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2002 DIGILAW 266 (PAT)

Ram Binod Singh v. State Of Bihar

2002-02-25

AFTAB ALAM

body2002
Judgment 1. The petitioner who is employed as an Assistant in the Samastipur Municipality and who in addition to his own duty was given the charge of Accountant on a provisional and ad hoc basis seeks to challenge an office order issued by the Special Officer, Samastipur Municipality under his memo no. 142 dated 30.1.2002 (Annexure-1). By the impugned order earlier orders giving him the charge of Accountant are cancelled and he is recalled to his substantive post of Assistant with a direction to hand over the charge of Accountant to respondent no. 5 who is described as the selected Head Clerk-cum-Accountant. 2. This case has a little history and the petitioner is before this court in the second round of litigation. Earlier by an order issued by the Special Director Samastipur Municipality under his memo no. 42, dated 7.2.1992 the petitioner in addition to his own work, was promoted to work as Accountant. It was made clear in that order that a request was made to the. Urban Development Department, Government of Bihar for sanctioning an additional post of Accountant for the Municipality and that arrangement was being made in anticipation of the sanction of the post and any material benefits for working as Accountant would be admissible to the petitioner as and when the post would be sanctioned by the State Government. No sanction for the additional post of Accountant came from the Government and the only post available in the Municipality remained that of Head Clerk-cum-Accountant. 3. On 18.6.1993 an order was issued removing the petitioner from the charge of Accountant. It was stated in that order that during the tenure of the person then holding the post of Head Clerk-cum-Accountant and the petitioner working as Accountant, financial irregularities were committed in the accounts of the Municipality and the two persons, including the present petitioner, did not even have the desired qualifications for the post of Accountant. The order directed the petitioner to hand over the charge of Accountant to respondent no. 5 who had passed B.Com and who therefore, was considered to have the desired qualification for the post of Accountant. 4. The petitioner then came to this court in C.W.J.C. No. 5804 of 1993 challenging the order dated 18.6.1993 removing him from the charge of Accountant. 5 who had passed B.Com and who therefore, was considered to have the desired qualification for the post of Accountant. 4. The petitioner then came to this court in C.W.J.C. No. 5804 of 1993 challenging the order dated 18.6.1993 removing him from the charge of Accountant. That writ petition was disposed of by judgment and order dated 20.2.2001 by which the Municipality was asked to consider the case of all eligible persons, including the petitioner and respondent no. 5, for filling up the post of Head Clerk-cum-Accountant in accordance with law. 5. It was in pursuance of the directions of this court that the order was passed asking the petitioner to hand over the charge of Accountant to respondent no. 5 who evidently has been selected for promotion as Head Clerk-cum-Cashier. 6. Mr. Aditya Prakash Sahay, learned counsel appearing in support of this writ petition spiritedly assailed the impugned order. Learned counsel submitted that respondent no. 5 was selected for promotion without any reasonable basis and the Municipality did not follow any process for selection for promotion to the post of Head Clerk-cum-Accountant. Learned counsel pointed out that the petitioner was both senior and better qualified to work as Accountant than respondent no. 5 and the petitioner ought to have been preferred for promotion as Head Clerk-cum-Accountant had the Municipality followed by reasonable process of selection. Mr. Sahay further contended that the action of the Municipality was, therefore, in violation of the earlier order passed by this court. 7. I find it difficult to accept the submissions made by Mr. Sahay which is solely based on the concluding lines of the earlier judgment passed by this court. In my view the concluding lines of the judgment cannot be read in isolation and the judgment has to be read as a whole. In the earlier round of litigation the petitioner had assailed the order dated 18.6.1993 removing him from the charge of Accountant on the grounds of violation of the principle of natural justice. It was submitted on his behalf that the order stigmatised him by saying that he was responsible for financial irregularities in the accounts of the Municipality and he also did not possess the desired qualification for working as Accountant. It was submitted on his behalf that the order stigmatised him by saying that he was responsible for financial irregularities in the accounts of the Municipality and he also did not possess the desired qualification for working as Accountant. In reply it was contended on behalf of the Municipality that by letter dated 28.8.1992 the petitioner was duly informed regarding his incompetence and meagre qualification and also about the serious anomalies in the accounts while he was in the charge of Accountant.The letter dated 28.8.1992 was made Annexure-D to the Municipalitys counter affidavit and it was further pointed out that the petitioner had not submitted any reply to that letter. 8. On the rival contentions of the parties this court in paragraph 5 of the judgment made the following observations: "This court finds substance in the submission of the learned counsel for the respondents. The very order, contained in Annexure-3, shows that in fact it was not a regular promotion, it was rather just an ad hoc promotion granted to the petitioner for holding the post of Accountant in addition to his own duty as an Assistant. However, the respondent Municipality has complied with the rules of natural justice before passing the impugned order which is based on two grounds, namely, that financial irregularities were committed during the tenure of the then Special Officer and the petitioner and that they did not possess the requisite qualification. It is not the case of the petitioner that he filed any show cause in response to Annexure-D." 9. On reading the judgment as a whole it becomes manifest and clear that the court did not interfere with the petitioners removal from the charge of Accountant for two reasons : (i) the arrangement under which he was given the charge of Accountant was provisional and ad hoc and (ii) he was found incompetent and not possessing the desired qualification to work as Accountant and this fact was duly intimated to him by the Municipality. 10. In the face of these findings the Municipality can hardly be held to be unjustified in not selecting the petitioner for promotion to the post of Head Clerk-cum-Accountant. 11. Mr. 10. In the face of these findings the Municipality can hardly be held to be unjustified in not selecting the petitioner for promotion to the post of Head Clerk-cum-Accountant. 11. Mr. Sahay strenuously argued that this court had not interfered with the earlier order of the removal from the charge of Accountant on the sole ground that the earlier arrangement was ad hoc and provisional and had accordingly directed to fill up the post on a regular basis after considering both the petitioner and respondent no. 5, apart from other eligible candidates. That, however, is not the correct position. As seen above, the court had also taken note of the fact that financial irregularities were committed during the tenure of the then Head Cierk-cum-Accountant and the present petitioner and they did not possess the desired qualification for the post of Accountant. 12. For the reasons discussed above, I see no merit in the petitioners grievances. This writ petition is accordingly dismissed.