IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL WRIT JURISDICTION CASE No.6193 of 2010
MD.FIROZ KHAN Vrs THE STATE OF BIHAR & ORS
with
CIVIL WRIT JURISDICTION CASE No.7054 of 2011
MD.FIROZ KHAN Vrs THE STATE OF BIHAR & ORS
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For the Petitioner: Mr Surendra Kumar Singh with
Ms Sudha Chandra, Advocates
For the State : Mr. P.K.Verma, AAG XI with
Mr. Saroj Kumar Sharma, AC to AAG V
Mr. S.Rahman, AC to GA 4
For the BPSC : Ms. Nilu Agrawal & & J.K.Sinha,
Advocates
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7. 11.07.2011 Heard learned Counsel for the petitioner and the learned Counsel for
the State.
These two writ applications have been filed by one petitioner. CWJC
No. 6193 of 2010 seeks the relief to be considered for promotion on the post
of Superintending Engineer (Civil) Road Construction Department. The
petitioner holds the post of Executive Engineer (Civil). He questions the
consideration of his candidature in sealed cover on the ground that on the
date when consideration was being done there was no departmental
proceeding pending against him much less had any charge sheet been
issued. The respondents in their counter affidavit allege that prior to the date
of the DPC a show cause notice had been issued to the petitioner which
ultimately culminated into a charge duly replied to whereafter a final order of
punishment stopping one increment with non cumulative effect has been
passed on 11.6.2010. In CWJC No. 7054 of 2011 the petitioner questions
the latter order.
The question whether the issuance of a show cause notice prior to
consideration of his case for promotion was justified or not justified for
resorting to the sealed cover procedure need not be gone into in view of the
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fact that a final order of punishment has been passed. If the punishment was
found sustainable, the petitioner may not have an arguable case to be
considered for promotion. If the punishment order was not sustainable the
petitioner ought to succeed.
Learned Counsel for the petitioner submits that the show cause
notice culminating into an order of punishment states that in the
Measurement Book he had recorded the length, breadth and height of the
stone chips observing therein that it had been measured. A sum of Rs.
36,08,032/- was withdrawn from the Treasury. The stocks were scattered
and were directed to be congregated for measurement. The stock was re-
measured thereafter on 1.4.2008 by the Inspecting Team which found the
chips in accordance with the entries in the Measurement Book. The charge
therefore was that the petitioner made fictitious entry in the Measurement
Book in conspiracy with his subordinates contrary to the procedure in the
P.W.D. Code. It is submitted that if after congregation of the stone chips the
entries made in the Measurement Book were confirmed the charge itself is
non est. Secondly, there was no charge with regard to payment being
released without Sieve Analysis of the stone chips. The last submission is
that as the Executive Engineer the petitioner had alone been singled out for
discriminatory treatment when the Junior Engineer and the Assistant
Engineer who were responsible for carrying out measurement had not been
proceeded with even though the allegations were of having acted in
conspiracy with the subordinates.
Learned Counsel for the State is unable to demonstrate from the
show cause notice why it should not be held as being passed on non-
existent facts. If the stone chips were scattered earlier and on congregation
any discrepancy may have been found leading to a finding of erroneous
entries in the Measurement Book it was a different matter. But if after
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congregation the earlier entries made in the Measurement Book based on
measurement of the stone chips in a scattered form tallied the charge sheet
is based on non existent grounds.
Counsel for the State is further unable to demonstrate from the show
cause notice that the petitioner had been queried for releasing payment
without Sieve Analysis of the stone chips. It needs no discussion that if the
impugned order is based on materials beyond the show cause notice it
becomes arbitrary as the delinquent had no opportunity to answer the
allegations.
Dealing with the issue in Tarlochan Dev Sharma Vs. State of Punjab,
(2001) 6 SCC 260 at paragraph 13 it has held as follows:-
“13………. There is nothing in the show-cause notice or the
ultimate order to hold how the act of the appellant had
“obstructed the working of the Municipal Council” or was
“against the interest of the Council”. We are, therefore,
clearly of the opinion that not only the principles of natural
justice were violated by the factum of the impugned order
having been founded on grounds at variance from the one in
the show-cause notice, of which the appellant was not even
made aware of, let alone provided an opportunity to offer his
explanation, the allegations made against the appellant did
not even prima facie make out a case of abuse of powers of
the President. The High Court was not right in forming an
opinion that the appellant was persuading the High Court to
judicially review like an appellate court the finding arrived at
by the competent authority. The present one is a case where
the impugned order is vitiated by perversity. A conclusion of
abuse of powers has been drawn from such facts wherefrom
such conclusion does not even prima facie flow. The
impugned order is based on non-existent grounds. It is
vitiated by colourable exercise of power and hence liable to
be struck down within the well-settled parameters of judicial
review of administrative action.”
The show cause notice specifically alleges that the petitioner acted in
collusion and conspiracy with his subordinates. The respondents in CWJC
No. 6193 of 2010 have filed a supplementary counter affidavit on 13.1.2011
to justify denial of promotion due to the aforesaid punishment. They have
themselves enclosed as Annexure „A‟ to the counter affidavit the show
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cause notice which speaks of petitioner having acted in conspiracy. The
respondents then confront the Court with the final order but refuse to place
proper materials before the Court with regard to alleged finding mentioned in
the show cause notice of conspiracy and the treatment meted out to the
subordinates. The Court is therefore satisfied that the impugned order dated
11.6.2010 is not sustainable. It is accordingly set aside.
No other ground has been urged for denial of consideration for
promotion to the petitioner on the post of Superintending Engineer (Civil).
Consequently the respondents are now required to consider the case
of the petitioner in accordance with law preferably within a maximum period
of four months from the date of receipt and/or presentation of a copy of this
order.
Both the writ applications stand allowed.
Snkumar/- (Navin Sinha,J.)