IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6383 of 2005 ASHARFI ROY . Versus THE STATE OF BIHAR & ORS . with CWJC No.6385 of 2005 PRAKASH CHANDRA BHARTI . Versus THE STATE OF BIHAR & ORS . with CWJC No.6489 of 2005 BIDYA NAND PRASAD . Versus THE STATE OF BIHAR & ORS . with CWJC No.7559 of 2005 RAM KUMARI DEVI & ORS . Versus THE STATE OF BIHAR & ORS . ----------- 8 04 .05.2011 These writ applications are being filed by the petitioners for quashing of orders issued by the Chief Engineer, Water Resources Department, Samastipur dated 3.12.2004 through different memo numbers including memo numbers 6102,6104,6108, whereby petitioners have been reverted from different posts of class III to Class IV post, after a lapse of more than 23 years on the ground that petitioners‟ regularization/absorption in the year 1981 from work charge establishment to regular establishment on Class III post was contrary to departmental letter No. 941 dated 19th February, 1981. Respondents are of the view that an employee working on Class IV post in 2 work charge establishment could not have been absorbed on class III posts and this illegality has been done in the case of the petitioners, on account of mis- interpretation of Departmental letter No. 941 dated 19.2.1981 of the Minor Irrigation Department. Through this letter the direction for absorption of employees working in work charge establishment, engaged only upto 21.8.1975 was issued with specific instruction to adjust such employees of the work charge establishment in the regular establishment in accordance with their seniority and qualification. The word “seniority and qualification”, was mis-interpreted and employees having higher qualification were absorbed on Class III post. In fact the instruction only indicated that employees working in work charge establishment who did not possess minimum qualification for being absorbed in regular establishment, should not be absorbed. However, this direction was interpreted otherwise and the employees having higher qualification were absorbed on the higher post, in violation of the rule. Admittedly all these petitioners were engaged in work charge establishment prior to 21.8.1975 and absorbed as per the policy decision of the 3 Government, in the light of directions issued vide departmental letter No. 941 dated 19.2.1981. There is no dispute that since 1981 petitioners have been continuously working on such posts as a regular employee and received all such benefits, as enjoyed by any regular employee, working on Class III post. After a lapse of more than 23 years, suddenly the Chief Engineer, Minor Irrigation Department had a realization that petitioners‟ absorptions was devoid of rule, and as such, they should not be allowed to continue on such posts. Accordingly, the impugned orders were issued, reverting the petitioners to Class IV posts. The question for consideration is whether petitioners could be penalized after a lapse of 23 years, for such an act of the respondents, which was done following the guidelines laid down in letter no. 941 dated 19.2.1981. The guidelines indicated that absorptions be made as per seniority and qualification. In different counter affidavits filed on behalf of the State it has been stated that the error committed by the authorities of the department in absorbing petitioners‟ and similarly situated employees on class III posts was detected immediately and the respondents in order to take 4 appropriate action, issued a letter of clarification dated 2nd April, 1983. It is obvious that despite issuance of clarification letter dated 2nd April, 1983, nothing was done and the employees who were absorbed on Class III post in pursuant to the Government circular dated 19th February, 1981 were allowed to continue. It is simply a question of interpretation so far the guideline mentioned in letter dated 19th February, 1981 is concerned. At the time of absorption of petitioner, Government circular dated 19th February, 1981 had been interpreted in the manner that employees working in work charge establishment, having higher qualification are to be absorbed on a higher post and employees with lesser qualification on Class IV posts. Counsel appearing for the petitioners submits, that prior 1975several employees were appointed in the Miner Irrigation Department in the work charge establishment and a big question before Government was as to how to adjust/absorb them. Since the number of sanctioned vacant class IV posts was less in the regular establishment, and number of employees in work charge establishment much higher, as such a longer time would have been required for 5 their absorption. In this circumstance, it was decided that employees having higher qualification be absorbed on class III posts and the persons having less qualification on lower posts. This was a decision to adjust all such employees engaged in work charge establishment up to 21.8.1975. The Chief Engineer of the Minor Irrigation Department subsequently interpreted it otherwise, that employees who do not possess minimum requisite qualification for absorption should not be absorbed but employees who are senior and qualified should only be absorbed. Counsel for the petitioners submits that altogether 45 persons had been regularized on Class III posts in Samastipur Division in the year 1981 in the light of the policy decision of the Government. Reversion orders had been issued in case of all these employees and reversion order of 11 persons were quashed by High Court and in compliance of the direction in the writ application they have been reinstated on Class III posts. In some other cases also the department has recalled the reversion order in the light of the orders passed by the High Court and 26 such persons have already been reinstated. It has also been stated that the reversion order of 6 Suresh Kumar Rajak was quashed by the High Court in CWJC No. 3706 of 1997 and that was affirmed in LPA No. 330 of 1998 as Letters Paten Appeal preferred by State was dismissed on 14.10.1998. Finally, SLP ( Civil) No. 613 of 1999 preferred by the State was also dismissed by the Apex Court. Similar is the case of Ram Lakhan Prasad, Raman Kumar Srivastava and others. However CWJC No. 1342 of 1999 and CWJC No. 1374 of 1999 challenging similar reversion order were dismissed by Hon‟ble Mr. Justice S,N.Jha, simply for the reason that the decisions rendered by Supreme Court and the Division Bench of the Hon‟ble High Court could not be brought to the notice of His Lordship. Counsel appearing for the State, on the other hand has brought several orders, dismissing writ applications filed by the petitioners, challenging the reversion order, as well as orders passed in Letters Patent Appeals challenging the order passed by the Single Judge, affirming the dismissal orders passed by Single Judge. Reliance has also been placed by the counsel appearing for the State on a full Bench decision in the case of Durga Nanda Jha Vs. State of Bihar reported in 2007(4) PLJR 259. Counsel for the 7 petitioners have brought on record a recent division Bench decision of this Court passed in Letters patent Appeal No. 1400 of 2010, heard analogous with CWJC No. 4211 of 2004. The Division Bench in this decision has distinguished the judgment of the full Bench passed in Durga Nand Jha‟s case (supra), with a finding that „before the Full Bench neither the aforesaid circular dated 19th February, 1981 nor the clarification dated 2nd April, 1983 was the subject matter of interpretation‟. The above referred circular dated 19th February, 1981 has not been brought on record, though the counter affidavit filed by the State Government. The said circular was issued specifically in respect of the work charge employees in the Irrigation Department. The preamble suggested that appointment on work charge 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 July, 1975. Nevertheless, the appointment on 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 8 time. It was, therefore, decided that the maximum number of work charge employees appointed prior to 21st 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 February, 1981 the State Government did not intend to grant promotion to any of the work charge employees and that in no circumstance a Class IV employee be absorbed in Class III service. It has also been held in the Division Bench Judgment that indisputably the appellants were the beneficiaries of the aforesaid circular dated 19th February, 1981, as they were appointed in work charge establishment prior to 21st July, 1975. Keeping in view their education qualification they were absorbed in Class III service under order dated 16th July, 1981 and 29th August, 1981. Even after the aforesaid explanation/clarification dated 2nd April, 1983 the appellants were continued in Class III service until the reversion orders were made in 2004. In above view of the matter, it was held that the absorption of the appellants in Class III service 9 pursuant to the Government circular dated 19th February, 1981 was legal and valid. Their induction in regular Class III service cannot be said to be „ void- abinitio‟. If at all there were any confusion in respect of interpretation of the circular dated 19th February, 1981, the respondents were required to take appropriate action soon after the clarification dated 2nd April, 1983. Evidently, that was not done, as such induction of the appellants in Class III service was legal and valid. Since, they were allowed to continue for more than 20 years, they could not have been legitimately reverted on 11th February, 2004 or on any other date. The entire foundation that the appellants‟ absorption in Class III service was illegal and „void ab initio was held to be erroneous. I find that the case of these petitioners is fully covered by the aforementioned Division Bench Judgment. In the case of the petitioners also the impugned order, reverting them from class III posts to class IV post, after more than 20 to 23 years, legally could not have been passed. Petitioners‟ case is fully covered by the case of those employees also, whose reversion orders were affirmed upto the Apex Court. On account of continuously working on such 10 posts for more than 23 years, petitioners‟ appointment cannot be held to be illegal and void ab initio. Counsel appearing for the State has given reference of such cases, in which the reversion order have not been interfered by this Court, but considering the divergent view on the same point, I feel that the orders in favour of the petitioners should be followed, as equity demands. Accordingly, all these writ applications are allowed. The reversion order contained in different memo numbers in the writ applications dated 3.12.2004 issued by the Chief Engineer, Water Resources Department, Samastipur are quashed. Petitioners will be entitled for reinstatement on their posts with all consequential benefits. Respondents are directed to issue orders in this regard immediately on receiving information of this order, preferably within a period of four weeks from the date of the communication/receipt of the order. A. Kumar ( Mridula Mishra, J.)