IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.17683 of 2009 1. SRI BHAGWAN RAM S/O LATE BHUNESHWAR RAM R/O VILL-RAGHO DIHARA, P.O-DAWAT, P.S-SURAJPURA, DISTT- ROHTAS AT SASARAM, PRESENTLY WORKING AS ROAD MAZDOOR IN THE OFFICE OF ASSISTANT ENGINEER, ROAD DIVISION, BIKRAMGANJ, DISTT- ROHTAS AT SASARAM Versus 1. THE STATE OF BIHAR 2. THE SECRETARY, PERSONNEL AND ADMINISTRATIVE REFORMS DEPRTMENT, GOVT. OF BIHAR, PATNA 3. THE SECRETARY, ROAD CONSTRUCTION DEPARTMENT, GOVT. OF BIHAR, BISHWESHWARAIYA BHAWAN, BAILEY ROAD, PATNA 4. THE ENGINEER-IN-CHIEF-CUM-ADDITIONAL SECRETARY-CUM-SPECIAL SECRETARY ROAD CONSTRUCTION DEPARTMENT, GOVT. OF BIHAR, BISHWESHWARAIYA BHAWAN, BAILEY ROAD, PATNA 5. THE SUPERINTENDING ENGINEER, ROAD COSNTRUCTION DEPARTMENT, BHOJPUR ROAD CIRCLE, ARA 6. THE EXECUTIVE ENGINEER ROAD CONSTRUCTION DEPARTMENT, ROAD DIVISION, DEHRI ON SONE ----------- 2. 26.2.2010 Heard learned counsel for the petitioner and the State. The case of the petitioner is that he was appointed in the District Board of Shahabad later known as Rohtas. Certain works pertaining to Rural Development Roads were taken over by the P.W.D. The administrator of the District Board, Rohtas on 21.3.1980 transferred the service of the petitioner to the P.W.D. stating that he was working on daily wage. The petitioner joined. The joining of the petitioner was accepted by the Executive Engineer. However, they were not employed by the concerned authority in the P.W.D. when the Executive Engineer returned their services. They reported at the District Board which also did not accept their service. 2 The District Board filed a counter affidavit stating that the Dumraon road on which the petitioner was working was taken over by the P.W.D. and therefore the service of the petitioner had been transferred along with others. The P.W.D. declined to absorb those on daily wage like the petitioner. The District Board reiterated that they were on daily wage for last several years. The District Board was unable to absorb since the work itself was taken over by the P.W.D. This Court in its order dated 9.1.1984 passed in C.W.J.C. No. 2044 of 1981 noticed that no counter affidavit had been filed by the State of Bihar or the Superintending Engineer, Executive Engineer, Sub Divisional Officer etc. of the P.W.D. Even though, the writ application had been admitted as far back as on 24.11.1981. Despite repeated adjournments thereafter, no counter affidavit was filed. Even after hearing concluded, the Court posted the matter for judgment after some time to enable the State respondents to file a counter affidavit, if so advised. This latitude given to them appears to have been misconstrued. This Court then held as follows:- “Since no counter affidavit has been filed denying any of the facts stated in the petition and since the case, made out by the petitioners, has been supported by the District Board which is a Public authority, we wish no reason to disbelieve the statement made in this petition” 3 The Court then held at Paragraph-4 that it was the duty of the P.W.D. to employ the petitioner and take work from him. He had been working for more than 10 years before with the District Board and therefore it may be legitimate to interfere that his employment was necessary for proper maintenance of the roads and were therefore entitled to be retained by the P.W.D. This judgment is not disputed to have attained finality and was never question by the respondents. Thereafter his service book was opened in the P.W.D. Salary was not paid for which he had made representation. However, he was kept in the work charge establishment. He then filed C.W.J.C. No. 10790 of 2001 for being taken into the regular establishment and which this Court referred to a three man committee for consideration. The three man committee order dated 25.11.2008 opined that the petitioner holds the eligible qualification for appointment. He was in engagement since 31.1.1984 and fulfilled the requirement of minimum 10 years of employment. He had been appointed by the competent authority and did not continue to work under orders of any Court. It then abruptly concluded with the finding that the post on which he was appointed was not sanctioned. 4 Two copies of the writ petition were served in the office of the Advocate General on 7.12.2009. The High Court rules were amended to require the petitioner to file two copies of the writ petition so that one copy of the writ petition could be availed by the State authorities to expeditiously file their counter affidavit so that the writ petition may be disposed off promptly. This time also the respondents seem to be in no hurry to file their counter affidavit nearly two months later. This Court is not persuaded to accede to the request for adjournment today for that purpose. The order dated 9.1.1984, in C.W.J.C. No. 2044 of 1981 having attained finality inter partes, the respondents cannot brush aside the same by a simple reference. It is not open to the respondents to go behind the order of the Court. The failure to discuss the applicability and/or inapplicability of the same with reasons makes the order suffer from the vice of arbitrariness when it fails to take into consideration relevant materials. The impugned order dated 25.11.2008 is set aside. The matter is remanded to the respondents to consider the claims of the petitioner afresh. Let such consideration be done afresh by a reasoned and speaking order, within a maximum period 5 of two months from the date of receipt/production of a copy of this order so that judicial review be facilitated, should it be required. The application stands disposed. P. Kumar (Navin Sinha, J.)