IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 1644 of 2007
Khaderan Sharma... ... ... ... ... Petitioner
Versus
The State of Jharkhand & Ors. ... ... ... ... Respondents
W.P.(S) No.6929 of 2007
Khaderan Sharma... ... ... ... ... Petitioner
Versus
The State of Jharkhand & Ors. ... ... ... ... Respondents
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CORAM: HON'BLE MR. JUSTICE AJIT KUMAR SINHA
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For the Petitioner: Mr. Binod Singh
For the Respondents: Mr. Rabindra Prasad, J.C. to G.P.IV
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4/22.6.2009
The petitioner has preferred two writ petitions. The first writ
petition W.P.(S) No. 1644 of 2007 has been preferred for the
following reliefs:
i)For issuance of an appropriate writ(s)/Order(s)/direction(s)
commanding upon the respondent to provide him the benefit of
assured career progression Scheme 2002 which provides that an
employee shall be entitled to second financial progression on
completion of 24 years of regular service.
ii) For issuance of an appropriate writ(s)/Order(s)/direction(s)
commanding upon the respondents to pay the officiate pay as he
officiated on the post of Boiler Supervisor in view of provision made
under Section 103 of the Jharkhand Service Code.
During the pendency of first writ petition, he has preferred
second writ petition W.P.(S) No. 6929 of 2007 for subsequent
cause of action which arose vide impugned order dated 22.11.2007
by which he was reverted from class 3 to class 4 posts on the
ground that his promotion was irregular and against the Circular.
The main contention raised by the counsel for the petitioner
is that his promotion order was regular promotion to the post of
Boiler Assistant on a regular pay scale vide order dated 8.7.86
issued by the Competent authority. He further submits that the
order of promotion was confirmed vide memo no.65 dated 22.2.91
and he continued to render his service on the promoted post for
good 21 years till issuance of the order dated 22.11.2007. His
main grievance is that the order dated 22.11.2007 is on the face of
it illegal and against the well settled cardinal principal of natural
justice since no opportunity was granted. Even though the order is
2.
punitive in nature and involves civil consequences and has been
given effect to retrospectively with direction to recover the amount.
The learned counsel for the respondents submits that the
promotion order was in contravention to the Circular and passed by
incompetent authority and it was in this background that it was
reconsidered and order was passed along with direction to initiate
action against the authority who had passed the order of
promotion. It has further been submitted that the petitioner himself
has represented before competent authority asking for promotion.
I have considered the rival submissions and pleadings.
Prima-facie, it appears that the Circular does not apply in the case
of promotion since it relates to word ‘appointment’.
Be that as it may, there is no dispute about the fact that the
recovery order that also retrospectively have been passed without
giving any opportunity or issuance of any show-cause notice and
that too after lapse of good 21 years. The minimum bare
requirement is to comply with the cardinal principal of natural
justice and in absence of that the order impugned is on the face of
it illegal, unsustainable and violative of the Article 14 of
Constitution of India and is accordingly set aside. However, the
respondent authority, if so advised, is at liberty to initiate action in
accordance with law.
The respondent authority should also consider the pending
representation of the petitioner for claim of Second A.C.P. and
dispose it of on its own merit within a period of three months from
the date of receipt of a copy of this order.
It goes without saying that if any recovery has been made
from the salary of the petitioner, the same shall be refunded to the
petitioner.
Both the writ petitions are accordingly disposed of.
(Ajit Kumar Sinha, J)
Sudhir/