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2007 DIGILAW 1907 (PAT)

Ganesh Tanti @ Ganesh Pd. Tanti v. State Of Bihar

2007-12-17

MRIDULA MISHRA

body2007
Judgment Mridula Mishra, J. 1. Heard learned Counsel for the petitioners and learned Counsel for the State. 2. The petitioners, who are nine in numbers, have challenged the order dated 28.7.2007 contained in Memo No. 2088 issued by the Civil Surgeon-cum-Chief Medical Officer, Munger, whereby they have been reverted to their original Class-IV posts after several years of their promotion to Class-III posts. 3. Petitioner Nos. 1 to 4 were promoted to Class-III posts in the year 1999, petitioner No. 5 in the year 1984 and petitioner Nos. 6 to 9 in the year 1991. They continued on their posts till the date of reversion and were getting salaries of the promoted posts as they were promoted against the vacant posts. Petitioners case is that they were given promotion following the procedure of law. There were vacancies on the promotional posts and they were promoted considering the quota fixed for promotion on class-III posts for Class-IV employees. Reservation policy of the Government was also followed. As such, their promotion was after following the due process of law and also that they were having requisite qualification for such promotion. After several years of their promotion, the Civil Surgeon-cum-Chief Medical Officer, Munger, by different Memo numbers dated 4.9.2006 issued show cause notices in the light of the order dated 7.7.2005 passed in L.P.A. No. 448 of 2005 (Arvind Kumar Yadav V/s. The State of Bihar). By these notices petitioners were asked to show cause and submit information regarding their promotion. They were asked to show cause whether their promotion was against the sanctioned vacant posts on the recommendation of the Establishment Committee. Since their appointments were made on the recommendation of the Establishment Committee against the sanctioned vacant posts in their own quota, the petitioners replied in the show cause but without considering the show cause submitted by the petitioners and without assigning any reason for not finding their show cause satisfactory, the promotion given to the petitioners have been cancelled and the petitioners have been reverted back to their original Class-IV posts by the impugned order. 4. Sri Ram Balak Mahato, learned Counsel for the petitioners, has assailed the impugned order specially on the ground that no reason has been given in the impugned order for finding the show cause filed by the petitioners unsatisfactory, which is mandatory for passing an order in exercise of quasi-judicial jurisdiction. 4. Sri Ram Balak Mahato, learned Counsel for the petitioners, has assailed the impugned order specially on the ground that no reason has been given in the impugned order for finding the show cause filed by the petitioners unsatisfactory, which is mandatory for passing an order in exercise of quasi-judicial jurisdiction. In support of his submission he has placed reliance in the case of The Siemens engineering & Manufacturing Co. of Indian Ltd. V/s. the Union of India and Anr. reported in AIR 1976 1785 wherein it has been held that It is now settled law that where an authority makes an order in exercise of a quasi-judicial function, it must record its reasons in support of the order it makes. Every quasi-judicial order must be supported by reasons. In this very decision further it has been held that The rule requiring reason to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasijudicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law. 5. On perusal of the impugned order it is apparent that no reason has been assigned for rejecting show cause submitted by the petitioner. However, in the counter-affidavit filed on behalf of respondent Nos. 6 to 8, the reason has been assigned in para-9. It has been stated that for giving promotion there are some procedures which have not been followed and, as such, promotion given to the petitioners have been rejected. 6. Learned Counsel for the petitioners in reply to this submission has stated that since no reasons have been assigned in the order passed by the Civil Surgeon, now it cannot be supplemented by filing an affidavit. In respect of his submission, he has placed reliance in a of case Mohinder Singh Gill and Anr. V/s. The Chief Election Commissioner, New Delhi and Ors. reported in AIR 1978 (SC) 851 specially para-8 of the judgment which is as follows: Para-8- The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. reported in AIR 1978 (SC) 851 specially para-8 of the judgment which is as follows: Para-8- The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji: Public orders, publicly made, in Exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. 7. Considering the submissions made by the parties and the pleadings, I find that the Civil Surgeon while passing the impugned order has not considered the show cause submitted by the petitioners. The impugned order is completely silent as to why the show cause submitted by the petitioners was not found to be satisfactory. In the impugned order itself the order passed by the High Court in L.P.A. No. 448 of 2005 has been mentioned but it has not been stated in the impugned order that how this decision has got relevance to the case of the petitioners. In the writ application it has specifically been mentioned that how the petitioners were promoted to Class-III posts from Class-IV posts against 50% reserved quota to be filled by promotions, observing all procedures for such promotions. In the counter-affidavit, the procedure regarding promotion given has been mentioned but it has not been denied that statement regarding observance of the procedure, mentioned in para-5 of the writ application, is false. I do not find that in giving promotions to the petitioners the impugned order has been passed by the Respondent-Civil Surgeon-cum Chief Medical Officer, Munger on consideration of the specific facts of the petitioners case. 8. I do not find that in giving promotions to the petitioners the impugned order has been passed by the Respondent-Civil Surgeon-cum Chief Medical Officer, Munger on consideration of the specific facts of the petitioners case. 8. Learned Counsel for the State submits that considering the audit report, the impugned order has been passed. How this audit report is relevant in the case of the petitioners has not been mentioned in the counter-affidavit, if promotions given to the petitioners are legal and valid otherwise. 9. In the given circumstances, I do find that the impugned order needs interference as it is compleltely silent and is not a reasoned order. Accordingly, the order contained in Annexure-1 passed by the Civil Suregeon-cum-Chief Medical Officer, Munger, is hereby quashed. This application is allowed.