Partha Sarthy, J. – Heard Mr. Shiv Kumar, learned counsel for the petitioner and Mr. P.K.Verma, learned Additional Advocate General-3 for the State of Bihar.

2. The petitioner has filed the instant application for quashing the order dated 8.10.2012 passed by the Principal Secretary, Public Health Engineering Department (PHED), Government of Bihar whereby as a result of lack of available post, the prayer of the petitioner for absorption/regularisation of his service on the post of Electrician was rejected. It has been prayed that the respondents be directed to absorb/regularise the service of the petitioner on the post of Electrician w.e.f. 30.11.2006 and to give benefit of Assured Career Progression (ACP) scheme to the petitioner as has been given to similarly situated persons including those junior to him.

3. The case of the petitioner in brief is that he was appointed on 1.6.1980 as a daily wage worker in the PHED on the post of Pump Operator. By order dated 14.3.1988, he was absorbed under the work charge establishment w.e.f. 13.1.1988. Pursuant to the decision taken by the Establishment Committee in its meeting held on 17.12.1996, the petitioner was appointed as Electrician and posted in the Public Health Mechanical Sub Division, Pupri in the district of Sitamarhi.

4. It is further case of the petitioner that he was served with a show cause notice dated 13.4.2002 asking him as to why he not be reverted back as a daily wage worker from work charge establishment. The petitioner moved the Patna High Court against the said notice in CWJC no.6370 of 2002 wherein this Court was pleased to pass an interim order dated 22.5.2002 directing the respondents to file their counter affidavit and further ordered that in the meantime, no coercive action shall be taken against the petitioner.

5. It is further case of the petitioner that inspite of the interim order of this Court dated 22.5.2002, the respondents came out with an order dated 22.8.2002 reverting the petitioner as daily wage worker w.e.f. 1.6.2002.

6. It is the case of the petitioner that in response to a letter from the department, the Executive Engineer, Public Health Mechanical Division, Muzaffarpur furnished details of altogether 130 persons, the list having been brought on record as Annexure-6 to the writ application. While the name of the petitioner figures at Sl. no.45, the name of Hari Kumar Patel is at Sl. no.66.

7. By order dated 30.11.2006, issued under the signature of the Executive Engineer, PHED, Muzaffarpur, the petitioner was absorbed/regularised on the post of Pump Operator in the pay scale of Rs.2,650-4,000, however, a perusal of the said letter would show that it was specifically mentioned therein that the petitioner would continue to perform his work which he had been performing till then.

8. It is the case of the petitioner that he had been performing the work of an Electrician and thus having wrongly been regularised on the post of Pump Operator, the petitioner moved this Court in CWJC no.6004 of 2007 which was disposed of by order dated 20.12.2011 directing the Chief Engineer, PHED, Patna to consider the case of the petitioner in light of the submission made by the learned Additional Advocate General-II before the Division Bench on 10.5.2006. Pursuant to the aforesaid direction of this Court contained in order dated 20.12.2011, the respondents considered the case of the petitioner and by the impugned order dated 8.10.2012 rejected the prayer of the petitioner for his absorption on the post of Electrician for the reason of non-availability of post. It is against this order that the instant writ application has been preferred.

9. It is submitted by learned counsel appearing for the petitioner that ever since his appointment in the year 1980, the petitioner has been performing the duty of an Electrician which would also be evident from the order dated 31.12.1996 taken out pursuant to the meeting of the Establishment Committee held on 17.12.1996. It is further submit