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2004 DIGILAW 606 (JHR)

Kiriti Dutta v. State Of Bihar

2004-06-22

AMARESHWAR SAHAY

body2004
JUDGMENT Amareshwar Sahay, J. 1. The petitioner was appointed as a Computer Operator in the Office of the District Family Planning Officer, Santhal Pargana, Dumka vide Annexure-1. dated 27.2.1974. By issue ofAnnexure-3 dated 5.12.1974, the services of the petitioner was terminated at the instance of the Directorate (Health), Bihar. Patna. It is said that subsequently the Government took a decision to absorb all the retrenched employees of the Family Planning and Welfare Department and consequently thereafter a letter was issued to the petitioner (Annexure-4) dated 9.12.1977, whereby the petitioner was directed to appear with all relevant documents for consideration of his appointment. Vide An-ncxure-5, dated 4.2.1978 issued by the Office of the Chief Malaria Officer, Bihar, Patna, the petitioner was appointed as Superior Field Worker. Since the petitioner was not given the previous pay-scale which he was receiving prior to his retrenchment he represented to the Chief Malaria Officer, Bihar, Patna for his absorption on his previous pay-scale. It is said that though the petitioner was appointed as Superior, Field Officer but he was doing the duties of Clerk in the Office of the District Malaria Officer, Dhanbad and subsequently in the Office of Civil Surgeon-cum-Chief Medical Officer, Uhanbad. The petitioner, thereafter made an application to the Chief Malaria Officer, Bihar. Patna for his promotion to the post of Clerk, on the ground, that the was performing the duties of a Clerk since long. The Chief Malaria Officer, Bihar, Patna forwarded the application of the petitioner to the Civil Surgeon cum-Chief Medical Officer, Dhanbad vide letter dated 13.11.1987 (Annexure-10). The said forwarding letter of the Chief Malaria Officer, was placed before the Establishment Committee and then vide Annexure-11, the Establishment Committee, decided to promote the petitioner to the post of Clerk and consequently by issue of Annexure-12, dated 12.4.1990, the petitioner was promoted to the post of Clerk, on the basis of the decision of the Establishment Committee in the pay-scale of Rs. 1200-1800/- which was equivalent to the pay-scale of a Computer Operator, which the petitioner was drawing prior to his retrenchment. 1200-1800/- which was equivalent to the pay-scale of a Computer Operator, which the petitioner was drawing prior to his retrenchment. Thereafter by issue of Annexure-14 dated 29,7.1995, the promotion given to the petitioner on the post of Clerk was cancelled by the Chief Malaria Officer, Bihar, Patna on the ground that the promotion given to the petitioner on the post of Clerk was against the Government letter dated 20.1.1992 and the order of the High Court, passed in CWJC No. 5944 of 1992. 2. Being aggrieved by the said order of his cancellation of promotion, the petitioner moved Patna High Court in CWJC No. 7027 of 1995. Vide Annexure-18. dated 15.12.1995. the High Court disposed of the said writ application by setting aside the order under challenge before it, with certain directions which are quoted hereinbelow :- "This Court after considering the rival contentions of the parties, is of the view that an opportunity of hearing in such a case is must. In that view of the matter the impugned order contained in Annexure-1 is set aside. Respondent No. 2 is directed to issue notice to the petitioner immediately and no later than a period of two weeks from the date of receipt/communication of a copy of this order asking him to show cause why his promotion to the post of Clerk will not be set aside, and on receipt of said show-cause notice the petitioner must file a representation within a period of two weeks from the date of receipt of said show-cause. Thereafter, respondent No. 2 will decide the matter after giving an opportunity of personal hearing to the petitioner within a period of two months from the date of receipt/production of a copy of this order. Till such decision taken by respondent No. 2 the status quo as of today will be continued." 3. From the order and direction of the High Court, quoted above, it is evident that the respondents were directed to issue notice to show cause to the petitioner asking him to show cause as to why his promotion to the post of Clerk be not set aside and then the petitioner was directed to file his show cause. From the order and direction of the High Court, quoted above, it is evident that the respondents were directed to issue notice to show cause to the petitioner asking him to show cause as to why his promotion to the post of Clerk be not set aside and then the petitioner was directed to file his show cause. It was specifically directed that the respondents will decide the matter after giving an opportunity of personal hearing to the petitioner within a period of two months from the date of receipt/production of a copy of this order. 4. The grievance of the petitioner is that his appointment was made on the basis of Health Departments letter No. 210 dated 18.1.1978 and, therefore, he made a request in writing to the Chief Malaria Officer to supply him the copy of the said latter dated 18.1.1978 so that he can file an effective show cause but without supplying the said letter and without giving the petitioner a reasonable opportunity to file his show cause or even a chance of personal hearing as directed by the High Court, the Commissioner-cum-Secretary, Department of Health, Government of Bihar, Patna passed an order on 2.12.1996, holding that the Chief Medical Officer-cum-Civil surgeon had no Jurisdiction -to promote the petitioner to the post of Clerk, as the same could have been done by the Chief Malaria Officer, Bihar. Patna and consequently cancelled the promotion of the petitioner to the post of Clerk. 5. The petitioner has challenged the said order as contained in Annexure-24, dated 2.12.1996 in the present writ application. 6. It is submitted by the learned counsel for the petitioner that the impugned order, cancelling the promotion of the petitioner to the post of Clerk by Annexure-24 is absolutely illegal, arbitrary and unjustified on the grounds :- Firstly that the petitioner was neither afforded the reasonable opportunity to me his show cause nor he was supplied with the copy of the letter dated 18.11.1978 nor he was given the opportunity of personal hearing as per the specific order/direction of the High Court, therefore, the same is liable to be quashed. Secondly, that earlier the promotion of the petitioner was cancelled on 29.7.1995 on the ground that the petitioner was given promotion to the post of Clerk against the Government letter dated 20.1.1992, whereas, now vide Annexure-24 dated 2.12.1996, his promotion has been cancelled on the grounds that the Chief Medical Officer-cum-Civil Surgeon, Dhanbad had no jurisdiction to promote the petitioner to the post of Clerk i.e. on a quite different new around. Thirdly, that the grounds mentioned in the impugned order as contained in Annexure-24, that the Chief Medical Officer-cum-Civil Surgeon. Dhanbad had no jurisdiction to promote the petitioner to the post of Clerk was absolutely wrong, because after the appointment, the petitioner has filed an application before the Chief Malaria Officer. Bihar, Patna for grant of the same scale, which he was drawing before he was retrenched, the Chief Malaria Officer, himself forwarded his application to the Chief Medical Of fleer-cum-Civil Surgeon, Dhanbad, for consideration and then the Establishment Committee after considering the entire matter, had decided/resolved and then promoted the petitioner to the post of Clerk and, therefore, it is wrong to say that it is the Chief Medical Officer-cum-Civil Surgeon, Dhanbad. who promoted the petitioner to the post of Clerk had no jurisdiction. As a matter of fact. as per the decision of the Establishment Committee. the petitioner was promoted. Fourthly that the petitioner was promoted in the year 1990 and he has continued on the said post for a long period and, therefore, at this stage the cancellation of promotion of the petitioner and his reversion is not at all justified. It is submitted that in a similar matter, this Court in the case of Arun Kumar Sinha v. The State of Bihar and Anr., in CWJC No. 147 of 1996 (R), set aside the order of cancellation of promotion on exactly similar circumstance vide Annexure-26 annexed to the writ application, therefore, his case is covered by the said decision. 7. On the other hand, basing on the averments made in the counter affidavit, the learned GP I has submitted that the petitioner is not entitled to any relief whatsoever. It is submitted that no doubt, the promotion was given to the petitioner to the post of Clerk by a decision of the Establishment Committee but the said Establishment Committee was not validly constituted and, therefore, any decision of any such Establishment Committee was not valid. It is submitted that no doubt, the promotion was given to the petitioner to the post of Clerk by a decision of the Establishment Committee but the said Establishment Committee was not validly constituted and, therefore, any decision of any such Establishment Committee was not valid. It is further submitted that as per the direction of the High Court, the notice to show cause was issued to the petitioner and a reminder was also issued but on some pretext or the other, the petitioner wanted to linger the matter as status quo order was passed by the High Court and, therefore, the Secretary-cum-Commissioner had no option but to pass the impugned order. So far as the letter demanded by the petitioner is concerned, it is submitted that the said letter was not at all relevant. Referring to Annexure-E to the counter affidavit, learned counsel for the State submitted that the petitioner was not entitled at all to be promoted to the post of Clerk as he was not eligible for such promotion, 8. Having considered the rival contentions of the parties and having considered the entire facts and materials on record. I find that the submission of the learned counsel for the State that the Establishment Committee which decided to promote the petitioner to the post of Clerk was not validly constituted, is not tenable in view of the fact that it is not a ground mentioned in the impugned order annexed as Annexure-24 for cancellation of the promotion of the petitioner and further that the Chief Malaria Officer had himself forwarded the application of the petitioner for his promotion to the post of Clerk to the Chief Medical Officer -cum-Civil Surgeon, Dhanbad. I further find that there was specific direction of the High Court that before passing the order, the authorities had to give personal hearing to the petitioner but it is not disputed that no such hearing was given to the petitioner and, therefore, the impugned order (Annexure-24) was not passed as per the direction of the High Court in the earlier writ application filed by the petitioner. It is not disputed that the petitioner had continued on the promotional post of Clerk since 1990 and he is still continuing as such and, therefore, at this stage it would be highly unjust to cancel his promotion to the post of Clerk. It is not disputed that the petitioner had continued on the promotional post of Clerk since 1990 and he is still continuing as such and, therefore, at this stage it would be highly unjust to cancel his promotion to the post of Clerk. Relying on the ratio of the decision dated 23.7.1996 by this Court in the case of Arun Kumar Singh (supra) in CWJC No. 147 of 1996 (R) which was followed in CWJC No. 3302 of 1996 (R) disposed of on 28.8.1997 contained in Annexures-25 and 26 respectively, this writ application is allowed and the order as contained in Annexure-24 dated 2.12.1996 is hereby set aside. No costs.