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2010 DIGILAW 983 (PAT)

Dineshwar Prasad v. State Of Bihar

2010-04-27

DINESH KUMAR SINGH, NAVIN SINHA

body2010
JUDGEMENT Navin Sinha and D.K.Singh JJ. 1. Heard learned counsel for the appellants and the State. An order of this Court in L. P. A. No.448 of 2005 and analogous cases holding that promotion of Basic Health Workers from class-IV post to class-III post of clerk was not consonance with law led to an administrative order dated 18.10.2005 by the Director general, Health Services, Government of bihar, Patna, to examine all such cases of promotion and take appropriate action in accordance with law. 2. In pursuance thereto, the respondents passed an order on 31.03.2006 that the promotion of the appellants to class-III post was not in accordance with law and reverted them to class IV post after 27 years of such promotion. 3. On challenge by the appellants the judgment under appeal held that procedures required their cases to be considered for promotion by the Establishment Committee which had not been followed and a pick and choose method was adopted for grant of promotions. 4. The defence of non-compliance of the principles of natural justice and that the appellants were fundamentally different from the cases considered in L. P. A. No.448 of 2005 and analogous cases was negatived to hold that their reversion could not be set aside on the ground of having been passed after a long period of time and that giving of show cause notice to them would have made no difference to the final decision so as to warrant setting aside the impugned order on the ground of natural justice to be decided afresh. 5. Learned counsel for the appellants sought to persuade us that L. P. A. No.448 of 2005 and analogous cases came to be passed in context of promotions made from a non-technical post to a technical post. The appellants held a non-technical post and were promoted to a non-technical post. Notices were issued to them to appear for interview and verification of the original documents/educational qualifications only after which they were promoted. 6. In any event, there was no justification to revert them after 27 years when there were no allegations of fraud or misrepresentation made by them for obtaining such promotion. 7. The respondents completely misconstrued the order of the Division Bench in L. P. A. No.448 of 2005 and analogous cases. 6. In any event, there was no justification to revert them after 27 years when there were no allegations of fraud or misrepresentation made by them for obtaining such promotion. 7. The respondents completely misconstrued the order of the Division Bench in L. P. A. No.448 of 2005 and analogous cases. Relying on a Bench decision in C. W. J. C. No.14984 of 2005 it was submitted that notwithstanding the order in L. P. A. No.448 of 2005 and analogous cases the respondents were required to give a show cause notice and in absence thereof even direction for recovery was not justified. 8. Learned counsel for the State contended that the appellants were promoted to class-III post without their cases being considered by any Establishment Committee. The very promotion being illegal, the order of reversion called for no interference and the appeal be dismissed. 9. This Court shall proceed on the premise of the appellants that they held non technical post and were promoted as such taking them outside the purview of L. P. A. No.448 of 2005 and analogous cases. 10. In the writ petitions, there is no pleading that they were considered for promotion by an Establishment Committee. No date of appearance before such committee and the persons who constituted the Establishment committee has been stated. A bald statement has been made that they appeared for verification of their documents. Consideration for promotion entails more issues of efficiency, eligibility than mere examination of documents. 11. The order for their promotion also does not contain any recital that their cases were considered by an Establishment Committee. It was the specific stand of the respondents in their counter-affidavit that such promotions can be made through the Establishment committee alone. In absence of any assertion by the appellants with alongwith details of the date of sitting of the Committee, persons who constituted the Committee etc. ,we are satisfied that the promotion of the appellants is not sustainable. The question is that whether there has been any misrepresentation by them or not, the primary question is whether procedures for promotion were followed or not. If procedures were not followed, the law asks no more. The fact that no show cause notice was given to the appellants or that there was no occasion to examine their promotions in pursuance to l. P. A. No.448 of 2005 and analogous cases looses its relevance. 12. If procedures were not followed, the law asks no more. The fact that no show cause notice was given to the appellants or that there was no occasion to examine their promotions in pursuance to l. P. A. No.448 of 2005 and analogous cases looses its relevance. 12. The orders of the Letters Patent Court may have been the occasion to scrutinize the promotion of the appellants which then on its own merit was found unsustainable in law. Once, the challenge was laid out before the court, the respondents disclosed their defence and the appellants were unable to meet the requirement of their cases having been considered by an Establishment committee, the issue of natural justice looses its relevance. The judgment under appeal holds that giving a show cause to them would not have led to any different conclusion. 13. To that extent, We find no reason to interfere with the impugned order in so far as it directs reversion. 14. The appellants during the pendency of the appeals have filed a supplementary affidavit brining on record a Letter no.982 dated 08.04.2008 issued by the Civil Surgeon-cum-Chief Medical Officer, Rohtas at Sasaram addressed to the Director General, Health services, State of Bihar that on reassessment the promotion of the appellants had been found to be consonance with the law. 15. Suffice it to observe that there appears apparent contradiction between the stand taken by the respondents in the writ court. The order dated 08.04.2008 does not meet the averments of the counter-affidavit that the cases for promotions had not been considered by the Establishment Committee. 16. We consider it proper to leave this matter to the respondents by deciding the matter as the records stand. 17. It is next submitted that majority of the appellants are due for superannuation within a year. For that purpose reliance is placed in 2008 (2) S. C. C.750. 18. This Court is of the opinion that the aforesaid judgment is peculiar on its facts and no benefit to the appellants directly. 19. 17. It is next submitted that majority of the appellants are due for superannuation within a year. For that purpose reliance is placed in 2008 (2) S. C. C.750. 18. This Court is of the opinion that the aforesaid judgment is peculiar on its facts and no benefit to the appellants directly. 19. However, applying the analogy of that judgment and a Bench decision of this court in C. W. J. C. No.14984 of 2005, We considered it proper that notwithstanding the fact that we have not interfered with the order of reversion, the respondents are restrained from making any recovery from the appellants for the payments already made specially when no show cause notice was given to the appellants and there are no allegations against them of having obtained such promotion by misrepresentation or fraud. 20. The appeals are allowed with the aforesaid modifications.