IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1944 of 2009 SHAFIQUE ALAM HINDUSTANI, SON OF SRI ALFU MIAN, RESIDENT OF VILLAGE – KAYAMGANJ, P.O. & P.S. – MAKHDUMPUR, DISTRICT – JEHANABAD, AT PRESENT POSTED AS SANITARY INSPECTOR AT PRIMARY HEALTH CENTRE, FATEHPUR, DISTRICT – GAYA …………. PETITIONER VERSUS 1. THE STATE OF BIHAR 2. THE COMMISSIONER AND SECRETARY, HEALTH DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3. THE DIRECTOR-IN-CHIEF, HEALTH SERVICES, GOVERNMENT OF BIHAR, PATNA 4. THE REGIONAL DEPUTY DIRECTOR, HEALTH SERVICES, MAGADH DIVISION, GAYA 5. THE CIVIL SURGEON-CUM-CHIEF MEDICAL OFFICER, GAYA 6. THE INCHARGE MEDICAL OFFICER, PRIMARY HEALTH CENTRE, FATEHPUR, DISTRICT – GAYA …………. RESPONDENTS ----------- FOR THE PETITIONER: MR. S. P. MUKHERJI, SR. ADV. MR. SHANTI PRATAP, ADV. FOR THE STATE: MR. BINAY KUMAR, AC TO GP-13 ***** 05. 01.08.2011 Heard learned Counsel for the petitioner and the State. Petitioner was initially appointed on the post of Contingent Menial, vide Memo No. 1841, dated 26.07.1975 by the Senior Executive Medical Officer and Civil Surgeon, Gaya. He joined at Primary Health Centre, Paraiya, Gaya on 01.08.1975. Petitioner’s case is that in the year 1981, he filed his application before the Director, Health Services, Government of Bihar, Patna for considering his case for promotion to the post of Sanitary Inspector. The Deputy 2 Director, Health Service, Government of Bihar, Patna sent back the representation of the petitioner to the Civil Surgeon, Gaya for taking necessary action, mentioning that since the Civil Surgeon is appointing authority of the petitioner, as such he is competent to consider his representation and pass necessary order of promotion. Petitioner in the meantime also completed his training of Sanitary Inspector, which is indicated in certificate, dated 28.08.1984, issued under the signature of Director, Public Health Institute, Patna. The Civil Surgeon-cum-Chief Medical Officer, Gaya vide Order contained in Memo No. 1134, dated 08.06.1989 passed an order, promoting the petitioner to the post of Sanitary Inspector in the pay-scale of Rs. 580-860/- and he was posted at Primary Health Centre, Konch, Gaya. Subsequently, the promotion given to the petitioner to the post of Sanitary Inspector was cancelled vide order, dated 28.05.1998. Even then, the petitioner continued to discharge his duties on the post of Sanitary Inspector in the pay-scale of Class-IV and till date he is working on that post. This application has been filed by the petitioner for quashing the order, dated 28.05.1998, contained in Memo No. 635 (22), issued under the signature of 3 Director-in-Chief, Health Services, Bihar, whereby his promotion to the post of Sanitary Inspector, allowed by the Civil Surgeon-cum-Chief Medical Officer, Gaya vide Memo No. 1134, dated 08.06.1989 has been cancelled. The reason behind challenging the impugned order, cancelling the petitioner’s promotion, is that in a similar circumstance in the case of Shyam Sundar Sharma (C.W.J.C. No. 8762 of 2003) and Rajeshwar Prasad (C.W.J.C. No. 8969 of 2002), the orders, cancelling promotion to the post of Sanitary Inspector by the Director-in-Chief, were quashed. In their cases also, the promotion given to them to the post of Sanitary Inspector by Civil Surgeon-cum-Chief Medical Officer, had been cancelled on the ground that the post of Sanitary Inspector, being of State Cadre, the Civil Surgeon was not competent to pass any order of promotion. However, Writ Applications were decided and the impugned orders, cancelling promotion, were quashed on the ground that the post of Sanitary Inspector became of State Cadre post only in the year 1993. Prior to that, the Civil Surgeon-cum-Chief Medical Officer was a competent authority for passing such orders, as the post of Sanitary Inspector was a District Cadre Post. 4 Petitioner, admittedly, was promoted by the Civil Surgeon-cum-Chief Medical Officer in the year 1989 and at the relevant time, the post of Sanitary Inspector was a District Cadre post. The post being of District Cadre, Civil Surgeon-cum-Chief Medical Officer was competent for passing any order of promotion. On this very ground C.W.J.C. No. 8762 of 2003 and C.W.J.C. No. 8969 of 2002 had been allowed. In those Writ Applications, Respondents were directed to allow the petitioner to continuing on the post of Sanitary Inspector with all consequential benefits. I find that issue has already been settled. Despite this fact, in the Counter Affidavit, filed on behalf of the Director, Health Services, Government of Bihar, Patna, Respondent No. 3, it has been stated that petitioner’s promotion was cancelled, since the Civil Surgeon was not a competent person for passing any order of promotion for the reason that Sanitary Inspector’s post is a State Cadre post. This statement is completely against the Government’s own notification / order. Sanitary Inspector’s post became State Cadre post in the year 1993. Any subsequent notification could not have been any effect on a promotion, which was given prior to coming into force of such notification, 5 especially when such promotion order had been passed by a person, who was competent to pass such order at the relevant time. For these reasons, the order, dated 28.05.1998, contained in Memo No. 635 (22), issued under the signature of Director-in-Chief, Health Services, Government of Bihar, Patna, cancelling promotion of petitioner to the post of Sanitary Inspector, is quashed. Petitioner is still continuing on the post, discharging his duties, but receiving salary of Class-IV employee, a direction is issued for making payment of entire arrears of salary to the petitioner for the post to which he was promoted in the year 1989, and even after cancellation, continued on the post. Accordingly, this application is allowed. SKM (Mridula Mishra, J.)