The court held that petitioners should be notionally appointed from 15th January 2003 for Old Pension Scheme benefits due to administrative delays in their appointment.

JUDGMENT :

(Bibek Chaudhuri, J.)

1. By an advertisement, dated 26th of January, 1998, the Bihar Public Service Commission (BPSC), conducted 1st Regional Competitive Examination, 1998 for the post of Class-III employee in the District Level Regional Offices in the pay-scale of Rs. 1200-1800/-. The Petitioners applied for their recruitment in Class-III posts and on being selected through written test, followed by oral interview, they were recommended for appointment to Class-III posts vide Memo No. 1037, dated 15th of January, 2003. Though some of the recommendees joined various departments, the Petitioners were not appointed in any of the Government Department. Being aggrieved, the Petitioners filed a writ petition, which was registered as C.W.J.C. No. 1281 of 2004. The said writ petition was disposed of vide order, dated 16th of March, 2005, directing the District Magistrate-cum-Collector, Begusarai to consider the cases of the Petitioners for their appointment against general category vacancy forthwith and not later than a period of six weeks from the date of receipt/production of a copy of the order. In spite of the said order, having been passed, the Respondents failed and neglected to appoint the Petitioners in Class-III posts which compelled them to file a contempt petition against the Respondents. During the pendency of the content petition, appointment letters were issued to the Petitioners in the year 2006. In the meantime, New Pension Scheme came into operation in the State of Bihar from 1st September, 2005.

2. It is contended on behalf of the Petitioners that had they been appointed on the basis of recommendation made by the BPSC with other selected candidates in the year 2003-2004, there would have been no occasion to put the Petitioners in New Pension Scheme. Under such circumstances, the Petitioners have prayed for issuance of writ in the nature of mandamus, commanding the Respondent Authorities to consider their appointment / joining notionally w.e.f. 15th of January, 2003, the date on which BPSC had recommended the names of the Petitioners as successful candidates for appointment to the posts of Class-III Non-Technical Employee (Revenue Karamchari) and thereafter to put the services of the Petitioners under Old Pension Scheme in place of Contributory Pension Scheme which has come into effect from 1st of September, 2005.

3. It is submitted by the learned Advocate for the Petitioners that as a result of negligence and laches on the part of the Respondents, the Petitioners’ valuable right of acquiring seniority as well as being considered under Old Pension Scheme are going to be frustrated. If the Petitioners were appointed even after the judgement passed in C.W.J.C. No. 1281 of 2004, then also, their seniority would have been protected and they were treated to be governed under the Old Pension Scheme.

4. In this regard the learned Advocate for the Petitioners refers to a decision of the Hon'ble Supreme Court in the case of City & Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala & Ors., reported in (2009) 1 SCC 168.

5. Referring to paragraph no. 22 of the said report, it is submitted by the learned Advocate appearing on behalf of the Petitioners that the High Court while exercising its jurisdiction under Article 226 of the Constitution of India is duty bound to take all the relevant factors into consideration and decide for itself even in the absence of proper affidavits from the State and its instrumentalities as to whether any case at all is made out requiring its interference on the basis of the material made available on record. There is nothing like issuing an ex-parte writ of Mandamus, order or direction in a public law remedy. Further, while considering validity of impugned action or inaction the Court will not consider itself restricted to the pleadings of the State but would be free to satisfy itself whether any case as such is made out by a person invoking its extra ordinary jurisdiction under