IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.4501 of 2010
1. Bikrama Singh, Son of Late Sitaram Singh, resident of village- Mairi
Maksuspur, P.O. Chakian, P.S. Bhagwanpur Hatt, District- Siwan.
2. Rajendra Prasad Singh, Son of Late Radha Mohan Singh, resident of Village-
Kapripur, P.O. Nabiganj Bazar, P.S. Basantpur, District- Siwan.
....... Petitioners
Versus
1. The State Of Bihar.
2. The Principal Secretary, Water Resources Department, Sinchaee Bhawan,
Patna.
3. The Additiional Secretary to the Government, Water Resources Department,
Sinchaee Bhawan, Patna.
4. The Chief Engineer, Office of Central Design Organisation, Water Resources
Department, Anisabad, Patna.
5. Jawaharlal Lal, Son of Late Kishori Lal, resident of Village- Purani Chauk,
P.S. Fatuha, District- Patna, at present posted as Head Assistant, Canal and
Canal Structure Design Circle, Anisabad, Patna.
6. Rama Shankar Singh, Son of Late Sheo Poojan Singh, resident of Mohalla-
Yarpur, Near- D.V.C. Small Quarter, P.O. G.P.O., Patna, P.S. Gardanibagh,
District- Patna.
... Respondents
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4 06.09.2011 Heard learned counsel for the petitioner, State and
respondent no.6. No one appears for respondent no.5 despite
having entered appearance and filed counter affidavit.
2. The petitioners are aggrieved by the orders dated
04.10.2005 and 19.01.2010. The former cancels the promotion
of petitioner no.1 on the need based post of Head Assistant
granted on 29.06.2005 with effect from 01.02.2003. The latter
shifts the date of promotion of petitioner no.1 against the need
based post of Head Clerk from 01.01.1996 to 01.04.2008 and
that of petitioner no.2 from 01.01.1996 to 01.02.2001. It places
Respondent Nos. 5 and 6 over petitioner no.1 and Respondent
No.5 above petitioner no.2.
3. It is submitted that the petitioners were appointed
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as correspondence Clerk subsequently promoted to Head Clerk
in the Junior Selection Grade. The petitioners passed the
Departmental Accounts Examination and petitioner no.1 was
given the Junior Selection Grade on 15.02.1986 and Senior
Selection Grade on 15.02.1991 while petitioner no.2 was given
on 01.04.1981 and 05.11.1991 respectively. Petitioner No.1 was
promoted as Head Clerk on 01.01.1996 and Head Assistant on
01.02.2003. Petitioner No.2 was granted such promotion as
Head Clerk on 01.01.1996. The promotions were on need based
post. C.W.J.C. No. 4348 of 2000 and C.W.J.C. no. 10207 of
2009 came to be filed by respondent no. 5 and 6 claiming
seniority over the petitioners.
4. It is submitted that in both the writ applications,
this Court directed the respondents to consider the grievance of
the petitioners/respondents that juniors to them had been made
Head Clerk and to consider their representation for promotion.
That has been treated as an authority by the State-respondents to
pass orders adversely affecting the petitioners without any
opportunity to them for presenting their defense.
5. Counsel for the State submitted that the need for
shifting the dates of promotion of the petitioners has arisen
because of the orders of this Court in C.W.J.C. No. 4348 of 2000
and 10207 of 2009. The adverse consequences on the petitioners
were the result of the compliance with the orders of this Court.
The revised gradation list had been prepared from the date of
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first joining in the Department. The counter affidavit stops at
that and does not deal with and discuss how, why and in what
manner the earlier decisions of the respondents were re-
examined by them and found to be erroneous. It confronts the
Court with their conclusions.
6. Counsel for respondent no.6 also sought to address
the Court which the Court does not consider necessary as the
writ petition has to be decided on the grievances of the
petitioners made out and not from any defense furnished in the
counter affidavit of the respondents in the nature of the
discussion to be held hereinafter.
7. The petitioner no.1 is stated to have superannuated
on 31.01.2010. Petitioner No.2 has superannuated on
31.03.2008. Respondent No.6 has also superannuated on
31.10.2008. Only Respondent No.5 is in service. The further
grievance of the petitioners is against the order dated 28.06.2010
at Annexure-15 by which the recovery has been directed from
them in pursuance of the impugned orders.
8. The Court is satisfied that the stage for judicial
review has not arisen as yet. The administrative exercise which
was to be carried out in the portals of the Secretariat first, to be
followed by a reasoned order after due opportunity to those
likely to be affected has not been followed. The administrator
cannot throw its burden on the Court and require the Court to
carry out that administrative exercise. The Court does not
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exercise administrative powers but powers of judicial review
over administrative decision. The administrative decision first
has to be in accordance with law whereafter the question of
going into or not going into the merits may arise.
9. The petitioners have specifically asserted in
paragraph-39 of the writ application that before issuance of the
impugned orders dated 04.10.2005 and 19.01.2010, no show-
cause notice was issued to the petitioners. The Court at this stage
is not concerned with the correctness of the decision taken by the
respondents. The Court is concerned with the manner in which
the decision has been taken. In the writ applications preferred by
the private respondents, this Court had not issued any mandamus
to the respondents for violating the basic tenets of the principal
of natural justice to pass any orders adverse to the petitioners
without hearing them. No Court of law can pass an order
contrary to the law. The State- respondents while dealing with
the same in paragraph-20 of the counter affidavit do not deny
this fact. The impugned order being in violation of the principles
of natural justice are, therefore, completely not sustainable.
10. In 1995 (2) SCC 377 an order of reversion in
violation of the principles of natural justice having adverse civil
consequences was held to be completely un-sustainable.
11. The petitioners are stated to have retired and are
now faced with the predicament for recovery from their meager
pensionary resources in pursuance of an order passed to the
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contrary of law. In 2010 (8) SCC 701, the Supreme Court has
held at paragraph 38 that no recovery can be effected from
persons who have retired. There are no allegations against the
petitioners of having obtained the benefits of the promotion by
any misrepresentation or misconstruing matters.
12. The impugned orders are, therefore, held to be not
sustainable in so far as the petitioners are concerned. They are,
accordingly, set aside. The application stands allowed.
( Navin Sinha, J.)
Md. Ibrarul