IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 9962 of 2010 1. AKHILESHWAR SHARMA, S/O LATE MADHESHWAR SHARMA, R/O MOHALLA NAWAGARHI, P.S. CIVIL LINES, DISTRICT- GAYA. 2. UMESH MISHRA, S/O LATE MAHIMA NAND MISHRA, R/O MOHALLA SHIV SHAKTI,P.S. CIVIL LINES,DISTRICT- GAYA. Versus 1. THE STATE OF BIHAR. 2. THE COMMISSIONER, PRIMARY EDUCATION, BIHAR, PATNA. 3. THE DIRECTOR, PRIMARY EDUCATION, BIHAR, PATNA. 4. THE DISTRICT MAGISTRATE, GAYA. 5. THE SUPERINTENDENT OF EDUCATION,GAYA. *** For the petitioners : Mr Sanjeev Kumar, Advocate For the S t a t e : M/s Md Fazal Rahman, GP 6 & Md Obaidullah, AC to GP 6 *** 2 16.07.2010 In this writ application, the two petitioners challenge the order as contained in Memo No 2279 dated 06.05.2010 of the District Superintendent of Education, Gaya by which it has been held that amongst others, the two petitioners have wrongly been granted promotion. It may be stated at the very outset that both the petitioners have already superannuated long before even the notices were issued on 29.03.2010 in this regard. Petitioners challenge the order by which not only it has been held that they were wrongly granted B Sc trained scale but orders have been passed to refix their salary as well as pension and to recover the excess amount paid to them as a consequence of alleged wrong promotion. It seems that a general review of promotions granted in the year, 1993-1995 was undertaken recently after more than a decade and a half. It is alleged that on 29.03.2010, notices were issued to the petitioners. Petitioners had already retired more than a year back. 2 Notices were not served upon them. Without waiting further, the order, as impugned, has been passed. Learned counsel for the petitioners states that the order, on the face of it, is bad and cannot be sustained firstly on the ground that it has been passed without granting adequate opportunity to the petitioners to represent against any concrete allegation in that regard. Secondly, a reference to the order itself would show that it is based on two premises. Firstly, that petitioners were given B Sc trained scale in the year, 1995 without following reservation policy or roster. Petitioners submit that this aspect is beyond their control. It was for the Department to take necessary steps in this regard and if they have faulted for any reason, petitioners cannot be penalised and that too after a decade and a half and that too by diminishing the pensionary benefits. Their second submission is that the second ground is, as apparent from the order, that in 1987, the petitioners had passed the training examination and had wrongly upgraded themselves in the gradation list in the year, 1987. Petitioners point out that this is factually incorrect inasmuch as both the petitioners got the training way back in 1968 and 1973 respectively. Thus, it is submitted that for mala fide reasons and without ascertaining the fact, the orders have been passed only to harass and humiliate the petitioners. It is further pointed out that if indeed petitioners were given promotion wrongly then it were the officers, who did the wrongful act, were more, if not equally, responsible. No action whatsoever is proposed against those officers. Petitioners, who had nothing to do with it, are being penalised. Having considered the matter, in my view, the order cannot be sustained on the simple ground that it has been passed without due 3 notice to the petitioners. Mere issuance of notice is not sufficient. It must be shown that the notice is duly served. Issuing notice is not a mere paper formality. It is a requirement of basic principles of natural justice. Thus found, the order, as impugned, has been passed without adequate notice to the petitioners and, as alleged by the petitioners, on wrong factual basis. Thus, the order cannot be sustained. The order is set aside. If the authorities are so advised, they may proceed against the petitioners upon proper notice issued to them clearly stating the facts constituting the allegations by which it is alleged that petitioners had wrongfully got themselves promoted and upon cause being shown, the authorities can proceed to pass appropriate orders giving cogent reasons in accordance with law. The writ application is, thus, disposed of. M.E.H./ (Navaniti Prasad Singh)