IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4361 of 2004 Suresh Kumar Sharma, S/o-Late Chengan Upadhayay, resident of Village- & P.O.-Jaitpur, P.S.-Palanwa, District-East Champaran, at present posted at Gandak Pariyojana, Gopalganj. –Petitioner. VERSUS 1. The State of Bihar. 2. Commissioner-cum-Secretary, Water Resources Department, Sichai Bhawan, Patna (Bihar). 3. Chief Engineer, Water Resources Department, Siwan. –Respondents. ----------- 06 20.01.2011 The petitioner has come to this Court once again for virtually the same relief. He challenges now the office order dated 18th July, 2003 of the Chief Engineer, Water Resources Department, Siwan (Annexure-4). By the impugned order, it has been ordered that in view of the departmental decision petitioner who was posted and working as Storekeeper at Saran Canal Division, Gopalganj by office order no.28 dated 11.02.1999 be cancelled and he be posted as Chaukidar. State has filed a counter affidavit. Rejoinder and supplementary affidavits have been filed. Pleadings being complete, with consent of parties, the writ petition has been heard for disposal at this stage itself. It is not in dispute that petitioner was originally appointed as a Chaukidar, which is Class-IV post. It appears that there being several vacancies in Class-III post in the department itself. A decision was taken to promote the Chaukidar who had requisite qualification to the said post. Accordingly, petitioner was so promoted along with one Sri Raj Kishore Singh and Sri Munsi Prasad Singh. It - 2 - appears that some persons were aggrieved by this promotion and they had moved this Court in a writ petition being C.W.J.C. No.1449 of 1985 and the department being confronted with the challenge took a decision to revert the petitioner and the other two persons. Accordingly, the Government in the Department of Water Resources vide its letter dated 13.10.1995 (Annexure-D to the counter affidavit) wrote the Chief Engineer, Water Resources Department, Siwan to immediately revert the petitioner and then give statement of facts for filing counter affidavit in the aforesaid writ petition. It is not in dispute that pursuant to the aforesaid direction vide office order no.74 dated 02.11.1995 (Annexure-6 of the supplementary affidavit to the writ petition) the Chief Engineer, Water Resources Department, Siwan reverted the petitioner to the post of Chaukidar. The petitioner assailed the reversion order dated 02.11.1995 in C.W.J.C. No.9695 of 1995, which was disposed of on 02.01.1997 (Annexure-1) to the writ petition. This Court considering the fair stand taken by the State disposed of the writ petition with a direction to the Chief Engineer to examine if there is any vacancy of Storekeeper at Gopalganj and if so, the same may be filled up after considering the case of the petitioner and other eligible candidates to hold the said post in accordance with law. Once the writ petition was disposed of it is not in dispute that the matter was considered by the Chief Engineer and ultimately by office order dated 11.02.1999 (Annexure-2), holding that the post of Storekeeper at Gopalganj was vacant, petitioner was promoted and posted to the said post but this - 3 - posting was conditional. It was for six months and he was entitled to his own pay-scale. Both of which were dependent on decision taken in this regard by the department. Subsequently, by office order no.96 dated 23.09.1999 (Annexure-3 to the writ petition), the appointment was further extended on the same terms and conditions, apparently the department could not take any final decision in the matter. It is not disputed that it continued as such till by the impugned order dated 18.07.2003 (Annexure-4) the same was cancelled as per departmental decision. This Court queried from the petitioner as to what was the departmental decision which led to this cancellation. Learned counsel for the petitioner informed the Court that no reason was disclosed. The situation was saved by the State’s own counter affidavit. In its counter affidavit, the State in paragraph-9 has stated that the decision to revert the petitioner was taken pursuant to departmental letter dated 13.10.1995 (Annexure-D to the counter affidavit), which has already been referred to above. Two issues immediately arise. Firstly, as seen from the facts noted above, it is pursuant to this letter dated 13.10.1995 (Annexure-D) that petitioner was reverted to the post of Chaukidar by order dated 02.11.1995 (Annexure-6) and it is that which was impugned in the first writ petition. Considering all those facts and the stand of the State, the writ petition was disposed of with a direction to consider the petitioner’s appointment if there was vacancy at the post of Storekeeper at Gopalganj and it was on this consideration that Annexure-2 was then - 4 - issued in 1999 posting the petitioner as Storekeeper at Gopalganj. Secondly, how could a letter of 1995, which was there and which had been acted upon and notwithstanding which petitioner was promoted in 1999, can now be acted upon in 2003 to revert the petitioner. In my view, this is a lame excuse. The situation had already been considered in the earlier writ petition and it had been directed that the petitioner would be considered for appointment on the post of Storekeeper at Gopalganj, if there was a vacancy in 1999. A vacancy was found and he was so posted. The earlier letter dated 13.10.1995 and its follow up action dated 02.11.1995 had spent its force and had become a part of history. If that be so, there was no cause to revert the petitioner to the post of Chaukidar. It was taken on non est grounds. It suffers from mala fide in law. It cannot be sustained and, therefore, Annexure-4 has to be quashed. While doing so, I may also observe that if work is taken from a person at a higher post involving different and greater responsibility then such a person cannot be denied the remuneration attached to that post, doing otherwise would be absolutely arbitrary for a welfare Government as this Government professes. It is not permissible to do so. That would be antithesis of Article-14 of the Constitution. Thus, while setting aside Annexure-4, I direct that the petitioner would be entitled to full remuneration which is attributable to the said post of Storekeeper at Gopalganj. Before closing, I may also notice that by letter dated - 5 - 13.10.1995 (Annexure-D) three persons were reverted one of which is Munsi Prasad Singh. They were all reposted on Class-III post. Munsi Prasad Singh was also posted as Account Assistant. That is evident from Annexure-7 to the supplementary affidavit of the petitioner which also refers to the earlier order dated 02.11.1995 (Annexure-6) by which petitioner had also been reverted. With the aforesaid observations and directions, the writ petition stands disposed of. Trivedi/ (Navaniti Prasad Singh, J.)