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2009 DIGILAW 420 (JHR)

Zubair Ahmad Siddiqui v. State of Jharkhand

2009-03-23

AJIT KUMAR SINHA

body2009
Order This writ petition has been preferred for issuance of an appropriate writ, order or direction for quashing the order contained in letter no. 186, dated 7.11.2003 (Annexure-7) which has been passed by the Deputy Development Commissioner cum-Chief Executive Officer, Zila Parishad, Giridih without any application of mind to the directions of this Hon'ble Court contained in Judgment dated 8.9.2003 (Annexure-6) passed in C.W.J.C. No. 2109 of 1995(R) whereby and whereunder this Hon'ble Court had directed the Respondent-Deputy Development Commissioner-cum-Chief Executive Officer to reconsider the matter of reversion keeping in view the directions contained therein but without any application of mind and without considering the rules, the relevant factors and also the fact that the impugned order of reversion was issued after 22 years, the impugned order was passed by relying upon a letter dated 6.11.1999 which itself was void and nonest since the same was issued in the teeth of the interim order dated 19.8.1995 particularly, when, the petitioner had filed supplementary affidavit annexing documents to show that he was still continuing on the post of Assistant and the said statement was never denied by the respondents by filing any reply. 2. The facts, in brief, are set out as under:- The petitioner was appointed in lila Parishad, Giridih on the Post of Dattari as IV grade employee vide Memo No. 636 dated 22.12.1973 and was promoted as Office Assistant on 26.7.1981 with a specific condition that he will pass in the typing test examination conducted by the lila Parish ad within three months from the date of promotion. Petitioner not passed the typing test examination but remained In service in Zila Parishad, Giridih. It appears that typing test examination was conducted on 26.10.1991, 7.7.1992, 20.12.1993, 11,4.1994 and on 16.6.1994 and the petitioner appeared twice on 26.10.1.991 and 7.7.1992 but failed in the examination and thus,- the condition was not' fulfilled. Accordingly, a show cause notice was issued to him as to why he should not be reverted back to the post of Dattari. In the meanwhile, deduction was made from the salary of the petitioner on month to month basis but in compliance of the order passed by this court he was paid the entire deducted salary. Accordingly, a show cause notice was issued to him as to why he should not be reverted back to the post of Dattari. In the meanwhile, deduction was made from the salary of the petitioner on month to month basis but in compliance of the order passed by this court he was paid the entire deducted salary. In the meantime, vide Audit Report dated 30.6.1987 it was found that the promotion of the petitioner was illegal and the condition laid down in the Government Orders and Statutory Rule 78(a)(i) of Bihar Service Code were not followed. 3. It appears that the petitioner had filed a writ petition being CWJC No. 21091 95(R) and vide interim order dated 9.8.1995 the impugned order dated 26.6.1995 was stayed. Finally, vide a detailed speaking order the said writ petition was disposed of vide order dated 8.9.2003 directing the lila Parishad, Giridih or the Deputy Development Commissioner-cum-Chief Executive Officer, lila Parishad, Giridih to reconsider the matter. Upon the matter being remitted back the Deputy Development. Commissioner-cum-Chief Executive Officer, lila Parishad, Giridih vide its impugned order dated 7.11.2003 while considering the order rejected the representation of the petitioner which laid down to filing of present writ petition. 4. The admitted fact remains that the promotion of the petitioner was cancelled and he was reverted in the year 1995 itself. However, there was a stay order which continued till the matter was finally disposed of but he continued on the said post in view of the stay order passed by this court vide its order dated 9.8.1995. 5. The main contention raised by the counsel for the petitioner is that he has worked for 22 years. It has further been contended that the typing test for promotion to the post of Office Assistant for incorporation of such a condition was illegal and unsustainable in the eyes of law. 6. The respondents have submitted that a writ petition was initially filed by the petitioner being C.W.J.C. No. 1272194(R) which was disposed of on 28.3.1995 with the observation that if the petitioner does not fulfill' the condition for promotion he may be reverted to the post of Daftari. It has further been submitted that the petitioner continued on the basis of stay order passed by this court and the admitted fact remains that the condition for the promotion was admittedly not complied with or fulfilled. 7. It has further been submitted that the petitioner continued on the basis of stay order passed by this court and the admitted fact remains that the condition for the promotion was admittedly not complied with or fulfilled. 7. I have considered the rival submission and pleadings and the admitted fact remains that the petitioner appeared twice in typing test examination and failed which was admittedly a condition for promotion and as many as five opportunities were given to him for clear the typing test. 8. Be that as it may, the fact remains that the petitioner initially filed a writ petition being C.W.J.C. No. 1272195(R) challenging the same and for the similar relief and the said writ petition was disposed of on 28.3.1995 with the following direction:- "In the result, this application is allowed and the order as contained in Annexure-5 is quashed in so far as the petitioner is concerned. The money which has already been deducted from the salary of the petitioner may be repaid to him. However, it is made clear that the petitioner may be reverted to the post of Daftari if he has not fulfilled the condition of his promotion, but from the date of reversion and received only, he should be getting the pay of Daftari and till date he was holding the post of Office Assistant, he would be entitled to get the salary and other benefits to the post of Assistant." 9. From the perusal of the aforesaid order, it is clear that in case the petitioner falls to fulfill the condition of the promotion he was liable to be reverted back to the post of Daftari. Consequently, an office order dated 26.6.1995 was issued reverting the petitioner from the post of Office Assistant to the post of Daftari. It appears that immediately on issuance of the office order dated 26.6.1995 the petitioner filed a fresh writ petition being C.W.J.C. No. 2109/95(R) challenging the order dated 26.6.1995. 10. The admitted fact remains that the order dated 28.3.1995 passed in C.W.J.C. No. 1272/94(R) was neither challenged nor questioned and it has attained finality more so when the direction was issued in the order not to deduct the salary and to refund the amount which has already been deducted was already acted upon. 10. The admitted fact remains that the order dated 28.3.1995 passed in C.W.J.C. No. 1272/94(R) was neither challenged nor questioned and it has attained finality more so when the direction was issued in the order not to deduct the salary and to refund the amount which has already been deducted was already acted upon. Even this court in its order dated 8th September, 2003 passed in CWJC No. 2109/95(R) at para-l0 has specifically held as under:- "At the very outset having regard to the aforementioned facts and particularly the observations made by Patna High Court in the judgment passed in C.W.J.C. No. 1272/94(R) I am of the view that the order of reversion cannot be said to be illegal or arbitrary in nature. Admittedly, the petitioner did not pass the typing examination which was the condition for giving him promotion." 11. The respondents have acted in compliance to the order and liberty given by the High Court and that order has neither been challenged nor assailed and has attained finality and even otherwise in the second writ petition also this court held that the reversion cannot be said to be illegal and arbitrary in 'nature, the third writ petition challenging the order based on the aforesaid two orders cannot be sustained in the eyes of law. 12. Considering the aforesaid facts and circumstances of the case, this writ petition is devoid of any merit and is accordingly dismissed.