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1997 DIGILAW 877 (PAT)

Kapildeo Thakur v. State of Bihar

1997-12-09

ASOK KUMAR GANGULY

body1997
ORDER 1. Heard learned counsel for the parties. 2. This writ petition has been filed against an order which is at Annexure- 4. By the said order dated 24.8.1996 passed after the retirement of the petitioner in the month of July, 1996, the first time bound and 2nd time bound promotion granted to the petitioner were cancelled on the ground that according to the Government circular contained in letter dated 13.2.1995 the promotion given after 1.8.1983 cannot be allowed to continue in view of the fact that the petitioner did not pass the departmental Accounts examination. The petitioner has retired and the petitioner has not received anything by way of retirement benefit in view of the said order. It goes without saying that as a result of the cancellation of the petitioner's promotion order, the petitioner's pay is sought to be reduced and the amount paid to the petitioner in view of the provisional promotional order was sought to be recovered. 3. In view of the passing of the impugned order the petitioner has suffered civil consequences and it prejudices the petitioner financially. This Court does not want to make any pronouncement on the merits of the order but there is one thing which is known as procedural fairness in the government administration. Such fairness demands that before any order is passed to the prejudice of a person affecting the person financially, the person effected must be given an opportunity to record his say in the matter. This is requirement of the fundamental principles of natural justice which have been termed as fair play in action. In the instant case the said principles have been totally breached. 4. Learned counsel for the respondents State submits that the promotional orders of the petitioner were provisional orders and contained stipulation that if such orders are ultimately found to be illegal, the amount received as a result of such promotion may be recovered. But such promotional order was passed in the year 1989 and the petitioner retired in the month of July, 1996. Therefore, for all these seven years or more the said provisional orders are allowed to stand and once the petitioner is allowed to retire, it cannot be said that those orders will be treated as provisional orders. 5. In that view of the matter, this Court is unable to appreciate the submission made by the learned counsel for the respondents. Therefore, for all these seven years or more the said provisional orders are allowed to stand and once the petitioner is allowed to retire, it cannot be said that those orders will be treated as provisional orders. 5. In that view of the matter, this Court is unable to appreciate the submission made by the learned counsel for the respondents. I n the facts and circumstances of the case show cause is necessary. However, this Court quashes the impugned order at Annexure-4 but gives liberty to the respondents to issue, if they are so advised, a show cause notice to the petitioner within a period of four weeks from the date of receipt/communication of a copy of the order asking the petitioner to show cause why the order as made in Annexure-4 should not be passed against him. The petitioner on receipt of the said show cause notice must give his reply within a period of four weeks from the date of receipt of the said show cause notice and thereafter the respondents authorities are to pass a final order in accordance with law within a period of six weeks from the date of receipt of the said reply of the petitioner. If the petitioner does not give any reply within the period as aforesaid, the respondents authorities are at liberty to pass final order without waiting for the reply of the petitioner any further. 6. It is made clear that I have not gone into the merits of the case except deciding the question that the impugned order is procedurally illegal. 7. With the above observation/direction, this writ petition is disposed of. There will be no order as to cost.