THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6878 of 1997 SHRI TRIVENI RAUT son of Late Hari Raut, resident of Mohalla Sohjana, near Kali Mandir, Jhajha, Distt. Jamui, and presently posted in the West Kosi Canal Division, Phulparas, Camp Ghogharadiha, Distt- Madhubani…. Petitioner. Versus 1. THE STATE OF BIHAR 2. The Secretary cum- Commissioner, Department of Water Resources (Irrigation), Govt. of Bihar, Secretariat, Building Patna. 3. The Chief Engineer, Water Resources Department (Irrigation) Darbhanga. 4. The Superintending Engineer, Water Resources Department (Irrigation ) West Koshi Canal Circle, Nirmali, Dist. Supaul. 5. The Executive Engineer, Water Resources Department (Irrigation), West Koshi Canal Circle Division, Phulparas Camp, Ghogardiha, Distt. Madhubani. … Respondents. ----------- 4. 17.05.2011 Heard Mr. Alok Kumar, learned counsel for the petitioner and learned counsel for the State. The petitioner aggrieved by an order dated 9.11.1996 has filed this writ application by taking a plea that the impugned order was passed by the Executive Engineer demoting him from the post of Correspondence Clerk to Survey Khalasi was wholly without jurisdiction inasmuch as the said absorption of the petitioner on the post of Correspondence Clerk was made under the order of the Establishment Committee headed by the Chief Engineer. Learned Counsel for the petitioner has 2 submitted that an Executive Engineer being a sub- ordinate authority could not have annulled the order of the Superior authority i.e. the Chief Engineer and therefore even if he (Executive Engineer) had found certain anomaly in the order of absorption of the petitioner on the post of Correspondence Clerk, the only option left to the Executive Engineer was to refer the matter to the Engineer-in-Chief or the State Government being the higher authority to the Chief Engineer. Learned Counsel for the State would submit that when the circular of the State Government dated 19.2.1981 did not envisage absorption of a class IV employee on Class III post, the resultant order of absorption passed in the case of the petitioner absorbing him on Class III post was itself impermissible and therefore if the Executive Engineer following the precedents of other cases decided by the Government had sought to reduce the petitioner in the rank from the post of Correspondence Clerk to Survey Khalasi that cannot be faulted either on fact or in law. In the considered opinion of this Court, 3 the purport of the impugned order is that the Executive Engineer has already cancelled absorption of the petitioner after a period of 13 years in which he had been working on the post of Correspondence Clerk. The last sentence of giving a show cause notice in the impugned order virtually would amount to post facto hearing and therefore this Court cannot approve such an order passed by the Executive Engineer specially when it is in flagrant violation of the principles of natural justice. Rightly or wrongly the petitioner had continued on the post of Correspondence Clerk for a period of 13 years and therefore if the same was not in accordance with law including the Government Circular dated 19.2.1981 and the absorption of the petitioner on the post of Correspondence Clerk was impermissible, the Executive Engineer at best could have referred the matter to the Engineer-in-Chief or the State Government but he could not have himself passed the impugned order having an effect of cancelling the order passed by the Chief Engineer. If such recourse adopted is approved by this Court, there would be a 4 complete chaos in the functioning of administrative hierarchy where the Executive Engineer will be sitting over the order of the higher authority, namely the Chief Engineer. In that view of the matter, the impugned order cannot be sustained either on fact or on law and accordingly, this writ application is allowed by quashing Annexure-1. It is, however, made clear that the petitioner will not ipso facto become entitled for the consequential relief either of the post of Correspondence Clerk or salary thereof till an appropriate decision is taken by the Engineer-in- Chief. The petitioner had already retired in the month of January 2010, his date of birth being 15.1.1950 and thus the monetary benefit to the petitioner of the post of Correspondence Clerk will depend only on his actual entitlement in terms of Government Circular dated 19.2.1981 permitting his absorption from Work Charge Establishment in the regular establishment on an equivalent post. Since the order of absorption in the present case had been passed by the Establishment 5 Committee headed by the Chief Engineer, this Court would direct the Engineer-in-Chief of Water Resources Department to examine the case of the petitioner and if it is found by him that the petitioner’s absorption on the post of Correspondence Clerk was not in accordance with the Government Circular dated 19.2.1981, he would pass an order for treating the service of the petitioner absorbed only on a Class IV post on which he was working in the Work Charge Establishment. Such order in terms of the government policy of regularization of work charge establishment contained in Circular dated 19.2.1981 in the case of the petitioner will have to be passed even now in view of the fact that this Court had not stayed the operation of the impugned order dated 9.11.1996 on account of which the petitioner had continued to work on Class IV post after the impugned order was passed on 9.11.1996 and till the date of his retirement i.e. 30. 1. 2010. Thus, the petitioner’s entitlement either as a Class III employee or Class IV employee on the basis of his being absorbed as Class IV employee in terms of Circular dated 19.2.1981 will have to be 6 decided by the Engineer-in-Chief in keeping with the earlier government policy on the subject. Such exercise in case of the petitioner must be completed within a period of six months from the date of receipt/production of a copy of this order. In the result, this writ application in the light of observation and direction is allowed only to the extent indicated above. There would be however no order as to costs. kanchan (Mihir Kumar Jha, J.)