IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6952 of 2004 SHRI BHAGWAN SINGH . Versus THE STATE OF BIHAR & ORS . ----------- For Petitioner:- Mr. Awadhesh Kumar Mishra, Mr. Anand Kr. Mishra, Advocate For the Respondent:- Mr. Mukesh Thakur, AC to GA III 8 02.02.2011 Heard the counsel for the petitioner and the State. Petitioner in this writ application was initially appointed as Chowkidar and joined the post on 15.11.1971 in the Office of Executive Engineer, Water Wages Division, Jhajha. After sometime the petitioner was assigned the work of Routine Clerk and started discharging the duty of the assigned post with effect from 16.10.1973. Despite the fact that he was working on the post of Routine Clerk he was not being paid the salary for the post of Routine Clerk. Finally after long persuasions the then Superintending Engineer, Irrigation Circle, Kharagpur vide letter no. 395 dated 22.2.1085 granted promotional pay scale to the petitioner with all consequential benefits with effect from 16.10.1973. For 31 years the petitioner continuously served on this promotional post without there being any adverse remark against him but suddenly vide 2 letter no. 3073 dated 22.5.2003 the Chief Engineer, Water Resources Department, Dehri sought for an explanation from the petitioner within 15 days as to why the first time bound promotion given to the petitioner be not cancelled. The petitioner submitted his show cause that he has not given any time bound promotion, as such there is no question of its cancellation. Thereafter the Chief Engineer, Water Resources Department, Dehri issued an order contained in memo no. 1277 dated 19.3.2004, whereby the petitioner was demoted from the post of Correspondence Clerk to the post of Choukidar. Before issuing this demotion order neither any departmental proceeding was initiated nor was any explanation called for from the petitioner. Petitioner has filed this application for quashing of order contained in memo No. 1277 dated 19.3.2004, whereby the petitioner has been demoted from the post of Correspondence Clerk to the post of Choukidar. Departmental appeal had also been preferred by the petitioner but that also remained undecided. Counter affidavit has been filed on behalf of the respondents-State stating that the Water 3 Resources Department has framed rules for adjustment of its work charged employees into regular establishment vide letter no.941 dated 19.2.1981 and a clarification of those rules have also been made by the Irrigation Department vide letter no. 517 dated 2.,4.1983, letter no. 3875 dated 19.8.1995, letter no. 994 dated 1.7.1998 and letter no. 99 dated 12.1.2004, which clearly indicates that no IVth grade employee of work charged establishment can be adjusted on a IIIrd grade post of regular establishment. In view of this clear instruction of the department the petitioner was reverted back to the class IV post of Chaukidar by the Chief Engineer, Water Resources Department letter no. 1277 dated 19.3.2004. Since the impugned order has been issued by the Chief Engineer in accordance with the rules and its clarification contained in different letters, as such there is no illegality in the impugned order. Counsel for the petitioner has produced a recent decision of this Court passed in Letter Patent Appeal No. 1400 of 2010 heard analogous with CWJC No. 4211 of 2004. In this Letters Patent Appeal in a similar circumstance appellant no.1 4 Anugrah Jha, who was initially appointed as Peon in work charged establishment under the Irrigation Department and subsequently absorbed in Class III service as Clerk was demoted by an order issued by the Executive Engineer, Flood Control Division No.1, Jhanjharpur on 11th February, 2004. The appellant was reverted back from Class III post to Class IV post. The Division Bench has discussed the Full Bench judgment passed in Durganand Jha Vs. State of Bihar ( F.B.), 2007 (4) PLJR 259, whereby the absorption of daily wage Class IV employees as Class III post in work charged establishment was held to be illegal and void ab initio. The LPA Bench had distinguished the case of Durganand Jha from the facts of the case of the appellant in LPA. The distinction was that the petitioner before the Full Bench was a daily wages employees. He was not an employee working in work charged establishment. In case of daily wages employees, the promotion to a particular post was held to be illegal. So far the appellant in the Letters Patent Appeal No. 1400 of 2010 is concerned; he was working in Class IV service in work charged establishment and was absorbed in Class III service. The LPA Bench has 5 decided that even pursuant to circular dated 19th February, 1981 and the clarification dated 2nd April, 1983 was not the subject matter of interpretation before the Full Bench. The finding recorded by the Letters Patent Bench is as follows:- “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.” Counsel appearing for the petitioner submits that besides the decision of the Letter Patent Bench in the similar facts as that of the petitioner the Water Resources Department, Dehri s 6 also in compliance of the direction of this Court passed order in favour of the petitioners of CWJC No. 10366 of 2003 and CWJC No. 6952 of 2004 in case of this petitioner also order of reversion had been passed which was though dismissed in the writ petition but finally the Supreme Court decided the matter in their favour and in compliance of the decision of the Supreme Court the reversion order was cancelled with effect from the date of its issuance and the petitioners were given all consequential benefits on account of their promotion on Class III post, despite the fact that by that time they have already retired. The order issued under the signature of Chief Engineer has been annexed by the petitioner as Annexure-8 to the writ application. Counsel appearing for the State- Respondent though in their counter affidavit had taken some different stands but considering the fact that in Letters Patent Appeal this Court has decided in favour of the appellant of that appeal whose case stand on a similar footing as that of the petitioner of the writ application, has not raised any objection. In facts and circumstances of the case the order of reversion issued by the Chief Engineer, 7 Water Resources Department, Dehri contained in Memo No. 1277 dated 19.3.2004 is quashed with effect from the date of its issuance. The respondents are directed to allow all consequential benefits to the petitioner, for which he would have been entitled on account of his absorption/promotion in Class III post of Correspondence Clerk on account of his promotion on that post under the orders of the competent authority. The compliance of this order must be made by the respondent within a period of three months from the date of production/communication of this order. As informed by the petitioner’s counsel the petitioner has retired in July, 2005. Accordingly the respondents will allow all consequential benefits to the petitioner which also include the pension and pensionary benefits of the petitioner. Akumar ( Mridula Mishra, J.)