Judgment 1. Heard learned counsel for the petitioners and learned counsel for the respondents. 2. The petitioners are aggrieved by the order dated 8.5.2007 issued by the respondents. It relegates them to the basic pay of the scale on which they were appointed even while extending their services from 1.3.2007 till 31.1.2008. 3. An advertisement was issued by the respondents on 14.1.2001 inviting applications for appointment on vacant posts inter alia of "Anusevak", "Aadesh Vahak", Farash, Mehtar, security persons and drivers. The advertisement set out the scale of pay, conditions of eligibility, reservation and that selection was to be based on competitive merit to be assessed at an interview. The petitioners applied for the same. After the selection process was over a merit list was prepared. Individual appointment letters were then issued to them making appointment in the pay scale of Rs. 2550-55-2660-60-3200.00 alongwith admissible allowances. The appointment letters dated 7.10.2003 stated that the appointment was being made on a temporary post valid till 29.2.2004. By separate orders their services were extended annually till the issuance of the impugned order relegating them to the basic pay of the scale. 4. Learned counsel for the petitioners urged that the appointments were, in fact, of a permanent nature against permanent sanctioned vacancies. The advertisement did not stipulate that it was a contractual appointment for specified term. All procedures for a regular appointment were followed. That P.F./G.P.F. accounts of the petitioners were also opened, deductions made, they were given increments and their service books were also opened apart from grant of casual leave. The petitioners shall be deemed to have been permanently appointed on a regular pay scale. Insofar as the appointments, if any, beyond the sanctioned vacancy is concerned, the instruction of the Personnel and Administrative Department of the State of Bihar that such posts, where persons have worked for more than three years on a temporary post was itself indicative of the need for the posts and the consequent directive to make them permanent had been adopted regularly by the Assembly Secretariat also in the past vide annexure-15 series. That this aspect of the matter had engaged the attention of the respondents also, presently as evident from their counter affidavit. The order impugned has been issued without proper consideration of that aspect of the matter. That this aspect of the matter had engaged the attention of the respondents also, presently as evident from their counter affidavit. The order impugned has been issued without proper consideration of that aspect of the matter. Reliance was placed on the chart of sanctioned posts and existing vacancies at Annexure-17 to submit that the petitioners were in fact working on posts under the strength of sanctioned vacancies. 5. Counsel for the respondents urged that the vacancy position as of December, 2007 sought to be demonstrated by the petitioners from Annexure-17 of their supplementary affidavit on the posts in question was not on the premise of any authenticated document. That no appointment beyond the sanctioned vacancies could be made without creation of posts. The petitioners came to be appointed by virtue of R. 3(1)(Kh), second proviso. The advertisement never mentioned that it was for a permanent vacancy and therefore the appointments were temporary. No rights, therefore, flowed to the petitioners to claim permanency of appointment. That the petitioners have accepted the temporary nature of their appointment over the past years and therefore on principles of waiver are precluded from claiming the status of permanency now. That by a misinterpretation of the Rules and by inadvertence the petitioners were given the status of pay scale G.P.F. account, increments, casual leave and opening of service book and no sooner the error was discovered and the mistake realized, the impugned order has been issued. 6. Rule-3 of the Bihar Legislative Assembly Secretariat (Appointment and Service Conditions) Rules-1964 and the Bihar Legislative Assembly Secretariat (Recruitment and Conditions of Service) Rules-1964 presently falls for consideration and therefore is set out below in its entirety: 7. Schedule-1 of Rule-3(1)(K) provides for the number of sanctioned permanent vacancies of each post. Schedule-2 provides for temporary posts to be sanctioned by the Chairman. No temporary post in Grade-1 can be created by the Chairman without consultation of the Finance Department. The Second proviso states that the Chairman may create temporary posts in Grade-2, 3 and 4 for a financial year in which the orders are issued and that too when the expenses for the same can be met out by the budget of the Assembly for that year. Sub clause-(2) empowers the Chairman with consultation of the Finance Department to add or decrease the permanent sanctioned posts in Schedule-1. 8. Rule-3(1)(K) provides for regular appointment against sanctioned vacancies. Sub clause-(2) empowers the Chairman with consultation of the Finance Department to add or decrease the permanent sanctioned posts in Schedule-1. 8. Rule-3(1)(K) provides for regular appointment against sanctioned vacancies. This is the normal rule for appointment. The exception is provided in R. 3(1)(Kh) read with proviso. The latter was therefore an aberration to the normal Rule of appointment under the former. Appointment under the latter could be only in the exigency of the situation, which naturally means small in numbers and limited. The respondents cannot be permitted to turn the exception/aberration into the Rule and make several such appointments thereunder and continue such appointments regularly from year to year which itself was indicative of the aberration. 9. The advertisement dated 14.1.2001 is silent on the nature of the appointment whether it be permanent or temporary. On the given facts of a case where sanctioned vacancies are available and the nomenclature of the appointment is not described it shall be deemed to be permanent. It is not in dispute on facts that all procedures for a regular appointment have been presently followed by issuance of advertisement and after a comparative assessment on merits complying with reservation requirements a select list has been drawn up in accordance with law. The advertisement only states that the pay scale was temporary. This Court therefore does not accept the submission of the respondents that the appointments were temporary in so far as the sanctioned vacancies are concerned. 10. In State of U.P. & Anr. V/s. Sari M.I. Siddiqui, AIR 1980 SC 1098 it has been held in the relevant extract of paragraph-10 as follows: ". . . .In order, therefore, to maintain the nature of appointment, we have to look to the heart and substance of the matter, the surrounding circumstances, the mode, the manner and the terms of appointment and other relevant factors.In the instant case we cannot ignore advertisement which forms the pivotal basis of the direct recruitment in pursuance of which the appointments were appointed..." 11. The next submission of the respondents that the petitioners accepted their appointment of a limited tenure notwith standing the advertisement also does not impress this Court. The petitioners had little option to do otherwise. The only option available to them was to refuse the appointment altogether which they were hardly in a position to do. 12. In Central Inland Water Transport Corporation & Anr. The petitioners had little option to do otherwise. The only option available to them was to refuse the appointment altogether which they were hardly in a position to do. 12. In Central Inland Water Transport Corporation & Anr. V/s. Brojo Nath Ganguly, AIR 1986 SC 1571 one of the questions for consideration was like any other contract between the parties and that a term of the same could not be struck down under Art. 14 of the Constitution on the grounds of being arbitrary, unreasonable, inconsolable or onesided or unfair. The appointment letters provided for termination of service without previous notice if the Corporation was satisfied of unfitness which was likely to continue affecting discharge of duties. Dismissal likewise could also be done for insubordination, intemperance or misconduct of any service rules or non-performance of duties. The appointment letters were in stereo typed form. They were terminated under the said clause. The Court held that undoubtedly the contesting respondents accepted the appointment with the Corporation upon those terms. They had, however, no real choice before them. Had they not accepted the appointments they would have at the highest received some compensation which would have been probably meager and would certainly have exposed themselves to the hazard of finding another job. The choice was between accepting what was offered or facing termination by consequent harassment and the uncertainty of alternative employment. The Clause was held to be harmful and injurious to public interest creating insecurity in the minds of those to whom it applied and against public good. 13. The petitioners have filed a supplementary affidavit enclosing at Annexure-17 a chart of vacancy position of the posts in question as available in December, 2007. The argument of the respondents that it could not be relied upon as it was not an authenticated document does not appeal to this Court. The respondents are a responsible authority. Their primary duty was to assist the Court to adjudicate the matter properly by placing proper materials before the Court. The order sheet of the proceedings show that the matter has been taken up on at least three occasions. If the respondents have chosen to deliberately withhold information from this Court so as to create a cloud of confusion and gain advantage thereby, this Court refuses to give them such advantage. The order sheet of the proceedings show that the matter has been taken up on at least three occasions. If the respondents have chosen to deliberately withhold information from this Court so as to create a cloud of confusion and gain advantage thereby, this Court refuses to give them such advantage. In absence of any reply by the respondents, applying the principles of non traverse and drawing an adverse inference this Court accepts the vacancy statement furnished by the petitioners. 14. The sanctioned posts as per Annexure-17 as of December, 2007 under Rule-3(1)(K) are as follows: "Anusevak" 120, "Aadesh Bahak"59, "Farash" 27, "Mehtar"18 and "Driver"16. 15. In view of the finding as above that annexure-1, the advertisement, shall be deemed to be for permanent vacancies the matter shall have to be examined appropriately to the extent that vacant sanctioned posts are available. This Court considers it proper to direct the respondents to grant the status of permanency in the appropriate pay scale from the merit list in order of seniority on the posts in question to the extent that the sanctioned vacancies are available. Such persons whether before this Court or not shall be deemed to be in permanent service from the date of their initial appointment with all consequential benefits. Insofar as the appointments beyond sanctioned vacancy and made under Schedule-2 are concerned, this Court finds substance in the submission of the petitioners that following the instructions of the Personnel and Administrative Reforms Department dated 13.6.1974 at annexure-14 to make permanent all such posts where persons have been working on temporary posts for three years or more, the respondents have adopted the same in the past and followed like principles themselves vide Annexure-15 series. 16. This Court, therefore, presently finds no justification for the action of the respondents in not following similar practice now in the background of the claim of the petitioners that they have been appointed against sanctioned posts. This is fortified by the reasons discussed hereinafter. 17. In normal circumstances, the law stands settled that file notings will not create a right so as to demand a mandamus, when the petitioner produces the same. This is fortified by the reasons discussed hereinafter. 17. In normal circumstances, the law stands settled that file notings will not create a right so as to demand a mandamus, when the petitioner produces the same. But, when the respondents in their counter affidavit urge that they made a mistake in appointing the petitioners at a pay scale and then seek to rely on their own file notings which they voluntarily place before this Court in justification of their actions, the matter becomes fundamentally different. Whether a positive mandamus can be issued of the same or not is an entirely different matter which does not fall for consideration here. What falls for consideration is, if a mandamus could be issued limited to the materials contained in the file notings now communicated to the petitioners in the present proceedings to take an appropriate decision thereupon. 18. The file notings conclude the discussion at page-56 that the matter may proceed as the Chairman may desire. Either the persons like the petitioners may be appointed for fixed tenures on the temporary posts with the condition that the past services will not give them a claim for regularization or absorption and that they were to be given the basic of the scale with no other benefits. Alternatively, because these posts were being created from year to year and there was need of such personnel, the posts could be added to Schedule-1 of R. 3 and regular appointments be made in accordance with law in which the petitioners alongwith others could also apply. 19. In view of the discussion aforesaid that the advertisement did not stipulate that the appointments were temporary and that full procedures for a regular appointment were followed coupled with the submission that the appointments were against sanctioned vacancies, this Court directs the respondents to take a decision in light of their own practice in the past noticed from annexure-15 series and the present recommendation with regard to creation of posts in Schedule-1 within a period of six months from the date of receipt/production of a copy of this order. 20. Till such exercise is not completed by the respondents they shall not interfere with the services of the concerned petitioners, as determined under the advertisement. 21. In the result, the writ applications are allowed.