High Court Patna High Court - Orders

Manrup Singh vs The State Of Bihar & Ors on 28 June, 2011

Patna High Court – Orders
Manrup Singh vs The State Of Bihar & Ors on 28 June, 2011
                             IN THE HIGH COURT OF JUDICATURE AT PATNA
                                       CWJC No.634 of 2009
                                           Manrup Singh .
                                              Versus
                                     The State Of Bihar & Ors .
                                           -----------

2. 28.06.2011 Heard learned Counsel for the petitioner and the learned

Counsel for the State.

The petitioner was given a show cause notice dated 29.7.2004

by the office of the Chief Engineer, Water Resources Department at

Dehri. It states that the time bound promotions granted to the petitioner

were contrary to the Finance Department letter no. 3683 dated

1`7.5.2003 and the consequential departmental order in pursuance

thereof vide no. 3716 dated 9.6.2003. The petitioner submitted his reply

to the same. Final orders have been passed on 10.1.2006 cancelling

the time bound promotions and shifting the dates as also ordering

recovery. The writ petition encloses an order dated 6.5.2006 that a

bench of this Court in CWJC no. 1009 of 2005 had struck down the

Finance Department Circular dated 17.5.2003. It is therefore apparent

that the show cause notice was based on a specified ground which was

no more available after it was struck down by the Court.

The counter affidavit affirmed by one Sri Dharni Dhar Prasad,

who does not disclose his official status, at paragraph 18 states that the

stricking down of the Finance Department circular dated 17.5.2003 was

inconsequential as the order can still be justified in light of the

departmental letter no. 1503 dated 27.3.1987. The action is therefore

justified in law.

If the show cause notice was based on a specified ground with

regard to a specified circular and the reply furnished, the determination

had to be done on basis of the grounds mentioned in the show cause

notice. It is not open to the respondents to urge one ground in the show
2

cause notice and then on challenge laid before the Court finding that

ground to be unsustainable invoke a fresh ground not mentioned in the

show cause notice. This law of Service Jurisprudence stands very well

settled and needs no further discussion. Such order beyond the show

cause notice becomes arbitrary and illegal as the delinquent had no

opportunity to meet the same.

The writ petition specifically pleads the fact of the Finance

Department Circular dated 17.5.2003 having been set at naught by the

Court. The deponent has admitted that ground yet seeks to contest the

matter.

The manner in which the deponent to the counter affidavit seeks

to contest the matter notwithstanding its being indefensible in law,

disturbs the Court. Had he been a little more cautious in reading the writ

petition along with its annexures perhaps casualness of approach on his

part and a stand contrary to the law may have been avoided and could

have saved the unnecessary litigation.

The Court directs the Commissioner cum Secretary, Water

Resources Department to examine the indefensible stand taken by the

deponent before this Court contrary to the State Litigation Policy more

particularly with regard to indefensible causes and take appropriate

administrative action.

The very substratum having admittedly been knocked down by

annulment of the circular dated 17.5.2003 by judicial pronouncement

the show cause notice itself becomes illegal. Any final order passed on

the same is therefore of no significance.

The Court formally declares the impugned order dated

10.1.2006 to be illegal. It is accordingly quashed. Any recovery made in

pursuance thereof is directed to be refunded to the petitioner in
3

accordance with law within a maximum period of two months from the

date of receipt and/or production of a copy of this order.

The writ application stands allowed.

Snkumar/-                                         (Navin Sinha,J.)