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2006 DIGILAW 923 (PAT)

Shyam Sundar Sharma v. State Of Bihar

2006-10-11

RAMESH KUMAR DATTA

body2006
Judgment 1. Heard Mr. Rama Kant Sharma, learned Senior Counsel for the petitioner and learned Standing Counsel No. 17, for the State. 2. The petitioner seeks quashing of the order no. 13 contained in memo no. 1958 dated 11.5.2006 passed by the Director, Animal Husbandry and Fisheries Department, Bihar by which promotion earlier granted to the petitioner on the post of Computer (Ganak) has been cancelled and the petitioner has been reverted to the Class IV post. 3. Learned counsel for the petitioner submits that by the said impugned order dated 11.5.2006 another person, namely, Sri Vijay Kumar who had similarly been promoted as a Computer in the Directorate has also been reverted and his order of promotion has been cancelled. The said Sri Vijay Kumar came to this Court by filing CWJC No. 6761 of 2006 which was allowed by order dated 29.8.2006 by a learned Single Judge of this Court. In the said decision this Court came to the conclusion that the alleged show cause notice cannot be described as such since by the same memo the petitioner was merely asked to submit his matriculation certificate and the documents in connection with promotion and he was not asked to show cause why the promotion should not be annulled and he should be reverted to Class IV post. Further, on the merits of the case this Court found that the respondent-authorities seem to object mainly to the manner in which the petitioner was given promotion and that it was not denied that the said petitioner was matriculate or that he secured more than 60% marks in mathematics in the matriculation examination and further that the promotion was given to him beyond the quota of 25% reserved for Class IV employees. This Court has also taken into consideration the fact that the petitioner had worked on the post of Computer for 17 years. On a consideration of the entire facts and circumstances, this Court held the action of the respondent-authorities in annulling the promotion as quite unreasonable, unjust and unfair and accordingly, quashed the impugned order. 4. This Court has also taken into consideration the fact that the petitioner had worked on the post of Computer for 17 years. On a consideration of the entire facts and circumstances, this Court held the action of the respondent-authorities in annulling the promotion as quite unreasonable, unjust and unfair and accordingly, quashed the impugned order. 4. The learned counsel for the State has tried to distinguish the said case on the sole ground that whereas said Sri Vijay Kumar had admittedly obtained more than 60% marks in mathematics in the matriculation examination, so far as the petitioner is concerned, it is admitted that he had only 59% marks in mathematics in the higher secondary examination. It is thus, submitted that the case of the present petitioner stands on a different footing and he cannot claim the benefit of judgment of this Court dated 29.8.2006 in Sri Vijay Kumars case. It is true that the Government circular dated 26.8.1986, which lays down the criteria and other aspects for promotion of 25% employees from Class IV to Class III post of Computer, prescribed 60% marks in mathematics in matriculation examination. However, it has been rightly pointed out by the learned counsel for the petitioner that there was no suppression of the said fact and it is evident from Annexure-4, the letter no. 1628 dated 4.10.1987 addressed to the Director, Animal Husbandry, Bihar by the District Animal Husbandry Officer, that the petitioner had passed higher secondary examination in the year 1970 in second division with 59% marks in mathematics and his mark-sheet was also enclosed with the said letter. It is thus, evident that this aspect of the matter had been taken into consideration that the petitioner had obtained 59% marks in mathematics in a superior examination than the matriculation examination and was short of 60% by only one mark and considering the same the order of promotion dated 21.7.1989 was passed by the Director, Animal Husbandry Department. 5. Moreover, it is evident that the impugned order dated 11.5.2006 has been passed both with respect to said Sri Vijay Kumar and the present petitioner on precisely the same grounds that after enquiry their promotion had been found to be illegal and accordingly, they had been reverted to Class IV post with immediate effect. 5. Moreover, it is evident that the impugned order dated 11.5.2006 has been passed both with respect to said Sri Vijay Kumar and the present petitioner on precisely the same grounds that after enquiry their promotion had been found to be illegal and accordingly, they had been reverted to Class IV post with immediate effect. No such distinction has been made in the impugned order in the case of Sri Vijay Kumar and the present petitioner and thus, it is not open to the respondent-authorities to add further reasons in support of their case in the counter affidavit that they have filed. The said proposition has been clearly laid down by the Supreme Court in the case of Mohinder Singh Gill and Another vs. The Chief Election Commissioner, New Delhi & Others: AIR 1978 SC 851 . 6. In the aforesaid circumstances, it has to be held that the petitioners case stands on the same footing as that of Sri Vijay Kumar in whose case it has already been held by this Court that the action of the authorities in annulling the promotion and reverting him to Class IV post is quite unreasonable, unjust and unfair. In the case of the petitioner also in view of the grounds given in the impugned order it has to be held that the said order even with respect to the petitioner is unreasonable, unjust and unfair and accordingly, it is quashed. 7. In the result, this writ application is allowed but without any order as to costs.