IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14938 of 2009 DAYA NAND JHA S/O LATE PT. BHAIRAB JHA VILL.- HARIPUR, P.O. AND P.S.- GURUA BAZAR, ANCHAL- NARPATGANJ, DISTT.- ARARIA --- PETITIONER Versus 1. THE STATE OF BIHAR 2. THE CHIEF SECRETARY GOVERNMENT OF BIHAR, PATNA 3. THE SECRETARY-CUM-COMMISSIONER WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 4. THE JOINT SECRETARY WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 5. THE UNDER SECRETARY WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 6. THE CHIEF ENGINEER WATER RESOURCES DEPARTMENT, DARBHANGA 7. THE SUPERINTENDING ENGINEER WESTERN KOSI CANAL, CIRCLE, JHANJHARPUR, DISTT.- MADHUBANI 8. THE EXECUTIVE ENGINEER WESTERN KOSI CANAL DIVISION, KUNAULY, DISTT.- SUPAUL 9. THE PRINCIPAL SECRETARY WATER RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA ----------------- RESPONDENTS with CWJC No.14874 of 2009 INDRA NARAYAN LAL DEO S/O LATE PARMESHWAR LAL DEO R/O WARD NO.2, BIRPUR, P.S-BIRPUR, DISTT-SUPAUL, PRESENTLY POSTED AS ENGINEER ASSISTANT IN WESTERN KOSI CANAL DIVISION KUNAULY, DISTT- SUPAUL Versus 1. THE STATE OF BIHAR 2. THE CHIEF SECRETARY, GOVERNMENT OF BIHAR, PATNA 3. THE SECRETARY-CUM-COMMISSIONER WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 4. THE JOINT SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 5. THE UNDER SECRETARY WATER RESOURCES DEPARTMENT, null GOVERNMENT OF BIAHR, PATNA 6. THE CHIEF ENGINEER, WATER RESOURCES DEPARTMENT, DARBHAGNA 7. THE SUPERINTENDING ENGINEER. WESTERN KOSI CANAL, CIRCLE, JHANJHARPUR, DISTT- MADHUBANI 8. THE EXECUTIVE ENGINEER, null WESTERN KOSI CANAL DIVISION, KUNAULY, DISTT- SUPAUL 9. THE PRINCIPAL SECRETARY, WATER RESORUCES DEPTT. GOVT. OF BIHAR, PATNA -- RESPONDENTS ----------- For the petitioners: Mr. Markandeya Singh, Mr. Syed Wazir Ali, Mr. Balraj Kishore, Mr. Kumar Rajew, Advocates. For the State : A.A.G- I & A.A.G-II 2 23-11-2009 Both these writ applications raise a claim for - 2 - absorption from the post of Engineer Assistant to that of Assistant Engineer. The facts are common and, therefore, they are being disposed off by a common order. Heard learned counsel for the petitioners and the State. The petitioners were appointed as Engineer Assistant (Nepali quota) in the Koshi Project in January, 1976. They have continued in service thereafter. One of them agitated his claim earlier in Case No.146 of 1983 before the erstwhile Bihar Administrative Tribunal. The respondents took the stand that such cases were under consideration. The tribunal also observed that the respondents may allow the benefits of pay scale of Assistant Engineer till their services are retained under the terms and conditions of the advertisement. This was in the context that those Engineer Assistants, absorbed as Assistant Engineers, were getting higher pay scale. The Respondent State distinguishes the case of Anil Kumar Singh by urging that he was appointed as an Assistant Engineer prior to decision for abolition of the post of Engineer Assistant unlike the petitioners appointed after - 3 - abolition of the post. The petitioners came to this Court earlier in C.W.J.C.No.12941 of 1976. The respondents filed a counter affidavit quoted in the order of the Court dated 26.11.2008 at Annexure-7. It states that on 17.8.1973, the State Government announced decision to abolish the cadre of Engineer Assistant in pursuance of which all existing Engineer Assistants were absorbed in a phase manner. On 22.4.1974 another order was issued that it was only those Engineer Assistants in the cadre as on 31.12.1973 who were eligible for absorption. The petitioners having been appointed after cut off date have continued in service. Their condition was pitiful and was sympathetically considered but the Bihar Public Service turned down the proposal on 18.4.1994. The writ application was disposed with certain directions when the order dated 21.8.2009 has been passed. It states that the petitioners were appointed as Engineer Assistant after abolition of the post in 1973. Since the post was not in existence on the date of appointment, the question for absorption does not arise. - 4 - It is for the respondents to answer how the petitioners came to be appointed on a non-existent post. Was there appointment made on the post of Assistant Engineer mistakenly described as Engineer Assistant? What were the qualifications for the post of Assistant Engineer and whether the petitioners held the same or not on the date of their appointment? If they did , shall it not be deemed that they were appointed on the post of Assistant Engineer and they shall be entitled to the full scale of pay from the date of appointment less what has already been paid. If they did not hold the qualification when they did become eligible under the rule and procedures as existing prior to abolition of the post or the condition for absorption decided simultaneous with the abolition of the post? The respondents cannot simultaneously acknowledge the appointment of the petitioners yet contend that they were appointed on a non-existent post without delving into the question of their eligibility for absorption in terms of the aforesaid discussion. The impugned order is, therefore, not sustainable in law. It discloses no sufficient reasons and is self - 5 - contradictory when alleges appointment on a non-existent post. The impugned order dated 21.8.2009 is set aside. One of the petitioners is stated to have retired and another is on the verge of retirement. Let a fresh decision be taken by the Respondents in accordance with law and the aforesaid discussion within a maximum period of four months from the date of receipt/production of a copy of the present order. The respondents shall be required to pass a reasoned and speaking order considering all aspects of the matter ,as discussed above, with complete transparency in the decision making to facilitate judicial review, should the need arise. The writ application stands allowed. NKS/- ( Navin Sinha, J)