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2005 DIGILAW 587 (PAT)

Arvind Kumar Yadav v. State Of Bihar

2005-07-07

NAGENDRA RAI, S.N.HUSSAIN

body2005
Judgment 1. These appeals are directed against the order dated 17.3.2005 passed by the learned Single Judge in a batch of cases dismissing the writ applications filed by the petitioners-appellants challenging their reversion as well as recovery of the amount paid to them on account of promotion. 2. Except some appellants who were Class IV employees remaining appellants were holding Class III post, that is, Basic Health Workers. They were promoted to the post of Clerk in the year 1992 and onwards. An audit team raised an objection to the said promotion that they cannot be promoted and thereafter the matter was taken up by the Government and ultimately the appellants were reverted to the original post. Being aggrieved with the said order, the some of the petitioners-appellants came to this court and this court quashed the order on the ground that adequate opportunity to show cause was not given to them. Thereafter, show cause notices were given to the appellants to which they replied and ultimately an order was passed reverting their services to the original post and to recover the excess amounts, which has been upheld by the learned Single Judge in the impugned order. 3. The order of reversion was passed by the authority on the grounds; that as the Basic Health Workers belong to the technical cadre they cannot be promoted to the post of Clerk (non-technical cadre); that their promotions were granted without placing their cases before the Establishment Committee and the Committee which accorded approval to the promotions was not properly constituted; that the reservation policy was not followed and the procedure to give promotion was adopted without making any advertisement. 4. The learned Single Judge dismissed the writ applications on the ground that the promotion granted to the appellants was void ab initio and, accordingly, upheld the order of the authority reverting the appellants to the original post and directing to recover the excess amount. 5. Learned counsel appearing for the appellants including the Senior Counsel Mr. Ganesh Prasad Singh, who appeared in one of the appeals, submitted that the promotion cannot be termed as void ab initio. There were certain irregularities only which could be waived. 6. It is difficult to accept the aforesaid submission. 5. Learned counsel appearing for the appellants including the Senior Counsel Mr. Ganesh Prasad Singh, who appeared in one of the appeals, submitted that the promotion cannot be termed as void ab initio. There were certain irregularities only which could be waived. 6. It is difficult to accept the aforesaid submission. So far Class III employees are concerned, they in no case could have been promoted from technical cadre to the non-technical cadre and as such their promotion is void ab initio. This apart Class III employees were already holding Class III post and as such there is no question of promotion to the same class. Apart from this other serious irregularities, as stated above, have been noticed and as such the decision taken by the authority for reversion does not suffer from any illegality. 7. We fully agree with the view taken by the learned Single Judge. So far Class IV employees are concerned, their promotions were also not considered in terms of the statutory provision. The quota for promotion to Class III from Class IV is fixed and procedure has been provided for the same but the same was not followed. This apart all the appointments were made by the Civil Surgeon in spite of the ban of the Government regarding appointment etc. 8. Learned counsel for the appellants further contended that in any case as the appellants have worked on a promotional post, there should not have been an order for recovery of the amount and in this connection they have submitted that the principle of equity applies in their cases. 9. Had there not been any gross illegality in giving promotion, we would have considered the matter sympathetically but in a case where there is a flagrant violation of the provision regarding promotion, which is unacceptable and shocking to the conscience, we would not be justified in questioning the order for recovery of the amount. 10. However, as it appears that there is an avenue of promotion to the Basic Health Workers to the technical side, in case there are vacancies and they are found fit, their cases should be considered for promotion from a date when the vacancy arose keeping in mind the nature of vacancy and the restriction put on the same by the Government. So far Class IV employees are concerned, if there are vacancies then their case should also be considered in the same manner. The authorities should consider and take decision expeditiously preferably within four months from the date of receipt/production of a copy of this order. 11. In the result, all the seven appeals are dismissed with the aforesaid observations.