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2004 DIGILAW 993 (PAT)

Biroo Prasad v. State of Bihar

2004-09-18

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JUDGMENT C.K. PRASAD, J.- This application has been filed for quashing the order dated 5.2.1997 (Annexure-2) whereby the petitioner's promotion as clerk made on ad hoc basis has been cancelled and he has been posted to his original post of Male Family Welfare Worker. Further prayer made by him is to quash the order dated 16.8.1999 (Annexure-1) whereby he has been asked to hand over the charge of clerk to another clerk. 2. Shorn of unnecessary details, facts giving rise to the present application are that by order dated 28.7.1979, petitioner was appointed as Family Welfare Worker. Later on, by order dated 9.10.1982 (Annexure-4) issued by the Civil Surgeon-cum-Chief Medical Officer, Purnea, he was promoted to the post of clerk in the scale of pay of Rs. 580-860/- Thereafter by order dated 26.10.1992 (Annexure-5), he was promoted purely on ad hoc basis as clerk in the scale of pay of Rs. 1200-1800/. The order of promotion indicates that he was promoted as clerk on account of his qualification and experience as a clerk. According to the petitioner, in pursuance of the said order, he joined as clerk on 29.10.1992 vide Annexure-6 before the Incharge Medical Officer, Bahadurganj. Thereafter, by order dated 24.11.1995 (Annexure-7), he was transferred as clerk from Primary Health Centre, Bahadurganj to that of Primary Health Centre, Thakurganj. 3. It seems that the matter of promotion of person on ad hoc basis was considered by the Establishment Committee in its meeting held on 27.1.1997 and it decided to rescind the appointment of such persons who had been promoted temporarily on ad hoc basis. In pursuance of the said decision; the Civil Surgeon, by order dated 5.2.1997 passed the order for cancellation of the promotion of the petitioner, besides other persons and for his posting as the Family Welfare Worker. In pursuance of the aforesaid order, the Incharge Medical Officer, Thakurganj, had directed the petitioner to hand over the charge of clerk to another clerk. 4. Mr. Ashok Kumar Sinha, appearing on behalf of the petitioner, submits that the petitioner has been reverted to the post of Family Welfare Worker without giving any opportunity to him and that itself vitiates the impugned order. He submits that to meet the requirement of principle of natural justice before cancelling the promotion of the petitioner, petitioner ought to have been given opportunity. He submits that to meet the requirement of principle of natural justice before cancelling the promotion of the petitioner, petitioner ought to have been given opportunity. In support of his submission, he has placed reliance on a judgment of this Court in the case of Ram Balak Singh Vs. The State of Bihar & Ors., 2003(4) PLJR 481 and draws my attention to paragraph no. 12 of the said judgment which reads as follows: "12.-In the given facts and circumstances of the case, as referred to above, the order impugned as contained in Annexure-1 is held to be wholly arbitrary, unreasonable and without jurisdiction." 5. Another judgment on which reliance has been placed is the decision of this Court in the case of Surendra Prasad Singh Vs. The State of Bihar & Ors.) 2000(1) PLJR 771 . 6. Junior Counsel to Govt. Pleader no. VIII, however, submits that the petitioner's promotion was effected on ad hoc basis and he has not been reverted to the post of Family Welfare Worker as a measure of punishment and as such, no inquiry was required to be held. 7. Having considered the rival submission, I do not find any substance in the submission of Mr. Sinha and the decisions relied on by him are clearly distinguishable. It is not known the process which was followed while promoting the petitioner as clerk. It is also not known as to whether while promoting the petitioner, cases of other eligible candidates were considered. The order of promotion simply indicates that he has been promoted on the basis of his qualification and experience as clerk on ad hoc basis. Whether the post of clerk falls in line of promotion of the Family Welfare Worker or not is also unknown. It is also unknown that as to whether the promotion is to be made following the principles of merit-cum-seniority or seniority-cum-merit and any procedure known to law was followed while promoting the petitioner. No rule or instruction has been brought to my notice to show that promotion to the post of clerk can be made on the basis of educational qualification. The petitioner was promoted on ad hoc basis and when the matter came to the notice of the Establishment Committee, it decided to rescind the promotion made on ad hoc basis. No rule or instruction has been brought to my notice to show that promotion to the post of clerk can be made on the basis of educational qualification. The petitioner was promoted on ad hoc basis and when the matter came to the notice of the Establishment Committee, it decided to rescind the promotion made on ad hoc basis. Thus, petitioner has been reverted to the original post not by way of punishment and hence no regular enquiry needs to be held. 8. Now, reverting to the decision of this Court in the case of Ram Balak Singh (supra), the promotion of the petitioner of the said case was cancelled but persons junior to him were allowed to continue and taking note of the said fact, the order cancelling promotion and reversion was held to be arbitrary. In the present case no such plea has been raised and the petitioner's promotion made on ad hoc basis, has been cancelled. So far as the decision of this Court in the case of Surendra Prasad Singh (supra) is concerned, same has no bearing at all as in the said, the question which fell for consideration was whether services rendered on ad hoc basis is fit to be counted for seniority or not. No such question arise in the present case. 9. To put the record straight, learned counsel for the petitioner has referred to a decision of this Court dated 20.9.1999 passed in C.W.J.C. No. 6051 of 1999 (Md. Irfan & Ors. Vs. The State of Bihar & Ors.) In the said case, while an inquiry was going on in regard to promotion of persons from Class IV to Class III, their salary as Class III employee was stopped, this Court observed that such employee shall be entitled to get salary of Class III post. This question in no way has any concern in this present case. 10. I do not find any merit in this application and it is dismissed accordingly. No cost.