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1996 DIGILAW 450 (PAT)

Arun Kumar Sinha v. State of Bihar

1996-07-23

SUDHANSU JYOTI MUKHOPADHAYA

body1996
Judgment S.J. Mukhopadhaya, J. The petitioner has challenged the order dated 1.12.95, by which the respondent Civil Surgeon cum Chief Medical Officer, Dhanbad has cancelled the promotion of the petitioner to the post of clerk, earlier granted by one order dated 21.12.82. 2. The brief facts of the case show that the petitioner was initially appointed as a Compounder under the respondents in its Health Department by one order dated 6.12.1970. The post of Compounder is a class-III post. While so functioning, the petitioner passed accounts examination which was meant for clerk, in between the year 1977-78. Subsequently, the respondent-Civil Surgeon-cum-Chief Medical Officer promoted the petitioner to the next higher post of clerk by one order dated 21.12.82 (Annexure-4). The petitioner was also granted selection grade scale of the post of clerk by one order dated 5.10.91. 3. It was in the year 1995 that is after 13 years of promotion of the petitioner to the post of clerk, he was given a show-cause notice by letter dated 9.11.95 (Annexure-6). The petitioner was intimated that he being initially appointed as a Compounder, he was illegally converted to the post of clerk, by order dated 21.12.82. Petitioner submitted reply to the same denying the allegation. It is only thereafter the respondents have come out with the impugned order dated 19.12.95 (Annexure-7) cancelling the order dated 21.12.82 reverting the petitioner to the post of Compounder. 4. In the impugned order dated 19.12.95, it has been mentioned that the petitioner was illegally appointed/posted/ upgraded/promoted to the post of clerk and now the order dated 21.12.82 has been cancelled. 5. The main submission that has been made on behalf of the petitioner is that the petitioner having continued against the post of clerk for a long period of about 13 years, the respondents should not have cancelled the order of appointment of petitioner to the post of clerk made vide order dated 21.12.82. The counsel for the petitioner in this connection relied on unreported decision of this Court in the case of Rajeshwar Prasad Gope vs. State of Bihar in C.W.J.C. No. 328 of 1996 (R) decided on 20.5.96. He also relied on the decision of the Supreme Court in the case of Narender Chadha and others vs. The Union of India and others reported in A.I.R. 1986 Supreme Court 638. 6. He also relied on the decision of the Supreme Court in the case of Narender Chadha and others vs. The Union of India and others reported in A.I.R. 1986 Supreme Court 638. 6. The stand of the respondents in the counter-affidavit is that the post of clerk is not a promotional post of Compounder. The post of compounder being the technical post there was no occasion to promote the petitioner from the post of compounder to the post of clerk. So the order of promotion which was issued in favour of the petitioner on 21.12.82 having been issued illegally, the same was cancelled. According to the State, the petitioner while functioning as a compounder was not eligible to appear in the accounts examination, but was illegally allowed and passed the same in the year 1977-78. Therefore, the petitioner cannot derive any benefit of such passing of accounts examination. 7. So far as stand of the respondent-State that the post of clerk is not a promotional post of Compounder is concerned, the same has got no substance. However, it is to be taken into note that the post of clerk available in different Muffail offices under State are filled up by two modes, namely, (A) 75% by direct recruitment from outsiders (now 50%) and (B) 25% by appointment limited amongst the class-IV employees like peon (now 50%). 8. From the aforesaid fact, it is evident that even class-IV employee like peon is also entitled for appointment against higher post of clerk. Such being the position, I do not understand as to how a class-III employee, who is holding a post higher in rank of class-IV but lower in rank than other class-III post of clerk can be deprived of the right for appointment to the post of clerk. Therefore though the petitioner could not have been promoted from the post of compounder to the higher post of clerk, but he could have been appointed against the reserve post of clerk meant for lower grade employees of the department. 9. In the present case, the petitioner was appointed to the higher post of clerk as back as on 21.12.82 and performed his duty for about 13 years. It is not disputed that the appointment of the petitioner was so made by the competent authority. The petitioner has passed the accounts examination. 9. In the present case, the petitioner was appointed to the higher post of clerk as back as on 21.12.82 and performed his duty for about 13 years. It is not disputed that the appointment of the petitioner was so made by the competent authority. The petitioner has passed the accounts examination. The reversion of the petitioner is not because of his unsatisfactory performance to the post of clerk. The only allegation is that the appointment was made by way of promotion to the post of clerk which was not permisible. 10. In the case of Narender Chadha (supra), the Supreme Court held as follows:- “.....But in a case of the kind before us where persons have been allowed to function in higher posts for 15 to 20 years with due deliberation it would be certainly unjust to hold that they have no sort of claim to such posts and could be reverted unceremoniously or treated as persons not belonging to the service at all particularly where the Government is endowed with the power to relax the Rules to avoid unjust results...” In the case of Rajeshwar Prasad Gope (supra) this Court has also taken into note the aforesaid decision of Supreme Court and another decision of Division Bench of this Court in the following terms :- “....Such delay on the part of the Government has been deprecated by the Apex Court as reported in The State of Madhya Pradesh vs. Bani Singh and another (S.C. 1990 page 1308) and Narender Chadha and others vs. Union of India and others (S.C. 1986 page 638). A division Bench of this Court has also held in C.W.J.C. No. 1496/95 (R) that quashing of appointment on jurisdictional ground made about 15 years ago is held to be not only misconceived, but illegal as by afflux of time, right has been accrued to the incumbent in that post even if his initial appointment was not regular...” 11. In the present case of the petitioner, he having worked for about 13 years against the post of clerk, even if the order dated 21.12.82 has been termed as order of promotion, the respondents should not have reverted the petitioner but could have treated the said order dated 21.12.82 as an order of appointment against the quota meant for lower grade employees of the department. 12. 12. Further, it will be evident from the Show-cause notice dated 9.11.95 (Annexure-6) as well as the impugned order dated 19.12.95 (Annexure-7) that even the respondents have not applied their mind. It is not known to them as to whether the petitioner was directly recruited as clerk or promoted as clerk and/or was posted. The nature of appointment is not known to the respondents. It will be evident from the fact that in the show-cause notice, it was mentioned that he was posted to the post of clerk by way of conversion. Similarly, in the impugned order of cancellation, it has been mentioned that by order dated 21.12.82 the petitioner was illegally appointed/posted/upgraded/promoted. 13. In the aforesaid background, taking into note that the petitioner is performing the duty against the post of clerk for about 13 years, I hold that the respondents should not have come out with the impugned order. The impugned order dated 19.12.95 (Annexure-7) is, accordingly, set aside. The respondents are directed to provide the petitioner with consequential benefit of the same including the arrears of salary, if any, which is to be paid by the respondents in favour of the petitioner within a period of three months from the date receipt/production of a copy of this order. The respondents will also provide the petitioner with posting as a clerk against a clear vacant post within a period of fifteen days from the date of receipt/production of a copy of this order. 14. The writ petition is allowed, with the aforementioned observations/directions.