upto 31st December, 1993, including the vacancies still existing because of non- joining of persons recommended for appointment in pursuance of Advertisement no. 1/93 will communicate the same to the B.P.S.C. within a period of four months from the date of receipt/production of a copy of this judgment. It is needless to say that the vacancies for the period from 1.1.1989 to 31.12.1993 to be calculated, including those which have already been filled up out of 483 recommendation. 1/93 will communicate the same to the B.P.S.C. within a period of four months from the date of receipt/production of a copy of this judgment. It is needless to say that the vacancies for the period from 1.1.1989 to 31.12.1993 to be calculated, including those which have already been filled up out of 483 recommendation. The authorities will also show that vacancies, if any, still existing, which fail vacant prior to 1.1.1989. I may mention that the vacancies prior to 1.1.1989 were to be filled up out of Advertisement no. 11/85 in pursuance of the decision of the Supreme Court reported in (1994)1 S.C.C. 126 : 1994(1) PLJR (SC)41. However, as subsequently the Supreme Court directed not to make further appointment out of said Advertisement no. 11/85 on application for review filed by one or other party, if any such vacancy is now traced out, the same be also filled up in pursuance of Advertisement in question (no. 1/93). On such enquiry if further vacancy is traced out, including non-joining vacancies, on its communication to B.P.S.C. (which is to be made within four months), the B.P.S.C. will recommend the names of rest of the successful candidates on the basis of merit list/panel prepared in pursuance of Advertisement no. 1/93, within one month thereof. In such case, the appointing authority will issue appropriate orders of appointment in favour of recommended candidates within two weeks from the date of receipt of such recommendation. In view of the fact that the subsequent advertisements have been issued in 1999 to fill up subsequent vacancies occurred from 1,1.1994 onwards, the total exercise to be completed and appointment, if any, in pursuance of Advertisement no. 1/93 to be closed, within a period of six months from the date of receipt/production of a copy of this judgment. 10. The writ petition stands disposed of, with the aforesaid observations/directions. However, in the facts and circumstances of the case, there will be no order, as to costs.