IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8994 of 2010 RAGHUBIR MOCHI S/O LATE FOUDAR MOCHI R/O VILL & P.O.NABANI, P.S.JHANJHARPUR, DISTT-MADHUBANI Versus 1. THE STATE OF BIHAR 2. PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT GOVERNMENT OF BIHAR, PATNA 3. DEPUTY SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT GOVERNMENT OF BIHAR, PATNA 4. DIRECTOR , HIGHER EDUCATION , HUMAN RESOURCES DEVELOPMENT DEPARTMENT GOVERNMENT OF BIHAR, PATNA 5. CHAIRMAN CUM MANAGING DIRECTOR MAITHILI ACADEMY, SHIVPURI, PATNA-800023 6. SHYAM NARAIN KUMAR S/O NOT KNOWN R/O 29, KAUTILYA NAGAR, VIDHAYAK COLONY, P.S.GARDANIBAGH, DISTT-PATNA ----------- 03. 28.06.2010 Heard learned counsel for the petitioner and the counsel for the Maithili Academy, Shivpuri, Patna(hereinafter referred to as the Academy). 2. Petitioner has filed this writ application for setting aside the order dated 5.4.2010 passed by the Director, Higher Education, Annexure-14, whereudner promotion of the petitioner on the post of Assistant Director in the Academy has been directed to be cancelled. 3. By filing counter affidavit counsel for the Academy has justified the aforesaid order dated 5.4.2010 and submitted that in compliance of the orders of the Director, Higher Education petitioner was given show cause notice asking him to explain as to why his promotion on the post of Assistant Director be not cancelled as his reply was not found satisfactory. The promotion of the petitioner on the post of Assistant Director has been cancelled under order bearing memo No.40/2010 dated 6.5.2010, Annexure-C to the counter affidavit. - 2 - 4. Counsel for the petitioner states that show cause notice was served on the petitioner in compliance of the impugned order itself after the decision to cancel his promotion on the post of Assistant Director was already taken by the Director, Higher Education, as such, the post decisional hearing has no meaning as when the superior authority having already taken the decision to cancel the promotion of the petitioner there is hardly any discretion left in the Chairman-cum-Director of the Academy to apply his judicial mind in the matter. 5. Counsel for the Academy, however, disputes the aforesaid submission of the counsel for the petitioner. He states that promotion was allowed to the petitioner on the post of Assistant Director by the Academy and thereafter approval was being sought from the Directorate. In response whereto the impugned order dated 5.4.2010 was received and as the Directorate did not approve of the promotion granted to the petitioner his promotion had to be cancelled. The order granting promotion to the petitioner on the post of Assistant Director in the Academy is dated 4.5.2000 and is contained in Annexure-3 to this application, perusal whereof indicates that thereunder petitioner was allowed promotion on the post of Assistant Director but in the original scale of Assistant and not in the scale of Assistant Director. Later petitioner was allowed the scale of Assistant Director under office order dated 28.6.2006, Annexure-4, perusal whereof, however does not indicate that grant of scale of the promoted post of Assistant Director to the petitioner is subject to further - 3 - approval by the Directorate. 6. Counsel for the Academy, however with reference to the proceedings of the Executive Committee dated 11.3.2000 and 22.2.2002, Annexures-A and B submitted that doubt was created in the manner in which petitioner was granted promotion on the post of Assistant Director and thereafter matter was referred to the Directorate and the scale granted to the petitioner and others of the promoted post was cancelled under office order bearing Memo No.105/07 dated 11.4.2007, Annexure-9. The Directorate having examined the matter has issued the impugned direction contained in letter dated 5.4.2010 asking the Academy to cancel the promotion granted to the petitioner. 7. Having heard counsel for the petitioner and the Academy, it is quite evident that the impugned order dated 5.4.2010 directing cancellation of the promotion of the petitioner has been passed by the Director, Higher Education without giving the petitioner any opportunity of being heard, as such, the order dated 5.4.2010, Annexure-14 is quashed. The office order dated 6.5.2010, Annexure-C to the counter affidavit has been passed after notice to the petitioner but notice was given only to complete the formalities of complying the principles of natural justice as decision to cancel the promotion of the petitioner having already been taken on 5.4.2010, hearing was of no consequence, the subsequent order dated 6.5.2010, Annexure-C is also quashed. Petitioner is directed to appear before the Director, Higher Education with direction to submit his representation justifying the promotion granted to him in the light of the resolution of the - 4 - Executive Committed dated 11.3.2000 and other resolution dated 22.2.2002, Annexures-A and B and the Director should pass fresh order in the light of the submission of the petitioner made in his representation. In case the Director maintains that petitioner was granted erroneous promotion then in such circumstances, petitioner should refund the entire amount which he has drawn in the light of office order dated 28.6.2006, Annexure-4 granting the petitioner scale of the post of Assistant Director. Petitioner should appear before the Director, Higher Education as early as possible, in any case within two weeks from the date of receipt of this order, requisition wherefor should be filed today itself. 8. The writ application is, accordingly, disposed of. Rajesh/ (V.N. Sinha, J.)