Judgement

FAZAL ALI, J.:- This appeal by certificate is directed against the order of Patna High Court dated January 25, 1974 by which a writ petition filed by the appellants had been dismissed.

2. It appears that the appellants and respondents 5-8 were referred to the Bihar Agricultural Service, Class I. Certain promotions were made in higher category of Class I in which the cases of respondents 5-8 were referred to the Public Service Commission and pending opinion of the Public Service Commission, the respondents concerned were promoted on ad hoc basis. Unfortunately, it appears that the necessary records were not submitted to the Public Service Commission as a result of which the Commission was not able to give its recommendation up-to-date and respondents 5-8 continued to occupy the promotional posts up-till today on a pure ad hoc basis, In view of the lapse of time, the fifth person retired and he has therefore not been made a party to this appeal.

3. The admitted position seems to be that in the Bihar Agricultural Service, there were two classes and several categories of officers according to the nature of their qualifications, experience and other attributes. Initially, the officers were taken in the two classes. By memo issued by the Government by its letter dated August 13, 1953 which is to be found at page 856 of Compendium of Important Circulars and Orders of Agriculture Department (hereinafter to be referred as Compendium), it was clarified that in future officers should not be confirmed in the specified posts in the service in Class I or Class II of the Bihar Agricultural Service as the case may be. It was also pointed out that the post under separate categories would be interchangeable, excepting those which existed in the botanical section which could not be interchangeable with the posts in the research or general administration groups.

4. The main plank of the arguments of Mr. Divan in this case is that the State Government while promoting the respondents concerned, have not at all considered the cases of the appellants who were entitled to promotion on merit although in fact most of the appellants were senior to some of the respondents and, therefore, entitled to be considered for promotion. It is also the admitted case of the parties that while the service records of respondents 5-8 were sent to the Public Service Commission, those of the appellants were not sent at all by the Government to the Public Service Commission as a result of which the cases of the appellants could not be Considered even by the Commission.

5. In the counter-affidavit the stand taken by the State Government was that as the posts to which respondents 5-8 were promoted were of a special nature which required sufficient administrative experience, the question of the consideration of the cases of the appellants did not arise. It was, however, not alleged in the counter-affidavit that the appellants or any of them held purely botanical posts so as to be excluded from being considered to other posts.

6. The High Court came to a clear finding that the posts to which the respondents concerned were promoted were not selection posts and it therefore follows as a logical corollary that inter se merit of the candidates eligible for appointment had to be considered by the Government. This, however, was not done and the defence taken by the State before us as mentioned above was that the promotional posts were of a special, nature. Before the High Court, it appears, the stand taken was that the aforesaid posts were ex-cadre posts and the High Court seems to have proceeded on that basis. As discussed above, it is clear that the promotional posts were not ex-cadre posts, but were posts in the same class, i. e., Class I, and the appellants may not have been considered for promotion only if they had held posts in the botanical section which alone was not interchangeable. This aspect of the matter has been completely overlooked by the High Court or perhaps