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2012 DIGILAW 1683 (PAT)

Kamla Kant Jha v. State of Bihar

2012-12-13

RAVI RANJAN

body2012
ORDER Heard learned counsel for the petitioner and the State. 2. Through this writ application the petitioner seeks quashing of the order contained in Memo No. 554 dated 30.4.2010 issued by the District Superintendent of Education, Araria (Annexure 1) by which the petitioner along with other teachers were reverted back to Matric scale after withdrawing the promotion which was earlier granted to them allowing B.A. trained scale and then the Headmaster vide Annexure 6 19.11.1987 which was modified vide Annexure 7 dated 3.2.1990. However, the aforesaid promotion was cancelled vide Annexure 8 dated 19.12.1990 on the grounds mentioned in the document itself. 3. Aforesaid order of cancellation of promotion was challenged by the petitioner and others in C.W.J.C. No. 284 of 1991 which was disposed of on 15.5.1991 setting aside the order of demotion and the direction of recovery of excess amount on the ground that the order concerned was passed without following the principle of natural justice. However, the respondents were given liberty to take fresh decision in accordance with law after giving the petitioners an opportunity of showing cause. Thereafter, no fresh decision was taken by the concerned respondents and the petitioner was granted senior scale of Headmaster vide order dated 20.3.2002 as contained in Annexure 11. Subsequently, the petitioner superannuated from service on 31.1.2004. After about more than 6 years from the date of retirement as well as after payment of his post retiral dues and after about 10 years of the order of the High Court, as contained in Annexure 9, the impugned order as contained in Annexure 1 has been passed cancelling the promotion granted to the petitioner directing for recovery of amount paid in excess. 4. The petitioner assails the impugned order on several grounds. First ground taken by the petitioner is that the order has again been passed without following the principle of nature justice as the petitioner was never given any notice. Secondly, on the ground that such action should not and could not have been taken by the State authorities after six years of his retirement and after payment of his retiral dues. Thirdly, the impugned order does not disclose as to what were the specific discrepancies in promotion of the petitioner except the technical one that the order of promotion was not approved by the District Establishment Committee. 5. A counter affidavit has been filed on behalf of the State. Thirdly, the impugned order does not disclose as to what were the specific discrepancies in promotion of the petitioner except the technical one that the order of promotion was not approved by the District Establishment Committee. 5. A counter affidavit has been filed on behalf of the State. It has categorically been stated that the petitioner was given a show cause notice and in response thereto he filed his reply and finding the same to be unsatisfactory that was rejected. Therefore, the impugned order has rightly been passed. Learned counsel for the State submits that, apart from the lack of required approval of the District Establishment Committee, the promotion granted to the petitioner was also illegal in view of the fact that it was given without following the reservation policy as well as without considering the inter se seniority. However, when he was confronted with the question that which of the senior person was not granted promotion and what is the basis of the submission that petitioner was granted promotion without following the inter se seniority, learned counsel has not been able to demonstrate anything in support of his submission except the bald statement made in the impugned order and in the counter affidavit. Same is also the situation regarding non observance of the policy of reservation. Merely a bald statement cannot be considered and accepted by this Court. 6. Apart from the above, though a stand has been taken that show cause notice was issued to the petitioner and he had submitted his reply to such notice which was considered and rejected, neither any copy of the notice nor the reply to the show cause notice filed by the petitioner or any order rejecting the reply of the petitioner on certain grounds have been brought on record in support of the aforesaid stand which was definitely required in view of the specific stand taken by the petitioner in paragraph 22 of the writ application alleging that incorrect stand has been taken in the impugned order that the petitioner was given a show cause notice and, upon consideration of his reply, the order has been passed. It appears that the statement has been made in the counter affidavit only for the sake of making it. It appears that the statement has been made in the counter affidavit only for the sake of making it. A direction was given by this Court in its earlier order dated 5.8.2010 that the State must make statement as to what had happened in between the year 1991 and 2010, i.e., the date when the order (Annexure 9) was passed and the date of the impugned order and why no action was taken for about 10 years and, now, about six years after the retirement of the petitioner such action has been taken. In reply thereto it has been stated in paragraph 14 of the counter affidavit that a fresh decision after giving opportunity of showing cause to the petitioner should have been taken but it was not taken during the aforesaid period which shows dereliction of duty and laches on the part of the respondent authorities of District of Purnea. That being the situation the question would arise as to whether the petitioner now, after retirement and after payment of retiral dues, should be penalized specially in view of the admitted dereliction of duty by the officials of the respondent State. The answer would always be in negative. That apart, neither any order has been brought on record nor is any finding recorded in the impugned order showing as to why the grounds allegedly raised by the petitioner in the show cause were not found satisfactory. Merely a bald statement finding it unsatisfactory has been recorded which cannot be accepted. 7. It is well settled that any order passed by the authority visiting civil consequence on the concerned person must assign reason after consideration of the cause shown by him otherwise the same would be considered as an order passed in a mechanical manner without application of mind as has been laid down by a Division Bench of this Court in M/s Umesh Chandra Kumar Vs. The State of Bihar and others reported in 1999(1) B.L.J., 548. 8. The Division Bench has clearly laid down that if any order of the authority would lead to a civil consequence affecting the party then the requirement would be of issuing show cause notice and considering its reply and thereafter passing an order recording reasons for rejection of the grounds raised in the reply to the show cause. In the absence of those the order cannot be sustained in law. In the absence of those the order cannot be sustained in law. Apart from the above, in the entire counter affidavit or even in the impugned order it has not been stated any where that the petitioner was actually not entitled for promotion at the relevant point of time. 9. In above view of matter, this Court is constrained to hold that the impugned order which has been passed after six years of retirement of the petitioner and after 10 years of passing of Annexure 9, cannot be sustained in law. 10. Accordingly, the same is quashed and set aside so far it concerns the petitioner. 11. As a result this writ application stands allowed.