IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1569 of 2011
In
Civil Writ Jurisdiction Case No. 7557 of 2005
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Suresh Kumar Sinha Son of Late Bachoo Singh Resident of Village-
Dhondhary, P.S. Ghosi, District-Jehanabad.
.... .... Petitioner/Appellant
Versus
1. The State of Bihar.
2. The Secretary, Personnel and Administrative Reforms Department, Govt.
of Bihar, Patna.
3. The Deputy Secretary to the Government Personnel and Administrative
Reforms Department, Government of Bihar, Patna.
4. The Director General of Police, Old Secretariat, Patna.
5. The D.I.G., Muzaffarpur.
6. The Additional Director General, Crime Investigation Department, Govt.
of Bihar, Patna.
.... .... Respondents/Respondents
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Appearance :
For the Appellant : Mr. Dinu Kumar, Advocate
For the Respondents : Mr. P.N. Shahi, AAG-14 with
Mr. Mritunjay Kumar, A.C. to AAG-14
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
2. 08-11-2011 Feeling aggrieved by the judgment and order dated
18th July 2011 passed by the learned single Judge in above
C.W.J.C. No. 7557 of 2005, the writ petitioner has preferred the
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present Appeal under Clause 10 of the Letters Patent.
The appellant, a Government servant was, by order
dated 9th June 2003 placed under suspension. While under
suspension, by order dated 3rd September 2004, the appellant was
promoted as an Under Secretary to the Government. The said
order of promotion was later recalled on 27th April 2005. Feeling
aggrieved, the appellant filed above C.W.J.C. No. 7557 of 2005
under Article 226 of the Constitution.
The learned single Judge has noted that the impugned
order of recall of the order of promotion was made without
affording opportunity of hearing to the appellant. The order is
made in violation of principle of natural justice. However, keeping
in view the further developments that the criminal prosecution
lodged against the appellant has been quashed in exercise of power
conferred by Section 482 Cr.P.C.; the order of suspension has been
revoked and; the appellant has been reinstated in service, the
learned single Judge has reserved liberty to the appellant to make
representation before the concerned authority. The concerned
authority has been reserved liberty to make an order afresh as may
be required. Feeling aggrieved, the writ petitioner has preferred the
present Appeal.
Learned advocate Mr. Dinu Kumar has appeared for
the appellant. He has submitted that the impugned order dated 27th
April 2005 of recall of the order of promotion was made in
violation to the principle of natural justice and was thus void ab
initio. The learned single Judge should have set aside the order
dated 27th April 2005 and revived the order of promotion dated 3 rd
September 2004. He has submitted that the representation and
reconsideration afresh will not compensate the prejudice caused to
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the appellant. In support thereof, he has relied upon the judgments
in the matters of Raj Kishore Singh v. State of Bihar, [(2006 (4)
PLJR 71]; and of Ramnandan Prasad v. State of Bihar, [1983
PLJR 266].
We do appreciate that the impugned order dated 27 th
April 2005 was made in violation of principle of natural justice. It
may be noted that the very order of promotion made on 3rd
September 2004 was wholly illegal as the appellant could not have
been promoted as he was placed under suspension. The
discretionary jurisdiction conferred by Article 226 of the
Constitution cannot be exercised to set aside an order which will
have the effect of reviving a totally illegal order. Besides, the
cancellation of the promotion did not entail civil consequences as
the appellant was already undergoing suspension.
In view of the further development the learned single
Judge has rightly allowed the appellant to make a representation
and has rightly directed the respondents to consider such
representation.
No case for interference is made out.
Appeal is dismissed in limine.
(R.M. Doshit, CJ)
(Birendra Prasad Verma, J)
Pawan/-