CIVIL WRIT JURISDICTION CASE No.12941 OF 1996 In the matter of an application under Article 226 of the Constitution of India. 1. DAYA NAND JHA, Son of Late Pt. Bhairab Jha, residents of village Haripur, Police Station and P.O. Ghurna Bazar, Anchal Narpatganj, District- Araria. 2. Indra Narayan Lal Deo, Son of Late Parmeshwar Lal Deo, resident of Ward No. 2, Birpur, P.S. Birpur, District- Supaul Both working as Engineer Assistants in Western Kosi Canal Division No. 1, Rajbiraj Camp, Jai Nagar, District- Madhubani--------- Petitioners Versus 1. THE STATE OF BIHAR. 2. The Secretary-cum-Commissioner, Department of Irrigation, Govt. of Bihar, Patna. 3. The Joint Secretary, Department of Irrigation, Govt. of Bihar, Patna. 4. The Under Secretary, Department of Irrigation, Govt. of Bihar, Patna. 5. The Chief Engineer, Kosi Project, Darbhanga. 6. The Superintending Engineer, Western Kosi Canal, Circle II, Birpur Camp, Jai Nagar, Police Station Jai Nagar, District- Madhubani. 7. The Executive Engineer, Western Kosi Canal Division, 1, Rajbiraj Camp. Jai Nagar, P.S. Jai Nagar, District- Madhubani 8. The Bihar Public Service Commission, Baily Road, Patna. ----------- Respondents For The Petitioner :Mr. Chitranjan Sinha, Sr. Advocate Mr. Balraj Kishore, Advocate Mr. C.B. Das, Advocate For The Respondent :Mr. J.P. Karn, A.A.G. IX For B.P.S.C.: Mr. D. K. Sinha, Sr. Advocate Mr. Arvind Kr. Singh No. 1, Advocate P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A. Khan, J. The petitioners are Nepali citizens seeking a direction from this Court for absorption on the post of Assistant Engineer. 2. Although these petitioners were appointed as Engineer Assistant under the Nepali quota by the Chief Engineer, Kosi, Department of Irrigation, Govt. of Bihar, Patna vide letter no. 2 573 dated 24.1.1976. Subsequently, the post of Engineer Assistant was abolished. 3. It would be relevant to point out the terms of appointments of the two petitioners. It has been stated that the petitioners would remain in service until the completion of the Kosi Project. The petitioners were also given liberty to join with the Nepal Government if they so desired. The appointment of the petitioners would stand terminated after the completion of works in the Kosi Project. 4. The petitioners thereafter having worked for several years applied for absorption/promotion to the post of Assistant Engineer. In this context, it would be relevant to refer to annexure-5 which is dated 21.3.1990 for the purpose of highlighting certain facts. From annexure-5, it is evident that those persons appointed in the Kosi Project on non-technical posts have been absorbed by the State Government on permanent basis. It is also evident that the Chief Engineer has referred to the agreement between the two countries and has stated that “The India side further stated that there is no discrimination as such between the Nepalese 3 Nationals and Indian Nationals employed in the similar jobs in the Projects.” on the basis of the meeting between the two countries and extract of agreement referred to aforesaid, the case of the petitioner was sent to the State Government for consideration. A counter affidavit has been filed by the Under Secretary, Water Resources Department on behalf of respondent no. 2 in which it has been stated at paragraph 7 which reads as follows: That it is stated that on 17.8.1973 the State Govt. announced their decision to abolish the cadre of Engineer Assistant and later they decided that all Engineer Assistants should be absorbed as Assistant Engineer in three and six half yearly phase on pro-rata basis. Later, the Government in planning Department issued detailed instruction vide their Development Commissioner memo no. 401 of 74 dated 22.4.1974 for absorption of Engineer Assistants to the post of Assistant Engineer. Para 2(ii) of this Government circular clearly says that “against such converted posts of Assistant Engineer only those Engineer Assistants would be appointed who were in the cadre on 31.12.1973. Clearly this order prohibit absorption of those Engineer Assistants to the post of Assistant Engineer who came to the Engineer Assistant Cadre in the year 1976 i.e. much after the cut-off date for absorption thus they did not come under purview of consideration, petitioners’ appointment as Engineer Assistant much after abolition of this posts, itself indicates that they were taken in service for a 4 particular time and scheme. Due to various reasons, services of the petitioners were not terminated and they remained in service even after completion of the scheme in 1985 for which they were enlisted. Till that time, pay scales of the Bihar Government employees were revised and there were no scale of pay for the Engineer Assistant post due to its abolition. Seeing the pitiful condition of the petitioners the Government sympathetically considered the case of the petitioners and requested twice the Bihar Public Service Commission for approval of the proposal of absorption of the petitioners to the post of Assistant Engineer in D.P.C. meeting. But the Bihar Public Service Commission, Vide letter no. 110 dated 18.4.1994 turned down the proposal after consideration. 5. The recommendation was obviously under some mistaken believe that the petitioners were to be promoted only after recommendation of the Bihar Public Service Commission although this was a matter that could only be decided by the Government itself. It is not a case of direct appointment so as to warrant the interference of the B.P.S.C. for the purpose of promoting/absorbing the petitioners in service in India. The recommendation of the B.P.S.C. which is annexed as annexure-A is a non speaking order assigning no reason for rejecting the recommendation of the Water Resources Department. 5 Again by letter no. 2576 dated 23.11.1994 a proposal was sent to the B.P.S.C. for absorption of the petitioners to the post of Assistant Engineer. This exercise was again repeated vide letter no. 845 dated 4.3.1997. All the proposals met with the same fate i.e. the case for promotion/absorption of the petitioners to the post of Assistant Engineer was rejected. 6. Learned counsel for the petitioner submits that one Anil Kumar Singh was absorbed as Assistant Engineer. In reply thereto, it has been stated that when the post of Engineer Assistant was dissolved there was stipulation that all persons who were appointed in 1973 on the post of Engineer Assistant would be absorbed and treated to be Assistant Engineers. 7. Whatever be the position, in my opinion, it is only the State Government who is the competent authority to take a decision on this issue after taking into consideration the length of service of the petitioners and the fact that there is an agreement between India and Nepal with respect to several issues including the issues of employment of Nepali citizens in India and in particular with respect to the work 6 to be done on the Kosi Project. The matter is thus referred to the Principal Secretary, Water Resources Department who may consult the Chief Secretary or whoever he thinks fit and proper and a decision may be taken in this regard within a period of three months from the date of receipt/production of a copy of this order. The petitioners may file a detailed representation before the Principal Secretary, Water Resources Department bringing to the notice of the Principal Secretary all relevant documents which may help the Principal Secretary to decide this issue. I may clarify that the petitioner no. 1 has retired during this pendency of this writ application. However, if the State Government takes a decision in favour of the petitioners, the petitioners would be entitled to the monetary benefits which may accrue to them as a result of the decision of the State Government. This writ application is disposed of with the aforesaid directions. Patna High Court, November, 26th, 2008 Sanjay/A.F.R. (Sheema Ali Khan, J.)