BHUP NARAYAN JHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) DOES Rule 49A of the Bihar Civil Services (Classification, Control and Appeal) Rules, 1930, suffer from the vice of arbitrariness and is consequently violative of Article 14 of the Constitution? Who is the appointing authority of the members of the Bihar Engineering Service Class -I - The Governor or the Council of Ministers? This is the twin question which necessitates this reference to the Full Bench. Equally at issue is the correctness of view of the Division Bench in the case of Bachcho Lal Das V/s. State of Bihar,

(2.) SHORN of surplusages, the writ petitioner, Sri Narayan Jha, an Executive Engineer in the Department of Irrigation, Bihar, assails the order of his suspension in Annexture; 9, dated 29th of August, 1983 passed, admitted under Rule 49A of the Bihar Civil Services (Classifications, Control and Appeal) Rules, 1930 (hereinafter referred to as the Rules). It is first challenged on the ground of the very constitutionality of the said rule and, in the alternative, that the same is not in consonance therewith in so far as it has not been passed by the appointing authority, which is claimed to be the Council of Ministers itself.

(3.) DESPITE the somewhat voluminous pleadings, the facts giving rise to the basic issue can be noticed with relative brevity. The petitioner joined service as an Assistant Engineer in 1964 and was promoted as an Executive Engineer on the 7th September, 1979, and posted in the Flood Control Division, Thakarha, in Gopalganj. He worked in the said capacity till the 15th April, 1983. He was transferred to Purnea as Executive Engineer in the Master Planning Investigation Division. It emerges from the pleadings that Piprasi -Pipraghat embankment on the right bank of river Gandak is jointly maintained by the States of Bihar and Uttar Pradesh to control the sporadic floods in river Gandak. The total length of the Piprasi -Pipraghat embankment in the State of Bihar itself is about 41.60 kilometers and it is the petitioners claim that almost every year the floods in the Gandak pose problems of inundation of large areas, and protection of the said embankment, which has to be tackled as one of emergency, and, to use the language of the petitioner, on a war footing. It has been averred that in the third week of June, 1982; the Superintending Engineer directed the petitioner to construct some spurs when the water level in Gandak had already started rising and thus leaving no sufficient time to execute the work. Nevertheless, the petitioner had to manage by taking great pains and could get the spurs erected on the embankment despite the monsoon having already started with its consequent heavy erosion. It is the petitioners case that indeed he had requested to be relieved from the onerous duty of his charge on the Piprasi -Pipraghat embankment because he was anticipating that there would be havoc in the coming rainy season, but this request of his was declined by the authorities. It is then averred that on the 24th July, 1982, the aforesaid embankment eroded at 28.75 kilometers and the field officials, including the petitioner, took emergency measures on war footing to save the embankment as also the lives and properties of lakhs of persons who were in danger thereby. It is the petitioners claim that whatever he had done and the inordinately heavy expenses which he had incurred were at the behest of his superior officers. However, apparently under a cloud, the writ petitioner was transferred, vide notification dated the 8th April, 1983, to Purnea and he handed over charge on the 15th April, 1983. It is then the petitioners case that he was surprised to learn from a press report in the daily newspaper, The Searchlight that he had been suspended by the Government on the ground of certain grave irregularities having taken place with regard to Piprasi -Pipraghat embankment. Subsequently the order of suspension dated the 29th August, 1983 (Annexure 9), was passed by the Governor by which the writ petitioner is primarily aggrieved. Apart from the averments in the writ petition itself, supplementary affidavits were filed both, to add to the factual matrix as also to the grounds for challenging the impugned order of suspension.