ORAL ORDER By these three writ petitions, four petitioners, namely, Amar Nath Singh, Janardan Prasad Singh, Raghubansh Kunwar and Bhubaneshwar Prasad Singh have prayed for their regularization/ absorption as Motor Vehicle Inspector under the Transport Department, Government of Bihar. Consequently, the communication either returning their services to the parent department or terminating their services in the Transport Department is under challenge. 2. The facts are not in dispute. 3. Pleadings being complete, with the consent of the parties these writ petitions are being disposed of at this stage itself. 4. So far as petitioners- Amar Nath Singh and Janardan Prasad Singh are concerned, they were permanent employees of the Bihar State Agro Industries Development Corporation, a Government of Bihar undertaking. So far as petitioners Rabhubansh Kunwar and Bhubneshwar Prasad Singh are concerned, they were permanent employees of the Bihar State Co-operative Marketing Union. It appears that the Bihar State Agro Industries Development Corporation went into financial crisis and virtually became defunct. Thus, there was necessity to either retrench all permanent employees or find another suitable replacement for them. The State Government accordingly issued Circular no.103, dated 24.5.1984, under the signature of the Chief Secretary, directing all the government departments to stop direct recruitment and see that the permanent employees of the Bihar State Agro Industries Development Corporation could be adjusted on those posts permanently. It is pursuant to the aforesaid decision that the petitioner- Amar Nath Singh and Janardan Prasad Singh, who had technical qualification were recommended for deputation to Transport Department for their absorption therein in the year 1991/1994. Finding that they were technically qualified and there were vacant sanctioned posts of Motor Vehicle Inspector in the Transport Department, these two were duly notified as Motor Vehicle Inspector by the State Government and posted as such immediately. 5. It appears that simultaneously BISCOMAUN of which the other two petitioners i.e. Raghubansh Kunwar and Bhubaneshwar Prasad Singh were permanent employees, also went into severe financial crisis. The option was to retrench the staff or absorb them in other State Corporation/Department. It is not in dispute that by this time several State Corporations had become financial defunct with a large number of permanent employees. The option was to retrench the staff or absorb them in other State Corporation/Department. It is not in dispute that by this time several State Corporations had become financial defunct with a large number of permanent employees. It appears that at governmental level, a decision was taken that similar to Bihar Agro Industry Development Corporation and its employees, other employees of such Corporation/Institutions should also be absorbed on sanctioned vacant posts in other government department. Accordingly, in the year 1994, these two petitioners i.e. Raghubansh Kunwar and Bhubaneshwar Prasad Singh, who were permanent employees in BISCOMAUN were deputed to the Transport Department and they being technically qualified were then notified as Motor Vehicle Inspector by the State Government and posted as such. 6. Thus, it would be seen that all the four petitioners were brought into Transport Department, Govt. of Bihar, for their permanent absorption therein and pending the same all four of them were notified by the State Government as Motor Vehicle Inspector as they had requisite qualification and there were vacant sanctioned posts available for appointment. 7. They continued to work as such. Thus, seen the cases of all the four petitioners are same or similar. 8. This Court would deal in detail with the case of Amar Nath Singh as an illustrative case, the result of which would apply to the other three petitioners as well. There is one exception. This is in regard to petitioner Raghubansh Kunwar, who for certain dereliction was made an accused in a criminal case, which is pending. Simultaneously, a departmental proceeding was started in which he has been ordered to be dismissed, which order has attained finality in view of challenge to dismissal having failed before this Court. 9. It is stated on behalf of the petitioner that as the challenge has failed recently before this Court, the petitioner intends to move the Apex Court in the matter. 10. It is submitted on behalf of this petitioner that in case the challenge succeeds or he is acquitted in the criminal case, he would be liable to be re-instated and as such legal position in his regard be decided, which would take effect as and when occasion arises. 11. It is not disputed by the parties that the legal postiion as would be obtained in the case of petitioner- Amar Nath Singh would equally apply to the rest. 12. 11. It is not disputed by the parties that the legal postiion as would be obtained in the case of petitioner- Amar Nath Singh would equally apply to the rest. 12. It appears that having been notified, the petitioner- Amar Nath Singh, as stated above, the Transport Department decided all of a sudden to cancel the deputation of Amar Nath Singh and send him back to the Bihar State Agro Industries Development Corporation on 18.12.1993.This was challenged by Amar Nath Singh before this Court in CWJC No.3513 of 1994, which was ultimately heard and disposed of by Justice A.K.Ganguly by judgment and order dated 12th September, 1997. This Court in the judgment held, inter alia, that repatriation or transfer back of the petitioner to the Corporation would mean to his dismissal from his service. This Court further held that, in fact, the petitioner was brought from the Corporation to the Transport Department not merely on simple deputation but with the object of permanently absorbing him in the Transport Department. The petitioners had virtually been rendered surplus in the Corporation and had to be adjusted else where. Thus, this Court held that it was not a case of simplicitor deputation where the services could be returned rather it was the obligation on the State to permanently absorb the petitioners. The Court also noticed that the petitioners had already been notified as a Motor Vehicle Inspector having due qualification and posted on substantive vacant posts. The matter was taken up by the State to the intra court appeal without success and to the Apex Court without success. This judgment attained finality but as is usual, the State does not easily accept the verdict of the Court. The petitioner was not being absorbed, he was forced to file yet another writ petition before this Court for his absorption. This was CWJC No.2471 of 1998, which was ultimately heard and disposed of by judgment and order dated 12.2.2004 by Narayan Rai,J. This Court having considered the litigations, the facts and circumstances directed that the petitioner should be forthwith regularized as a Motor Vehicle Inspector. Steps should be taken to get concurrence from Bihar Public Service Commission for the said absorption according to the rules as framed by the Transport Department and fixed six months period for the aforesaid matter. Again as usual in the State, things did not move. Steps should be taken to get concurrence from Bihar Public Service Commission for the said absorption according to the rules as framed by the Transport Department and fixed six months period for the aforesaid matter. Again as usual in the State, things did not move. The petitioner was then forced to file a contempt application before this Court being MJC No.1885 of 2005. It appears that in the mean time, the cases of the petitioners were referred to Bihar Public Service Commission for concurrence for their appointment as Motor Vehicle Inspectors. This was done under letter dated 14.12.2005 of the Commissioner-cum-Secretary, Department of Transport and the State Transport Commissioner, Bihar to the Bihar Public Service Commission. This letter contained a “self contained notes” of the Commissioner-cum-Secretary in relation to all the four petitioners. If one goes through the said “self contained notes” for the Bihar Public Service Commission as sent by the Commissioner-cum-Secretary, Transport Department, the entire chronological event is duly noted therein including their entitlement to be absorbed as such. All aspects including reservation have been considered. No dispute or fact was raised in regard to the status of the petitioners. What remained was merely a concurrence from Bihar Public Service Commission. It appears that when the recommendation was received by Bihar Public Service Commission, it returned the recommendation with a small note. It is stated that as the post was not a gazetted post, it was not Bihar Public Service Commission but the Staff Selection Commission, which had the jurisdiction in the matter. Thus, the concurrence, as sought for by the Transport Department in relation to the four petitioners, was not granted by the Bihar Public Service Commission rather the matter was returned to the department to be sent to the Staff Selection Commission. It is at this stage that the contempt petition was taken up and finally disposed of. This Court clearly directed that the Transport Department should re-send the same recommendation as was sent to Bihar Public Service Commission to the Staff Selection Commission for their concurrence. Again one would have expected that the matter would have been thus resent but as usual in the State, a mischief was again played by the Transport Department. This Court clearly directed that the Transport Department should re-send the same recommendation as was sent to Bihar Public Service Commission to the Staff Selection Commission for their concurrence. Again one would have expected that the matter would have been thus resent but as usual in the State, a mischief was again played by the Transport Department. Instead of sending the same recommendation, as was sent to the Bihar Public Service Commission as was directed in the contempt proceeding, this time while sending the recommendation to the Staff Selection Commission a new twist was given. Firstly, only the name of petitioner- Amar Nath Singh was recommended and the recommendation was sought to be made in terms of the Bihar State Transport Technical Cadre Rules, 2003, which had came into force by then. Why this Court uses the expression „mischief? is if one refers to the “self contained notes” of the Commissioner-cum-Secretary, Department of Transport to the Bihar Public Service Commission, one would see that all aspects of the matter had been considered and the recommendation was being made in the year 2005 by when this 2003 Rules came into force, still consciously the recommendation was made in terms of position as existed prior to the Rules of 2003.This was so because the rights of the petitioners to be absorbed had crystallized much much earlier. In their notifications issued in 1991/1994 itself it was stated that concurrence should be taken from Bihar Public Service Commission. It was because of inaction on the part of the State authority that the matter had been kept pending forcing the petitioners to come before this Court again and again. Had the State acted immediately and efficiently, all the petitioners would have long been absorbed permanently as Motor Vehicle Inspectors before 2003 Rules came into force. There were no laches of any kind on the part of the petitioners. It was the State that had to be awoken from deep slumber time and again. This time when the matter reached Staff Selection Commission, in view of the provisions of 2003 Rules, it returned the recommendation clearly stating that as per 2003 Rules, the posts of Motor Vehicle Inspectors would only be filled up by direct recruitment. It was the State that had to be awoken from deep slumber time and again. This time when the matter reached Staff Selection Commission, in view of the provisions of 2003 Rules, it returned the recommendation clearly stating that as per 2003 Rules, the posts of Motor Vehicle Inspectors would only be filled up by direct recruitment. However, while returning the same to the department, it points out that as per Rule 21(c) read with rule 24 of 2003 Rules, the State Government could relax the rules and permit continuance of the petitioners till permanent employees are made and in the mean time in view of relaxation of rules, permanently absorb the petitioners. Thus, while closing the door for grant of concurrence the Staff Selection Commission opened the window for their entry. Thus seen two situations arise. One as the stand is taken by the Commissioner-cum-Secretary, Department of Transport that the rights had crystallized prior to 2003 Rules, they must be considered accordingly without reference to 2003 Rules for the purposes of their absorption and secondly even if 2003 Rules are held to be applicable then in terms of rule 21(c) read with rule 24, the State Government had ample power to relax the rule and see that the petitioners are absorbed as was the very object from the very inception. 13. Again as is usual in the State in either of the two contingencies, the petitioners should have been absorbed. If 2003 Rules were not to be applied as was the stand of the Transport Commissioner-cum-Secretary, Department of Transport then the Staff Selection Commission itself ought to have granted concurrence or if the 2003 Rules were to apply then the State should have absorbed them having already been notified and worked as Motor Vehicle Inspector for over a decade, the State had necessary power under Rule 21(c) read with Rule 24 of 2003 rules to relax the conditions and direct their absorption. But that was not to be. Their deputations were cancelled once again which is now challenged. 14. On behalf of the petitioners, it is submitted that so far as second part is concerned, it was the duty of the State in case the first part did not apply to exercise its jurisdiction in the matter. But that was not to be. Their deputations were cancelled once again which is now challenged. 14. On behalf of the petitioners, it is submitted that so far as second part is concerned, it was the duty of the State in case the first part did not apply to exercise its jurisdiction in the matter. At this stage in fairness to learned Additional Advocate General appearing for the State I must take note of his stand on behalf of the State. There is a counter affidavit filed by Deputy Transport Secretary in which the stand has been taken that once 2003 Rules came into force, the petitioners’ case could not be considered ignoring them. The stand is in the teeth of the stand taken by the Secretary-cum- Transport Commissioner, Govt. of Bihar while recommending the matter to the Bihar Public Service Commission in which in the year 2005 he was clearly of the opinion that as the cases of the petitioners had crystallized before 2003 Rules as such 2003 Rules could not be applied. 15. Mr. Tej Bahadur Singh, learned AAG relies on a judgment of the Apex Court in the case of Deepak Agarwal & anr.-v-State of Uttar Pradesh & ors. since reported in(2011)6 Supreme Court Cases 725 for the proposition that the Rules as obtaining on the date of consideration shall apply. He also relies upon the observation of this Court made in the 2nd writ petition whereby this Court directed that the petitioner should be absorbed as per rules of the Transport Department. The petitioners point out that considering all aspects of the matter, ultimately in view of contempt proceeding this Court clearly directed that the recommendation as was made to the Bihar Public Service Commission must be made to the Staff Selection Commission. Meaning thereby that the recommendation, as contained in the “self contained notes”, be reiterated to the Staff Selection Commission. Thus, the recommendation as made to the Staff Selection Commission giving a go by to the “self contained notes” and referring to 2003 Rules was mischievous. 16. Meaning thereby that the recommendation, as contained in the “self contained notes”, be reiterated to the Staff Selection Commission. Thus, the recommendation as made to the Staff Selection Commission giving a go by to the “self contained notes” and referring to 2003 Rules was mischievous. 16. Learned counsel for the petitioners relying on the judgment of the Apex Court in the case of L.Hirday Narain- Vrs- Income Tax Officer, Bareilly since reported in AIR 1971 SC 33 and the judgment of Chief Justice Chagla in the case of All India Groundnut Syndicate Ltd.- Vrs- Commissioner of Income Tax, Bombay City since reported in AIR 1954 Bombay 232 submits that the petitioner’s right had crystallized much before 2003 Rules. They had to be considered according to the position that obtains when the right had crystallized for absorption. They had moved this Court much prior 2003 Rules. The Commissioner-cum-Secretary, Transport Department also having taken a stand that their right has to be considered as per position obtaining prior to 2003 Rules, State is now precluded from taking any contrary stand. It is further submitted that in any event if it be held 2003 Rules applied, then it becomes the duty of the State to act and exercise its jurisdiction in accordance with Rule 21(c) read with Rule 24 of 2003 Rules and relax the condition to enable the petitioners permanent absorption. It is further pointed out that we must not lose sight of the fact that the petitioners had been notified by the State Government as Motor Vehicle Inspectors, way back 1991 (Amar Nath Singh) and 1994 (in respect of other three). In the said notification itself it was mentioned at that time itself that concurrence of Bihar Public Service Commission may be taken. They had been working as such all along for almost a decade prior to 2003 Rules. State had without reason delayed the matter. They could not now be held to be unqualified and thrown out. 17. Having considered the matter, in my view, the contention as raised on behalf of the State by learned AAG cannot be sustained. Firstly, State cannot take stand contrary to what was taken by the Commissioner-cum-Secretary, Transport Department while making recommendation to the Bihar Public Service Commission. It cannot take the stand contrary to the observation of this Court while disposing of the contempt application. Firstly, State cannot take stand contrary to what was taken by the Commissioner-cum-Secretary, Transport Department while making recommendation to the Bihar Public Service Commission. It cannot take the stand contrary to the observation of this Court while disposing of the contempt application. The other reason for not entertaining the plea of the State is that all the petitioners were brought into Transport in the year 1991/94 not merely on deputation simplicitor but for the purposes of permanent absorption therein. Considering their qualification at that time and law at that time they were duly notified as Motor Vehicle Inspectors in the year 1991/1994 by notification duly issued by the State Government in that regard. All that was required was that their cases were to be sent to Bihar Public Service Commission immediately for its concurrence. Had that been done as was required to be done in the year 1994 itself, then Bihar Public Service Commission would have had no difficulty in granting concurrence but the State refused to do what was fair and just. It forced not one but several litigations upon the petitioners. That is neither fair nor just. 18. Now coming to the judgment of the Apex Court in the case of Deepak Agrawal(supra) citied by learned AAG, for the proposition that 2003 Rules as on the date of consideration must be applied is unexceptional. The Apex Court held that as the applicant had not acquired any right for promotion, the subsequent change in Rule prior to their consideration would apply. The fact of the present case is totally different. The right of the petitioners had crystallized for absorption decade prior to 2003 Rules. The State authority slept over the matter forcing the petitioners to come to this Court. The first of the writ petitions was filed in 1994, which was disposed of with an observation that they could not be repatriated rather they have to be absorbed. The petitioners have rightly relied on what was said by Chief Justice, Chagla in the case of All India Groundnut Syndicate (supra), which is quoted hereunder: “But the most surprising contention is put forward by the Department that because their own officer failed to discharge his statutory duty, the assessee is deprived of his right which the law has given to him under sub-section (2) of S 24. In other words, the Department wants to benefit from and wants to take advantage of its own default. It is an elementary principle of law that no person - we take it that the Income-tax Department is included in that definition - can put forward his own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because “I have committed a default and the right is lost because of that default.” 19. Thus, the contention on behalf of the State cannot be accepted. 20. Alternatively, the petitioners submit that even if it be held that 2003 Rules would apply, which this Court does not so hold, then in view of the judgment of the Apex Court in the case of L.Hirday Narain (supra) there being invested by statute on the authority of the State Government to continue the appointments till fresh appointments are made by virtue of Rule 21(c) and relaxation of the rigours of the Rule by virtue of Rule 24 of 2003 Rules, it was an appropriate situation in which the State ought to have taken such action. In other words, it was the duty of the State to so act. That was also the recommendation of the Bihar Public Service Commission. This was also pointed out by the Staff Selection Commission but for the reasons best known State went into deep slumber and refused to act. In this connection I may refer what the Apex Court says in the said judgment: “If a statute invests a public officer with authority to do an act in a specified set of circumstances, it is imperative upon him to exercise his authority in a manner appropriate to the case when a party interested and having a right to apply moves in that behalf and circumstances for exercise of authority are shown to exist. Even if the words used in the statute are prima facie enabling, the Courts will readily infer a duty to exercise power which is invested in aid of enforcement of a right.” 21. There an assessee made an application to the Income Tax Officer to rectify a mistake. The Income Tax Officer did not deny the mistake but refused to exercise the power holding that the statute states that the Income Tax Officer ‘may’ rectify the mistake. There an assessee made an application to the Income Tax Officer to rectify a mistake. The Income Tax Officer did not deny the mistake but refused to exercise the power holding that the statute states that the Income Tax Officer ‘may’ rectify the mistake. The party moved Allahabad High Court to quash the order of the Income Tax Officer refusing to rectify the mistake. The writ petition was dismissed. That is how the matter came to the Apex Court. The Apex Court held that even though the statue uses the word ‘may’, there is discretion but where circumstances were shown to be explicit then that discretion become a duty and the word ‘may’ shall be read in mandatory terms. Thus seen the petitioners had right to be absorbed. This Court up to Apex Court held that the petitioner would not be repatriated. The governmental policy for absorption was there. That right could not be denied to the petitioners. 22. Here I would like to refer to the judgment of the Apex Court in the case of Ex- Capt. Harish Uppal- vrs- Union of India and another. since reported in (2003) 2 SCC 45 and in particular what their Lordship have said in para 30 of the reports, which is quoted hereunder: “...No body or authority, statutory or not, vested with powers can abstain from exercising the powers when an occasion warranting such exercise arises. Every power vested in a public authority is coupled with a duty to exercise it, when a situation calls for such exercise. The authority cannot refuse to act at its will or pleasure. It must be remembered that if such omission continues, particularly when there is an apparent threat to the administration of justice and fundamental rights of citizen i.e. the litigating public, courts will always have authority to compel or enforce the exercise of the power by the statutory authority. The courts would then be compelled to issue directions as are necessary to compel the authority to do what it should have done on its own.” 23. Thus, I hold that as was recommended by Commissioner-cum-Secretary, Transport Department, Government of Bihar in the “self contained notes” and in terms of Rule 21 (C) of the new Rules, the petitioners would continue as such i.e. Motor Vehicle Inspector till fresh appointments are made. Thus, I hold that as was recommended by Commissioner-cum-Secretary, Transport Department, Government of Bihar in the “self contained notes” and in terms of Rule 21 (C) of the new Rules, the petitioners would continue as such i.e. Motor Vehicle Inspector till fresh appointments are made. Upon contingency of fresh appointment, the State was bound to relax the Rule in terms of Rule 24 to finally absorb the petitioners. The petitioners’ absorption became due in the year 1994 itself. If we refer to the notification notifying them as Motor Vehicle Inspectors at the first instance in the year 1994 itself that would show that they were so notified by the State, subject to concurrence by the Bihar Public Service Commission. Had concurrence been obtained at that point of time from Bihar Public Service Commission it would have immediately granted the same as at that point of time even Staff Selection Commission was not in existence. 24. Thus, I direct the State Government to pass necessary orders and absorb permanently petitioners as Motor Vehicle Inspectors in the Transport Department and consequently the impugned order returning their services to the parent department by canceling deputation and the order of the department holding them to be ineligible to be appointed as Motor Vehicle Inspector in terms of 2003 Rules are quashed. State would take steps to absorb them permanently with the exception of Raghubansh Kunwar whose case would be dealt only after his dismissal from service is set aside by the court of competent jurisdiction. As two of the petitioners, namely, Amar Nath Singh and Janardan Prasad Singh have already superannuated, upon their confirmation as accordingly Motor Vehicle Inspector in the Transport Department, they would be paid their due remuneration and post retiral dues accordingly as would be in relation to other two petitioners as well. It goes without saying that their regularization would be deemed to be from due date when they were so entitled. 25. The writ petitions are thus, allowed with the aforesaid observations and directions.