JUDGMENT
S.J. Mukhopadhaya, J.
1. This review application has been preferred by the writ petitioner for review/recall of order dated 30th October 1996 passed in C.W.J.C. No. 2776 of 1988. The aforesaid writ petition was initially preferred against the decision of the Bihar Administrative Tribunal, Patna dated 25th January, 1988, passed in Service Case No. 56/ 86, whereby the Tribunal rejected the application of the petitioner. During the pendency of the writ petition, the time-bound promotion granted to the petitioner was cancelled, vide Memo No. 11 dated 4th January, 1993, which was challenged by the petitioner in the writ petition.
2. The writ petition was taken up for hearing on 30th October, 1996, when no person appeared on behalf of the petitioner. For the said reason, this Court after hearing the Counsel for the Respondents, taking into consideration the fact as pleaded in the writ petition, supplementary affidavit and amendment petition, dismissed the writ petition.
3. According to the petitioner, he was appointed on 17th September, 1990, as Operation Theatre Incharge-cum-X-ray Technician in the then scale of Rs. 200-350/- in Shrikrishna Medical College and Hospital, Muzaffarpur, which was a private Medical College at that time. Since 13th February, 1974, he continued to work exclusively as senior X-ray Technician, when his pay was raised to Rs. 284-372 with effect from 1-1-197S. The petitioner, while in service, enhanced qualification and passed B.Sc. part-I examination and also obtained short-term Radiographer’s training for three months from Christian Medical College and Hospital, Velore. One year Radiography training was subsequently completed from Darbhanga Medical College and Hospital during 1979-80.
4. The Medical College, in question, was taken over by the State from 1st October, 1979, vide Latter No. l/CL-199-79-1348(1) dated 9th June, 1980, in pursuance of Bihar Private Medical College Taking Over Act, 1978 (Act No. 5 of 1978), the service of the petitioner was also taken over since then (1st October, 1979).
5. After taking over the service of the petitioner, he continued to receive salary from the State, but it appears that no final decision was taken relating to absorption of petitioner as Senior X-ray Technician. In the aforesaid background, a Service Case No, 56/86 was preferred, by petitioner for direction on the Respondents to sanction a post of Senior Xray Technician for Shrikrishna Medical College and Hospital, Muzaffarpur with effect from 1st October, 1979, for posting and absorption of the petitioner against the said post and for payment of consequential benefits. In the said case, while reliance was placed on behalf of the petitioner on Section 3(1) of Taking-Over Act, 1978, it was pleaded that the service of the petitioner stood taken over as Senior X-ray Technician with effect from 1st October, 1979, and for that formal order merely requires to be issued.
Reliance was placed on one or other order to show that the petitioner was performing duty of Senior X-ray Technician, against a sanctioned post in the private medical College and was entitled to be taken in the service against such post.
6. The learned Tribunal took into consideration the provision of subsections (3) and (4) of Section 6 of the Taking-Over Act, wherein power has been conferred upon the State Government to determine the terms of appointment and other conditions of service of staff of the College, and the interim arrangement to continue till such determination. It further took into consideration the Supreme Court decision in the case of State of Bihar v. Col. Y.K. Singh , wherein the Supreme Court dealt in detail the scope of Section 6 of the same very Act. Taking into consideration the other factor, namely, that the petitioner completed training in Radiography in the year 1979-80 (after Take Over) and that no post of Senior X-ray Technician was sanctioned, rejected the prayer. The learned Tribunal held that creation of a particular post in prerogative of the State Government and the Court cannot direct for the same and further held that the State Government was within its domain to fix the rank of the petitioner.
7. The Counsel for the petitioner relied on one or other enclosures including the photostat copy of the Service Book of the petitioner to show that the petitioner was functioning against a post of Senior X-ray Technician. However, he could not produce any document to show that such post was created by the then Governing Body of the Private Medical College, No such post was sanctioned is also evident from the fact that the petitioner prayed for creation of such post before the Bihar Administrative Tribunal.
8. In the circumstances, no relief can be granted against the judgment of learned Tribunal, in question, on the basis of the Service Book, as sought for.
9. The review application to that extent is fit to the rejected.
10. However, admittedly, the petitioner was granted Selection grade scale by way of time-bound promotion, vide Memo No. 2085 dated 27th November, 1990, during the pendency of the writ petition; his pay was fixed accordingly, vide Annexure-16./A to the writ petition. The said time-bound promotion was cancelled by respondents, vide Memo No. 11 dated 4th January, 1993, and it was ordered to recover the amount, on refixation of pay, which was challenged by petitioner by filing an amendment petition in the writ petition.
11. This Court earlier allowed the prayer for amendment of Relief and passed interim order on 8th February, 1993. However, it appears that on 30th October, 1996, which this Court decided the main writ petition on merit and upheld the order and judgment, passed by the learned Tribunal in Service Case No. 56/86, failed to decide the question relating to the legality and propriety of order of cancellation dated 4th January, 1993. For the said reason, the review application was heard in detail in respect of the order of cancellation.
12. Admittedly, the petitioner was granted time-bound promotion with effect from 1-4-1981, vide Memo dated 27th November, 1990. The said order was issued irrespective of judgment passed by learned Tribunal on 25th January 1988, in Service Case No. 56/86. The time-bound promotion was granted taking into consideration the scale of pay as had been allowed by the State, on his absorption under the State. It is not in dispute that the time-bound promotion earlier granted was cancelled, vide order dated 4th January, 1993, without any notice to the petitioner. The refixation of pay has been made by the said order, without allowing the benefit of time-bound promotion to which the petitioner was entitled in view of policy decision of the State circulated vide Finance Department’s Resolution No, 10770 dated 30th December, 1981.
13. It is also not in dispute that irrespective of claim as was made by the petitioner before the Tribunal, he was entitled for one promotion on completion of ten years’ of service, having not granted single promotion.
14. For the reasons aforesaid, the order of cancellation of time-bound promotion dated 4th January, 1993, cannot be held to be legal, particularly, being violative of rules of natural justice.
15. In the result, the writ petition was to succeed partly, so far as the challenge as was made in the amendment petition, and for that the order and judgment, in question, require modification.
16. Accordingly, while I affirm the order and judgment passed by the learned Tribunal; reject the prayer as made in the main writ petition; partly allow the writ petition and set aside the order, contained in Memo No. 11 dated 4th January, 1993 (Annexure-22 to the writ petition. The order and judgment dated 31st October, 1996, passed in C.W.J.C. No. 2776/ 88 stand modified to that extent.
17. The Civil Review application stands disposed of with the aforesaid observations. There shall, however, be no order, as to costs.