IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1213 of 2009 JAILAGAN SINGH , SON OF LATE RAM SWAROOP SINGH, PERMANENT RESIDENT OF VILLAGE MOKHTARPUR, P.O. AND P.S. MAHNAR, DISTRICT- VAISHALI, PRESENTLY RESIDING AT THE HOUSE OF SRI YADAVENDRA PD. SINGH, ADVOCATE, MOHALLA & P.O. KASHIPUR, P.S. SAMASTIPUR TOWN, DISTT. SAMASTIPUR……….APPELLANT/PETITIONER Versus 1. THE STATE OF BIHAR 2. THE SECRETARY-CUM- COMMISSIONER, WATER RESOURCES DEPARTMENT,GOVT. OF BIHAR,PATNA 3. THE ENGINEER-IN-CHIEF, WATER RESOURCE DEPARTMENT,GOVT. OF BIHAR, PATNA. 4. THE CHIEF ENGINEER, WATER RESOURCES(IRRIGATION) DEPARTMENT, SAMASTIPUR. 5. THE SUPERINTENDING ENGINEER, FLOOD CONTROL CIRCLE, SAMASTIPUR 6. THE EXECUTIVE ENGINEER, FLOOD CONTROL DIVISION, SAMASTIPUR 7. THE EXECUTIVE ENGINEER, FLOOD CONTROL DIVISION,DALSINGSARAI,DISTT- SAMASTIPUR……………………………….RESPONDENTS ----------- FOR THE PETITIONER- MR. ABHAY SHANKAR SINGH, ADVOCATE & MR. AMIT KR.MISHRA,ADVOCATE FOR THE STATE ;- MR. DHURENDRA KR. ADVOCATE ----------- 5 7-4-2010 Heard learned counsel for the appellant and learned counsel for the State. 2. This appeal is directed against order of the learned single Judge dated 24-7-2009 whereby the writ petition preferred by the appellant bearing C.W.J.C.No. 3517 of 2003 has been dismissed. 3. It has been submitted on behalf of the 2 appellant that the writ court mis-understood the grievance of the appellant and wrongly observed that appellant/petitioner was seeking promotion from the date persons junior to him were given such promotion. According to learned counsel for the appellant, the relevant facts are not in dispute because when the petitioner was wrongly retrenched from service in the work charge establishment under the department of Irrigation ( now Water Resources Department), he raised an Industrial Dispute which was referred to the Industrial Tribunal and after contest the appellant succeeded. The Tribunal held the retrenchment or removal of the petitioner to be illegal and directed for his reinstatement along with full back wages and other benefits to which he would have been entitled for the period he was kept out of service. 4. It appears that appellant was reinstated in service some time in the year 1985 and was also given 3 back wages but the appellant was not satisfied because he wanted regularization or entry into the regular establishment with effect from 1959 when allegedly two persons junior to him as “ Work Sarkar” in the work charge establishment namely Bhola Prasad Rai and Yamuna Prasad were given benefit of such regularization or entry into regular establishment. He preferred C.W.J.C. No. 5266 of 1987 which was disposed of with directions on 10th January, 1997. A copy of that judgment has been annexed as annexure-4 to the memorandum of appeal. One of the directions in that judgment is as follows :- “ The respondents will consider the case of the petitioner for regularization/ for taking him in the regular establishment, if necessary notionally, with effect from the date person similar situate, and or juniors of the petitioner appointed after 1955 were so taken in the regular establishment of the State Government.” 4 5. In spite of such direction the appellant was given regularization or entry into regular establishment with effect from 22-10-1984 which date was shifted back to 1-4-1971 pursuant to filing of a contempt application. Since the petitioner wanted the date of entry into regular establishment to be a particular date in the year 1959 since when his alleged juniors Bhola Prasad Rai and Yamuna Prasad were allowed entry, he preferred the writ petition in question although he had superannuated from service on 30-9-1994. As noted earlier the said writ petition has been dismissed by the order under appeal. A perusal of that order shows that the writ court fell into error in believing that the appellant was claiming promotion to a higher post which had not been allowed to him earlier and that claim was being raised when he had superannuated. On a careful perusal of the facts which have been indicated in brief in the earlier part of this order, we find that the relief in 5 question was already allowed to the petitioner to a large extent by the direction given in the judgment and order dated 10-1-1997 contained in annexure-4 but he was not satisfied with the notional date of entry into regular service because admittedly, Bhola Prasad Rai and Yamuna Prasad were allowed entry into the regular establishment in the year 1959. 6. A counter-affidavit has been filed on behalf of the respondents in which a stand has been taken in paragraph-13 that the claim of the appellant was not identical to the case of Bhola Prasad Rai and Yamuna Prasad.which will be very clear from perusal of letter no. 2113 dated 26-9-97 by which the said two persons were appointed in regular Establishment. Since the letter dated 26-9-97 was not annexed with the counter-affidavit, by order dated 5-4-2010 the counsel for the State was directed to produce a copy of that order, which has been made available to us today. Perusal of that letter shows that those two persons 6 were taken into regular establishment from work charge establishment with effect from 12-8-1959 and 1-12-1959 by different orders and the letter dated 26- 9-1997 merely recorded the relevant facts. There is no averment that those persons were not juniors to the appellant and clearly they were allowed entry into regular establishment after the appellant was retrenched in the year 1959. According to learned counsel for the appellant, it was the case of the appellant that his retrenchment was mala fide so that those two juniors could be taken into regular establishment against limited number of post then available. 7. Considering that material facts are not in dispute and not challenged and considering the earlier order passed by the writ court ( annexure-4), we have no hesitation in accepting the claim of the appellant that he should have been notionally given benefit of entry into regular establishment with effect 7 from the date his aforesaid two juniors were allowed entry into regular establishment ie, from 12.8.1959. Hence, the order under appeal is set aside and this appeal is allowed. The writ petition will accordingly stand allowed to the aforesaid extent. There shall be no order as to costs. ( Shiva Kirti Singh,J) ( C. M. Prasad, J ) Naresh