CIVIL WRIT JURISDICTION CASE No. 9946 OF 1992 ---- In the matter of an application under Articles 226 and 227 of the Constitution of India SWARUP LAL RAM, SON OF JANU MOCHI, RESIDENT OF VILLAGE PAHEPUR, P.S.MOFASSIL, DISTRICT SAMASTIPUR …Petitioner Versus 1. STATE OF BIHAR THROUGH THE SECRETARY, HEALTH MEDICAL EDUCATION AND FAMILY WELFARE, NEW SECRETARIAT, PATNA. 2. JOINT SECRETARY, HEALTH DEPARTMENT, GOVERNMNT OF BIHAR, NEW SECRETARIAT, PATNA. 3. CIVIL SURGEON-CUM-CHIEF MEDICAL OFFICER, SAMASTIPUR. …Respondents ------ For The Petitioner: Mr. Bipin Kumar Sinha For The Stat :Mr.Anil Kr. Verma, AC to SC 3 P R E S E N T THE HON'BLE MR. JUSTICE NAVIN SINHA THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL ----- Navin Sinha & K.K.Mandal,JJ Heard learned counsel for the petitioner and learned counsel for the State. 2. A Counter affidavit has also been filed on behalf of respondent no.3. 3. The petitioner was working on the post of Health Worker in the scale of Rs.950-1075/-. On 27.8.1991, he was posted as Clerk in the scale of Rs.1200-1800/-. The counter affidavit of the respondent acknowledges the claim of the petitioner that the posts of Health Worker and Clerk are both class - 2 - III posts. If both the posts are in the same class, the question of promotion does not arise. In the same grade, the pay scale may be different depending on the nature of the duty. Therefore, when the petitioner has been assigned the duty of a Clerk his pay scale changed. The nomenclature “promotion” used in the impugned order is perhaps not very appropriate when the parties also have proceeded on that basis. There can be no promotion from class III post to class III post. The pay scale may only get enhanced in consequence of the change in the nature of duties. 4. It is not the case of the respondents in the counter affidavit that the petitioner was not qualified or fit to hold the post of Clerk. The edifice of the counter affidavit is that cadre for Health Workers and Clerks are different and, therefore, the cadre of the petitioner could not have been changed. The respondents in their counter affidavit appear to be mixing up issues. It is either a case of illegal promotion or it is a case of an incorrect change of cadre. We have already held that there has been no promotion and only the pay scale changed. It is not the case of the respondent in the counter affidavit that there was no vacancy in the cadre of Clerks the day the petitioner was assigned the duty of Clerk in the higher pay scale. Had that been the case perhaps the matters may have been viewed differently. 5. The petitioner specifically contends in the writ application that in being assigned the scale of a Clerk, his case was duly considered by a Committee constituted for that - 3 - purpose consisting the Civil Surgeon, Samastipur, Welfare Officer, Samastipur and a nominee of the Collector. Dealing with these averments in paragraph 6 of the writ petition, the respondent in paragraph 7 of the counter affidavit preferred to maintain a studied silence and do not deny the averments. 6. The petitioner was given the rank of Clerk in higher pay scale by the Civil Surgeon. We find it very peculiar that it was the Civil Surgeon who issued the show cause notice that he was not competent to pass the order without any disclosure of the respondents for the incompetence when the counter affidavit also does not disclose any reasons for incompetence of the Civil Surgeon. There is no pleading with regard to any Government Instruction/Circulars/Rules of the incompetency of the Civil Surgeon. We further find it very peculiar that the Civil Surgeon who was to consider such promotion by a Committee has stated in the show cause issued by him in March, 1992, asking the Government servant for disclosures with regard to the Committee without showing specific assertion in the show cause that no Committee had been constituted but only asking the petitioner to disclose the details of the Committee. In effect, the show cause notice also does not deny that a Committee was constituted. The negative language of the show cause notice persuades this Court to hold as such: 7. The flip-flop manner in which the respondents have acted also persuades this Court to interfere. The - 4 - petitioner is given a higher pay scale in the same grade. He was then issued a show cause notice. After consideration of the same, the order granting the higher pay scale is cancelled to direct the petitioner to continue in higher scale when suddenly without referring to this order of cancellations the original order giving the higher scale is again cancelled. 8. This Court while admitting the writ application had directed that there shall be no recovery from the salary of the post of Clerk from the petitioner but that the order of reversion shall abide by the result of the application. 9. The writ petition succeeds. The petitioner is not liable to make any refund and on the contrary is entitled to the full scale of the post of Clerk from the date of impugned order dated 19.8.1992 to be complied with within a maximum period of three months from the date of receipt/production of a copy of this order. 10. The writ petition stands allowed ( Navin Sinha ) ( Kishore K. Mandal ) Patna High Court, Dated 23rd November, 2009 HR/NAFR