IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11319 of 2006 MUKHTAR SINGH, SON OF LATE SUKHDEO SINGH, RESIDENT OF VILLAGE-TILHI, P.O.-TILHI, P.S.- SANBHAULI, DISTRICT-ROHTAS …………………….. PETITIONER VERSUS 1. THE STATE OF BIHAR 2. THE SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3. THE ADDITIONAL SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 4. THE UNDER SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 5. THE CHIEF ENGINEER, WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, SAMASTIPUR 6. THE CHIEF ENGINEER, IRRIGATION DEPARTMENT, DEOGHAR 7. THE SUPERINTENDING ENGINEER, FLOOD CONTROL CIRCLE, KHAGARIA 8. EXECUTIVE ENGINEER, FLOOD CONTROL DIVISION, KHAGARIA ………………….. RESPONDENTS WITH CWJC NO.5686 OF 2005 YOGENDRA PRASAD YADAV , SON OF RAMJI PRASAD YADAV, RESIDENT OF VILLAGE – BAPU NAGAR BALUAHI, P.S. TOWN & DISTRICT- KHAGARIA ……………….. PETITIONER VERSUS 1. THE STATE OF BIHAR 2. THE SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3. CHIEF ENGINEER, WATER RESOURCES DEPARTMENT, SAMASTIPUR 4. SUPERINTENDING ENGINEER, FLOOD CONTROL CIRCLE, KHAGARIA 5. EXECUTIVE ENGINEER, FLOOD CONTROL DIVISION, BEGUSARIA …………………… RESPONDENTS IN C.W.J.C. NO. 11319 OF 2006 FOR THE PETITIONER: MR. AJAY KUMAR-1, ADV. MD. MUSTAQUE ALAM, ADV. FOR THE STATE: MR. CHAKRADHARIA SHARAN SINGH, AAG -6 MR. RAKESH KUMAR, AC TO AAG-6 IN C.W.J.C. NO. 5686 OF 2005 FOR THE PETITIONER: MR. RAVINDRA KUMAR SINHA NO. 02, ADV. FOR THE STATE: MR. SANJAY PRAKASH VERMA, AC TO GA-3 ----------- 2 03. 11.05.2011 Heard learned counsel for the petitioner and the State. These two Writ Applications have been filed by the petitioners for quashing Orders, whereby the petitioners have been reverted from Class – III post to Class – IV post with retrospective effect, i.e., with effect from the date they were absorbed on Class – III posts. Petitioners in both the Writ Applications were absorbed against Class – III post while working in the Work Charge Establishment against Class – IV post. The absorption and regularization orders had been passed in the light of Departmental letter no. 941, dated 19.02.1981. Reversion Orders were passed on the ground that absorption on Class – III posts was on account of misinterpretation of Departmental letter no. 941, dated 19.02.1981. In the Departmental letter no. 941, dated 19.02.1981, issued by the Miner Irrigation Department, there was a direction for absorption of employees working in the Work Charge Establishment, engaged only up to 21.08.1975. Specific instruction was to adjust such employees of the Work Charge Establishment in the regular establishment in accordance with 3 seniority and qualification. The word ‘seniority’ and ‘qualification’ was misinterpreted and employees, having higher qualification were absorbed on Class – III post. Although, the instruction was only to this effect that employees in the Work Charge Establishment, who did not posses minimum qualification for being absorbed in the regular establishment, should not be absorbed. On account of wrong interpretation, employees working in the Work Charge Establishment against Class – IV posts having higher qualification were absorbed on higher post, in violation of the order and rule. The order of reversion has been passed against the petitioner after more than 20 years of their absorption on Class – III post. The petitioner has annexed letter, dated 26.09.1981, as Annexure- 2 along with C.W.J.C. No. 11319 of 2006. On perusal of this letter, it transpires that the reason behind passing of reversion order is not sustainable. The letter, dated 26.09.1981 is very much specific that persons, having higher qualification be absorbed against higher posts, even Class – III posts, as per their seniority and qualification. The issue relating to reversion of employees, 4 working in the Minor Irrigation Department, on account of their absorption on higher post, has been considered in several cases. In some of the cases, Orders have been passed in favour of the petitioner, which has been affirmed up to the Apex Court. In another cases, it has been decided against them. Counsel, appearing for the State in this regard has placed reliance on a Full Bench Decision, reported in 2007(4)PLJR 259 (Durganand Jha Vrs. State of Bihar). The applicability of Full Bench decision in the matters, like these two Writ Applications, has been discussed and distinguished in the recent Division Bench’s Decision, passed in Letters Patent Appeal No. 1400 of 2010 and analogous cases. While distinguishing the facts of the Full Bench and the cases like the present one, it has been stated that neither the Circular dated, 19th of February, 1981 nor the clarification dated 2nd April, 1983 were the subject matter of interpretation before the Full Bench. Above-referred circular dated 19th of February, 1981 was issued specifically in respect of the work charge employees in the Irrigation Department. The preamble of this letter suggests that appointment on the Work Charge 5 Establishment was made indiscriminately pursuant to the Government Order, dated 22nd March, 1970. Further appointment on Work Charge Establishment was banned under the Government Circular dated 21st of July, 1975. Nevertheless, the appointment in Work Charge Establishment was far in excess of the sanctioned strength. The absorption of such excess work charge employees on the sanctioned post would take a long time. It was, therefore, decided that the maximum number of work charge employees appointed prior to 21st of July, 1975 be absorbed on the regular vacant posts according to their qualification. The said circular was later explained under circular dated 2nd April, 1983. Under the said explanation, it was clarified that under the circular dated 19th of February, 1981, the State Government did not intend to grant promotion to any of the work charge employees on Class – III post and that in no circumstances a Class – IV employees be absorbed in Class – III service. The Division Bench, however, held that since letter dated 2nd of April 1983 remained unimplemented for several years and the persons, who were absorbed in Class – III posts from Work Charge Establishment 6 continued in Class – III services, until their reversion order was issued. In this view they can not be reverted back to the original Class – IV posts. I also find that the petitioners remained on the promoted post for such a long time, now, can not be reverted back. The case of these two petitioners is fully covered by the Division Bench, wherein the Full Bench Decision in Durganand Jha Vrs. State of Bihar case has been distinguished. Another distinguishing feature so far the present petitioners are concerned, the petitioners before the Full Bench were Casual Workers, whose appointment were not in accordance with the relevant rule and so far the present petitioners are concerned they were working in the Work Charge Establishment. For all these reasons, I find that the reversion order against the petitioner, issued in C.W.J.C. No. 1319 of 2006, bearing no. 1/Stha-1/Mu-17-ko-A-37/04, issued by the Chief Engineer, Water Resources Department, Samastipur dated 03.12.2004 and the Order passed in case of petitioner in C.W.J.C. No. 5686 of 2005, dated 03.12.2004, contained in Memo No. 6116, issued by the Chief Engineer, Water Resources Department, Samastipur are fit to be quashed. 7 The Writ Applications are allowed. The petitioners are directed to be reinstated on the post from which they were reverted back on account of the impugned orders. They will also be entitled for all consequential benefits for which they have remained deprived on account of their reversion from Class – III post to Class – IV. SKM (Mridula Mishra, J.)