IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.3779 of 2006
DIWAKAR PRASAD MANDAL SON OF SRI
MANESHWAR PRASAD MANDAL RESIDENT OF
VILLAGE FAJELIGANJ, P.O. TGARAPUR, P[.S.
TARAPUR, DISTRICT MUNGER.
Versus
1. THE STATE OF BIHAR THROUGH THE
COMMISSIONER CUM SECRETARY, PUBLIC HEALTH
ENGINEERING DEPARTMENT, NEW SECRETARIAT,
PATNA.
2. THE CHIEF ENGINEER, PUBLIC HEALTH
ENGINEERING DEPARTMENT, BHAGALPUR ZONE,
BHAGALPUR.
3. THE SUPERINTENDING ENGINEER, PUBLIC HEALTH
ENGINEERING DEPARTMENT, MUNGER CIRCLE,
MUNGER.
4. THE EXECUTIVE ENGINEER, PUBLIC HEALTH
ENGINEERING DEPARTMENT, MUNGER DIVISION,
MUNGER.
5. THE SUB-DIVISIONAL OFFICER, PULIC HEALTH
ENGINEERING DEPARMENT, SUB-DIVISIONAL OFFICE,
HAVELI KHARAGPUR, MUNGER.
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For the petitioner :- M/S. Akashdeep & Shyameshwar Kumar Singh
For the State :- Mr. Prabhakar Tekriwal, S.C. I.
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5 09/08/2010 The Court must fairly record that at a point of time
when the petitioner filed C.W.J.C. No. 10827 of 1995 seeking
a direction upon the respondents for granting him promotion,
High Court in its order dated 3.2.1997 contained in annexure-
4, based on the submissions made by the learned Counsel for
the State, recorded that since the petitioner did not sit for the
limited examination and his name did not figure in the
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register, petitioner could not be granted any relief. That order
was challenged before a Division Bench in L.P.A. No. 282 of
1997 which the petitioner withdrew after some argument.
But the issue of his promotion did not rest at that.
Vide order dated 23.11.1998 which is annexure-6, petitioner
was granted promotion to the post of Correspondence Clerk.
Annexure-6 categorically states that this promotion has been
granted on the basis of educational qualification and the
seniority of the petitioner though the order also records that
the promotion was provisional.
This promotion order came to be withdrawn in the
year 2002 vide order dated 26.6.2002. Petitioner challenged
this order of withdrawal by filing C.W.J.C. No. 8491 of 2002.
High Court after hearing the parties disposed of the said writ
application vide order dated 28.10.2002 contained in
annexure-7 with a direction to give an opportunity of hearing
to the petitioner and decide the issue. Order passed by the
Superintending Engineer, pursuant to annexure-7, is under
challenge in the present writ application. This order dated
22.02.2006 is annexure-10 to the writ application. After
passing of this order, yet another order posting the petitioner
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on Class IV post has also been issued on 23.2.2006 which has
been labeled as annexure-10/1 to this writ application and
petitioner wants quashing of this order as well.
Submission of the learned counsel for the petitioner
is that irrespective of what the high Court had observed in the
earlier writ application, the fact stood that taking into
consideration the educational qualification and seniority of
the petitioner in Class IV post, he along with others came to
be promoted on the post of Correspondence Clerk. He joined
that post and continued to work. There was no occasion for
withdrawing that order of promotion, more so, after it is
decided on the ground urged in the impugned order.
Paragraph 2 of annexure-10 categorically lays down
that the reasons for cancellation of the petitioner’s promotion
is violation of two Circulars issued by the Department of
Personnel and Administrative Reforms, Government of
Bihar, Patna which is Circular No. 2215 dated 11.2.1985 and
Circular No. 5939 dated 18.6.1993.
Both the Circulars have been produced before this
Court and the learned counsel has pointed out that there is a
clear indication therein that for such promotion or for a
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promotion from Class IV to Class III post, specially of
Correspondence Clerk, the applicants are not required to sit in
any examination. Local authorities are supposed to draw a
list of all eligible candidates, against vacancies on the basis
of marks obtained by them in School and College as well as
keeping their seniority in mind. The bogey of the petitioner
not having passed the examination raised by the respondents
is not supported by either of the Circulars which have been
issued by the State. Annexure-6 by virtue of which petitioner
was granted promotion states that keeping in mind the marks
obtained by the petitioner and his seniority, such a promotion
is given. If that was the primary and sole consideration, the
stand taken by the State that the petitioner did not opt or sit
for departmental examination is misplaced because there is
no requirement of that kind pointed out from the two
circulars.
The order of reversion, therefore, has to be seen in
light of the grounds which have been stated in the said
impugned order. Primafacie, the petitioner seems to have
made out a case that there is no breach of policy or of the two
circulars of 1985 or 1993 in grant of promotion.
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Learned counsel for the State again harps on the
order passed by this Court in Annexure-4 and the same fact
has been reiterated in the counter affidavit as well. Earlier
observation of the Court in Annexure-4 has no meaning in the
light of the fact that despite such an observation, it is the
respondents who went ahead and granted promotion to the
petitioner on which post he continued to work for quite a
while and it is only now in the year 2006 that it is sought to
be taken away.
Learned counsel for the State, as a last bid, tried to
rely on the Circular of 1993 which is annexure-1 to the writ
application to support his stand but a bare perusal of the said
Circular also does not support the stand of the respondents
that any kind of written examination was required to be held
in which Class IV employees were obliged to sit. In fact, the
Circular categorically states that no kind of written or oral
examination was required to be held in which the candidate
was required to participate. Merit list was to be prepared on
the basis of marks obtained in the school and the college
examination coupled with seniority and nothing more.
If there are other reasons or the infirmity in grant of
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promotion, then those aspects have not been highlighted or
pointed out. The Court is bound to go by the reasons
indicated in annexure-10 and the reasons given therein do not
support the respondents in withdrawing the order of
promotion granted to the petitioner.
Annexre-10 stands quashed. So is the
corresponding notification contained in annexure-10/1 by
which the petitioner has been reverted and posted on Class IV
post afresh. This writ application is accordingly allowed.
AMIN (Ajay Kumar Tripathi, J.)