IN THE HIGH COURT OF JUDICATURE AT PATNA LETTERS PATENT APPEAL No.1400 of 2010 IN CIVIL WRIT JURISDICTION CASE No. 4211 of 2004 WITH INTERLOCUTORY APPLICATION No. 7857 of 2010 IN LETTERS PATENT APPEAL No.1400 of 2010 ==================================================== 1. Anugrah Jha, Son of Late Jai Krishna Jha, resident of Village- Navtole, P.S. Madhepur (Jhanjharpur Shivir) District-Madhubani working as correspondence Clerk, Flood Control Division, No.1, Jhanjharpur, District-Madhubani. 2. Surendra Chaudhary, Son of late Rameshwar Chaudhary, resident of Village- Godhanpur, P.S. Jhanjharpur Bazar, District-Madhubani (Bihar) at present working as correspondence Clerk, Flood Control Division, No.1, Jhanjharpur, District-Madhubani. …. …. Appellants Versus 1. The State of Bihar. 2. The Secretary, Water Resources Department, Government of Bihar, Patna. 3. The Chief Engineer, Water Resources Department, Samastipur, District Samastipur. 4. The Superintending Engineer, Water Resources Department, Samastipur, District Samastipur. 5. The Executive Engineer, Flood Control Division No.-1, Jhanjharpur, District-Madhubani. 6. The Executive Engineer, Flood Control Division, Darbhanga, District- Darbhanga. …. …. Respondents ==================================================== Appearance : For the Appellant : Mr. Tejendra Sinha, Advocate For the Respondent: Mr. Mayank Rukhiyar, A.C. to G.A.-5 ==================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 4. 1.10.2010. Interlocutory Application No. 7857 of 2010: This application under Section 5 of the Limitation Act has been filed by the appellants for condonation of delay of 373 days occurred in filing the - 2 - Letters Patent Appeal. In view of the explanation given in paragraphs 3 and 4 of the application, the delay in filing the Letters Patent Appeal is condoned. The Interlocutory Application stands disposed of. Letters Patent Appeal No.1400 of 2010: With the consent of the learned Advocates this appeal is heard and decided today. This appeal under Clause 10 of the Letters Patent has been preferred by the writ petitioners against the judgment and order dated 10th July 2009 passed by the learned single Judge in above C.W.J.C. No. 4211 of 2004. The appellant No.1 was appointed as Peon in work charge establishment under the Irrigation Department of the State of Bihar on 14th November 1967. The appellant No.2 was appointed as Bund Chowkidar in work charge establishment under the Irrigation Department of the State of Bihar on 26th February 1973. By the orders dated 16th July 1981 and 29th August 1981 made by the Chief Engineer the appellants were absorbed in Class-III service as Clerks. Since their absorption in Class-III service they continued to serve as such for more than 20 years. On 25th January 2002 they were called upon to show cause why on absorption in regular service they should not be adjusted in Class-IV service. The notices were immediately replied by both the appellants on 25th January 2002. On 11th February 2004 the Executive Engineer, Flood - 3 - Control Division made order of reversion of the appellants to Class-IV service. Feeling aggrieved, the appellants filed above C.W.J.C. No. 4211 of 2004 under Article 226 of the Constitution. The learned single Judge following the judgment of the Full Bench of this Court in the matter of Durganand Jha v. State of Bihar (F.B.), 2007(4) PLJR 259 dismissed the writ petition. The learned single Judge was pleased to hold that the absorption of the appellants in Class-III service was illegal and void ab initio and such absorption could not be protected even after a lapse of 20 years. Feeling aggrieved the writ petitioners have preferred this appeal. Learned Advocate Mr. Tejendra Sinha has appeared for the appellants. He has submitted that the case of the appellants could not have been equated with the employees whose reversion was the subject matter of challenge before the Full Bench. He has submitted that the absorption of the appellants in Class-III service was pursuant to the conscious decision taken by the State Government under its Circular dated 19th February 1981. The absorption of the appellants in Class-III service, therefore, was not illegal or void ab initio and that could not have been cancelled after more than 20 years, as has been done in the present case. Learned Advocate Mr. Mayank Rukhiyar has appeared for the respondent authorities. He has submitted that the Circular dated 19th February 1981 was clarified by the State Government on 2nd April 1983. The - 4 - appellants who were in Class-IV service in work charge establishment could not have been absorbed in Class-III service. Even pursuant to Circular of 19th February 1981 the appellants could not have been absorbed in regular Class-III service. Thus, their absorption in Class-III service was illegal and was liable to be cancelled at any time. The challenge to such reversion even on the ground of delay and laches should fail. He has submitted that that is the view expressed by the Full Bench. We may at the outset note 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 is placed on record in 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 suggests 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 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. - 5 - 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 employee and that in no circumstances a Class-IV employee be absorbed in Class-III service. It is indisputable that the appellants were the beneficiaries of the aforesaid circular dated 19th February 1981. Both of them were appointed in work charge establishment prior to 21st July 1975. Keeping in view their educational 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, we hold that the absorption of the appellants in Class-III service 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 ab initio. 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. We are of the view that if the induction of the appellants in Class-III service was legal and valid and they were allowed to continue as such for more than - 6 - 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 is erroneous. The impugned order made against the appellants on such premise, therefore, calls for interference. It may be noted that though the learned single Judge has taken note of the circular dated 19th February 1981 and the clarification dated 2nd April 1983, he has failed to note that the appellants’ absorption on regular establishment having been done under the Government circular cannot be held to be illegal or void ab initio. As to the aforesaid Full Bench judgment, we must note that this Court has laid down a general principle with which there cannot be any dispute. However, before the Full Bench the cases were that of casual workers whose appointments were not in accordance with the relevant rules. That being not the case before us, the decision of the Full Bench shall not apply to the facts of the present case. For the aforesaid reasons, the appeal is allowed. The impugned judgment and order dated 10th July 2009 passed by the learned single Judge in above C.W.J.C. No. 4211 of 2004 is set aside. C.W.J.C. No. 4211 of 2004 is allowed. The impugned order of reversion dated 11th February 2004 is quashed and set aside. Consequently, the appellants-writ petitioners will be entitled to the amount of difference in salary; revision of pension payment order and the amount of difference in terminal benefits. The - 7 - respondents will comply with the above directions and pay the amount of difference in salary within three months from today, in any case, not beyond 31st December 2010. The amount of difference in terminal benefits will be paid as early as possible but not beyond 31st March 2011. It is further directed that in the event the respondents fail to pay the amount of difference in salary and the terminal benefits within the time specified, the appellants-writ petitioners will be entitled to interest on the said amount at the rate of 10 per cent per annum commencing from 1st January 2011 and 1st April 2011 respectively till the date of payment. Pawan/- (R.M. Doshit, CJ) (Jyoti Saran, J)