IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2765 of 2007 DWARIKA SINGH, SON OF SRI BALESHWAR SINGH, RESIDENT OF VILLAGE BASAWAN, P.S. BASANTPUR, DISTRICT SIWAN. Versus 1. THE STATE OF BIHAR THROUGH THE COMMISSIONER CUM SECRETARY, WATER RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, IRRIGATION BHAWAN, PATNA. 2. JOINT SECRETARY, WATER RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, IRRIGATION BHAWAN, PATNA. For the petitioner : Mr. Dhirendra Nath Jha, Advocate. For the State : Mr. Sushil Kumar Singh, AC to GP-1. ---------------- 02. 08.09.2011 Heard learned counsel for the petitioner and the State. 2. Petitioner superannuated with effect from 28.02.1993 while serving as Executive Engineer in the Water Resources Department. He has filed this writ petition on 1.3.2007 challenging the order bearing Memo No.1132 dated 27.03.2002, Annexure- 6 passed by the Commissioner and Secretary of the Department, whereunder request of the petitioner for being exempted from passing the Departmental Accounts Examination has been rejected with reference to the instructions of the State Government contained in circular letter no.4674 dated 15.5.1992, Annexure-8. Earlier petitioner had challenged the 2 aforesaid order dated 27.03.2002, Annexure-6 by filing C.W.J.C. No.13349 of 2005, which was dismissed under order dated 31.01.2006 for non prosecution. For restoration of C.W.J.C. No.13349 of 2005 petitioner filed M.J.C. No.391 of 2006, which was also dismissed under order dated 23.02.2006 for non prosecution. Petitioner thereafter filed M.J.C. No.2199 of 2006 for restoration of M.J.C. No.391 of 2006, which was also dismissed under order dated 11.01.2007 for non prosecution. After dismissal of the aforesaid restoration petitions petitioner filed the present writ case again challenging the order dated 27.03.2002, Annexure-6. 3. It is submitted on behalf of the petitioner that earlier writ, restoration petitions were dismissed for non prosecution on account of laches of the lawyer who was entrusted to file the writ, restoration petitions. It is further submitted that for the laches of the lawyer petitioner may not be allowed to suffer as he is ready to deposit the amount fixed by this Court with the Patna High Court Legal Services Committee within one month from the date of receipt of the 3 certified copy of the present order dated 8.9.2011. 4. In view of the submission noted above petitioner is directed to deposit a sum of Rs.5,000/- in the account of Patna High Court Legal Services Committee and the amount be used for the purpose of granting legal aid to the poor and deserving litigants. 5. Counsel for the petitioner submits that under the impugned order dated 27.03.2006, Annexure-6 the prayer of the petitioner to exempt from appearing in the Departmental Accounts Examination was rejected on the ground that petitioner never appeared in the Departmental Accounts Examination, as such, he is not entitled for being exempted from appearing in the said examination, even after attaining the age of 50 years. In this connection, it is pointed out that the State Government, itself under circular letter bearing Memo No.2334 dated 3.2.1984, Annexure-7 had resolved to exempt Junior Engineers from appearing in the Departmental Accounts Examination who earned promotion as Assistant Engineer in the Bihar Engineering Service Class-II after attaining the age of 4 40 years. It is submitted that while considering the case of the petitioner for granting exemption from appearing in the Departmental Accounts Examination the Commissioner and Secretary of the department should have considered the case of the petitioner in the light of the instructions contained in Memo No.2334 dated 3.2.1984, Annexure-7, which does not appear to have been taken into account by the Commissioner and Secretary while passing the order dated 27.03.2002, which has been passed only with reference to the circular letter no.4674 dated 15.5.1992, Annexure-8. In this connection, it is further pointed out that the subsequent circular of the State Government dated 15.5.1992, Annexure-8 has not superseded the earlier circular letter bearing Memo No.2334 dated 3.2.1984, which inter alia provided that those members of the Bihar Subordinate Engineering Service who were promoted to the Bihar Engineering Service Class-2 after attaining the age of 40 years need not appear in the Departmental Accounts Examination for earning increments. From perusal of impugned order dated 5 27.03.2002, Annexure-6, it is quite evident that the same has been passed only with reference to the circular letter dated 15.5.1992 and has not taken into account the circular letter no.2334 dated 3.2.1984 by which the case of the petitioner is squarely covered. 6. In view of the fact that the impugned order dated 27.03.2002, Annexure-6 has not taken into account the relevant circular, the same suffers from the vice of arbitrariness and is, accordingly, quashed. The Commissioner and Secretary, Water Resources Department is directed to reconsider the request of the petitioner for grant of exemption from appearing in the Departmental Accounts Examination in the light of the circular of the State Government bearing Memo No.2334 dated 3.2.1984, Annexure-7 as also the earlier circular no.3965 dated 20.02.1969 referred to in the circular letter dated 3.2.1984 as early as possible, in any case within two months from the date of receipt/production of a copy of this order before the Commissioner and Secretary of the Department. Before reconsidering the matter in the light of this order the Commissioner and Secretary 6 must ensure that the amount of cost of Rs.5,000/- is deposited by the petitioner in the account of Patna High Court Legal Services Committee. 7. The writ application is, accordingly, disposed of. Rajesh/ ( V. N. Sinha, J.)