Research › Search › Judgment

Patna High Court · body

2004 DIGILAW 1137 (PAT)

Madan Thakur v. State Of Bihar

2004-11-10

SHASHANK KR.SINGH

body2004
Judgment 1. Heard Learned counsel for the petitioner, the State and perused the counter affidavit. 2. The present application has been filed challenging the order of respondent no. 3 as contained in Annexure-1, by which petitioner has been reverted back to his original post of chainman. 3. Contention on behalf of the petitioner is that the petitioner who belongs to most backward category was initially appointed as chainman in the office of Land Acquisition Officer, Medium Irrigation, Nawadah. He passed the matriculation examination in the year 1985. He also completed his typing course in the year 1986. He has been discharging his duties as chainman with effect from 17.2.1979. The petitioner had filed an application on 4.9.86 for appointment on class-Ill post of typist before the Director, Rehabilitation and Land Acquisition. The said application was forwarded by the Special Land Acquisition Officer, Gandak Project, Chapra. Annexure- 5/1 was issued on 23.12.86, by which Director, Land Acquisition and Rehabilitation issued a letter by which said Land Acquisition and Rehabilitation Officer were informed that an interview and written examination was scheduled to be held on 21.8.87 at 11.30 a.m. The aforesaid application was also forwarded by the Special Land Acquisition. On 2.4.87 by Annexure- 7/1 Director, Land Acquisition and Rehabilitation directed all persons desirous who are class-IV employees and who possess the requisite qualification for appointment on class-III posts, to appear at the interview and written examination. Pursuant to the said communication the petitioner appeared. By order dated 18.1.88 petitioner was promoted to the post of clerk in the pay scale of Rs. 580-860. It has further been contended that the resolution of the State relating to appointment of class-Ill post also envisages a procedure which relates to 25% of such post to be filled up by a limited examination from the person having requisite qualification and all other qualifications required for the aforesaid post except age limit. The said memo has been issued by the Personnel and Administrative Reforms Department on 25 July, 79. 4. A further contention has been made that on 4.10.90 also the Personnel and Administrative Reforms Department issued letter regarding filling 25% of such post in class-Ill from class-IV employees. It is contended that after his joining in 1988 on class-Ill on promotion petitioner was peacefully discharging his duties on the aforesaid post. 4. A further contention has been made that on 4.10.90 also the Personnel and Administrative Reforms Department issued letter regarding filling 25% of such post in class-Ill from class-IV employees. It is contended that after his joining in 1988 on class-Ill on promotion petitioner was peacefully discharging his duties on the aforesaid post. During the intervening period he also passed his accounts examination and Hindi noting and drafting examination. In 1993 petitioner passed his final accounts examination. However, on 18.6.1994, he was served with a notice as to why his services be not terminated. Petitioner filed his show cause. Again petitioner was directed to furnish his explanation by order dated 20.1.98 as contained in Annexure-13. Petitioner submitted his explanation. However, by order dated 24.3.2001 petitioner has been given a second show cause as to why his promotion to the post of typist be not cancelled. Again petitioner filed his show cause on 19.4.2001. However, by order dated 25.2.2003 as contained in Annexure- 15 petitioner was communicated that his promotion to the post of typist has been illegal and irregular and he has been directed to explain as to why he be not reverted. Petitioner filed his reply on 6.3.2003. By the impugned order as contained in Annexure-1 petitioner has been reverted back to his original post of Chainman. Petitioner filed a representation on 8.5.2003 and a further direction for payment of his salary in the promoted post and other allowance which was payable to him. 5. Present application has been filed for quashing of Annexure-1. Contention on behalf of the petitioner is that he being duly appointed as a Chainman on class-IV post and having the requisite qualification, he was not considered for promotion to the aforesaid post of clerk/typist for which a limited written and oral examination was taken and only by qualifying of the same, he had been appointed. He has relied on circular and memo sent by the Personnel and Administrative Reforms Department to show that such a provision exists for promotion from class-IV to class-Ill post. Petitioner has been discriminated against as he was not only the person who was promoted and only he has been chosen to be reverted back. He has relied on circular and memo sent by the Personnel and Administrative Reforms Department to show that such a provision exists for promotion from class-IV to class-Ill post. Petitioner has been discriminated against as he was not only the person who was promoted and only he has been chosen to be reverted back. Lastly, it has been argued that equity also weigh in his favour as for a long period he has been discharging his duties on a higher post for which he had qualification and a selection process had been gone into and subsequent thereto today, he cannot be discriminated and alone be made subject matter of being reverted back by Annexure-1. 6. Learned counsel for the State, on the other hand, relied on counter affidavit filed by him contends that there may be a provision for promotion from class-IV to class-Ill post but chainman was not covered under the same. Petitioner being a chainman could not have been considered for promotion and as such, the State Government when the aforesaid aspect came to its knowledge took all the precaution by giving the maximum opportunity which was required to the petitioner, have reverted back him to the original post to which he was appointed even order of recovery is not there. As such, it cannot be said that the order is prejudicial rather a wrong promotion which was given has been taken back after providing full opportunity. Lastly it has been argued that though the petitioner possesses requisite educational qualification but it has been obtained during the service period of the petitioner and for which permission of the authorities were not taken, as such, he cannot be deemed to be possessing such qualification. 7. This Court has taken into consideration two aspects of the matter. Firstly, there may be different posts in class-lV but all of them are class-lV employees of the State Government. The circular relating to the decision which has been communicated to all the departments of the State Government relates to promotion on 25% non-technical in class-Ill post by promotion from class-IV. Petitioner admittedly even accepting the argument of the State counsel was a class-IV employee of the State Government. The minimum educational qualification which was required for promotion to the aforesaid post was possessed by the petitioner. Petitioner admittedly even accepting the argument of the State counsel was a class-IV employee of the State Government. The minimum educational qualification which was required for promotion to the aforesaid post was possessed by the petitioner. Rather it is argued that from the service book of the petitioner it would be clear that the same has been entered into his service book also. Further aspect which has been contended that on the direction of the Director, Land Acquisition and Rehabilitation a limited competitive test for the said purpose was taken in which not only the petitioner but other similarly situated persons had also participated and after going through the selection process the petitioner had been promoted and appointed on a higher post. It has been contended that as the petitioner has faced the competition there were provision for the same and the petitioner after being promoted in the year 1988 was discharging the duties on the higher post and not only that during the said period he had passed the accounts examination and other Hindi noting and drafting examination. 8. In that view of the matter, as no pleading is to the effect that the appointment has been procured on promotion, by the petitioner by suppressing any material fact and the same has accrued to the petitioner only and other similarly situated persons, who have chosen to apply, for the said appointment on promotion are still continuing on the promoted post, today, the State cannot turn back and state that being a chainman he was not entitled to be considered for the aforesaid post. 9. This Court accepting the aforesaid submission finds that as a competitive test has been held, neither the authority promoting him has been found to be not vested with the said power to give promotion nor is he disqualified having lesser educational qualification and as he has faced the limited test alongwith other similarly situated persons today, equity also weighs in his favour and as such, his reversion being bad, annexure-1 to this writ application is quashed. 10. This writ application is allowed to the extent indicated above.