IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9671 of 2006 RAM BHAJAN YADAV, son of Shri Khushi Lal Yadav, resident of village Khoir, P.O. Ramnipatti, P.S. Babubarahi, District Madhubani, at present C/o Sri Raj Narayan Yadav, Treasury Assistant Treasury Office, Darbhanga, District Darbhanga … Petitioner Versus 1. THE STATE OF BIHAR 2. The Secretary, Department of Health and Family Welfare, Govt. of Bihar, Patna 3. The Director-in-Chief, Health Service, Bihar, Patna 4. The Regional Deputy Director, Health Services, Darbhanga Division, Darbhanga 5. The Civil Surgeon cum Chief Medical Officer, Darbhanga 6. The In-charge Medical Health Officer, Basic Health Centre, Jale, Darbhanga … Respondents with CWJC No.10016 of 2006 RAM LALIT JHA, son of late Umakant Jha, resident of village Beloun, P.S. Bahera, District Darbhanga … Petitioner Versus 1. THE STATE OF BIHAR 2. The Commissioner cum Secretary, Department of Health and Family Welfare, Govt. of Bihar, Patna 3. The Director-in-Chief, Health Services, Govt. of Bihar, Patna 4. The Civil Surgeon cum Chief Medical Officer, Darbhanga 5. The District Malaria Officer, Darbhanga 6. The Medical Officer In-charge, Benipur (Bahera), Darbhanga … Respondents ----------- 2. 27.8.2010 Having heard counsel for the petitioners in both these cases as also counsel for the State there would be no difficulty in rejecting the prayer of the petitioners in both of them, inasmuch as the issue stands settled by the Division Bench 2 judgment dated 7.7.2005 in L.P.A.No. 448/2005 and its analogous cases. Counsel for the petitioners, however, in both the cases have tried to wriggle out of the aforesaid judgment of the Division Bench by taking a plea that the same will not be applicable in their cases. In this context the submission of the counsel for the petitioner Ram Lalit Jha (C.W.J.C.No. 10016/2006) is that the petitioner herein was not holding a Class IV post nor was ever appointed on the post of Basic Health Worker and therefore, the ratio of the judgment of the Division Bench in the case of Arvind Kumar Yadav (supra) cannot be made applicable. He would also proceed to submit that there was no fraud or misrepresentation on the part of the petitioner and therefore, the earlier promotion given to the petitioner from the post of Surveillance Inspector to the post of Clerk at the behest of the Civil Surgeon cum Chief Medical Officer, Darbhanga would not at least require the petitioner to refund salary of the higher post of Clerk even if the impugned order is not interfered 3 by this Court. He would also highlight the fact that the payment of salary of the petitioner has been stopped from December, 2005 for no rhyme and reason and his representation also filed before the Director-in-Chief has remained pending till date without any order thereon. The concept of promotion in service jurisprudence has a clear connotation that a person can get promoted in a cadre from the lower post to the higher post. In the Health Department, the post of Clerk can be filled up only by two modes, namely, either by direct recruitment from open market or by way of promotion from Class IV employees in terms of the State Government Decision dated 11.2.1985 which requires 50% of post to be filled up after holding departmental examination. Admittedly the petitioners in both the cases were not holding a Class IV post, inasmuch as the petitioner Ram Lalit Jha was appointed on the post of Surveillance Inspector on 1.8.1977 by the District Malaria Officer. It has to be kept in mind that the post of Surveillance Inspector though under the Health Department 4 was under Malaria wing and had a different controlling authority at the district level being the District Malaria Officer. This aspect in fact is also not in dispute in view of the order of the appointment of the petitioner himself dated 2.8.1977 issued by the District Malaria Officer. Now comes to the order of promotion of the petitioner dated 23.7.1982 which has been issued by the Civil Surgeon cum Chief Medical Officer, Darbhanga. It really is a shocking state of affair that a person working in the cadre of employees of Malaria wing was sought to be brought to the general cadre of the Health employees and that too by way of promotion. Admittedly even as per own showing of the petitioner Ram Lalit Jha he was holding a post of Surveillance Inspector in Malaria wing and therefore, his channel of promotion was only available in Malaria Wing but surprisingly he has been promoted by the Civil Surgeon on his own without transfer of services of the petitioner from Malaria to general wing and to top it all it is his case alone which had been considered for promotion. The fact that 5 the petitioner got such a promotion cannot be denied because at the point of time when he was holding the post of Surveillance Inspector his pay scale was Rs. 535-765, whereas after his promotion on the post of Clerk his pay scale was Rs. 580-860. In that view of the matter, the plea of the petitioner that his case becomes distinguishable from the case of Arvind Kumar Yadav (supra) only because he was holding the post of Surveillance Inspector, a Class III post and not a Class IV post of Basic Health Worker in the opinion of this Court would make no difference, inasmuch as the ratio of the aforesaid judgment is if a person earns an illegal promotion he cannot be allowed to either have the benefit of promotion or pay and emoluments drawn on such promotion. That is how the Division Bench has very clearly laid down the law in the case of Arvind Kumar Yadav (supra) by holding as follows: “ It is difficult to accept the aforesaid submission. So far Class III employees are concerned, they in no case could have been promoted from technical cadre to the non- 6 technical cadre and as such their promotion is void aninitio. This apart Class III employees were already holding Class III post and as such there is no question of promotion to the same class. Apart from this other serious irregularities, as stated above, have been noticed and as such, the decision taken by the authority for reversion does not suffer from any illegality. We fully agree with the view taken by the learned Single Judge. So far Class IV employees are concerned, their promotions were also not considered in terms of the statutory provision. The quota for promotion to Class III from Class IV is fixed and procedure has been provided for the same but the same was not followed. This apart all the appointments were made by the Civil Surgeon inspite of the ban of the Government regarding appointment etc. Learned counsel for the appellants further contended that in any case as the appellants have worked on a promotional post, there should not have been an order for recovery of the amount and in this connection they have submitted that the principle of equity applies in their cases. 7 Had there not been any gross illegality giving promotion, we would have considered the matter sympathetically but in a case where there is a flagrant violation of the provision regarding promotion, which is unacceptable and shocking to the conscience, we would not be justified in questioning the order for recovery of the amount.” In view of the aforementioned clear enunciation of law this Court would find it difficult to accept the submission of the counsel for the petitioner Ram Lalit Jha that the case in hand is not covered by the ratio of Arvind Kumar Yadav (supra). As noted above, there were two classes of employee whose reversion was made in the case of Arvind Kumar Yadav and its analogous cases, namely, holder of Class III post who got similar promotion like the petitioner on the post of clerk and also holder of Class IV post who too were promoted on the post of clerk. Thus there was absolutely no difference in the case of the petitioner and the case of Arvind Kumar Yadav (supra). The next submission with regard to recovery part in fact again has to be gone 8 into only in the light of the observation and direction given by the Division Bench in the case of Arvind Kumar Yadav, wherein it was held that where there is a gross illegality in the promotion the authority is entitled to recover the amount. In this case, as noted above, a Surveillance Inspector working in Malaria wing and getting promotion in higher post of clerk in the general wing and that too in isolation cannot be held to be anything but a case of gross illegal promotion. In any event the petitioner was getting salary of 535-765 and therefore, whatever benefit that he could have got by computing in the pay scale of Surveillance Inspector and/or its promotional post under the time bound scheme should be making the petitioner affected to a negligible extent, inasmuch as recovery has to be only made after considering gross illegality in entitlement of the petitioner on the post of Surveillance Inspector and the excess amount drawn by him while holding the post of clerk. There is no answer in the counter affidavit as with regard to stoppage of 9 payment of salary to the petitioner from December, 2005 and if the authorities have withheld the salary of the petitioner only for making recovery from the petitioner that is not permissible because such recovery for a period of almost 20 years of excess amount drawn cannot be recovered by forcing the petitioner to remain without getting payment of salary. In that view of the matter, if the payment of salary of the petitioner has been stopped only on account of recovery of the excess amount drawn by him on the post of clerk the respondent must release payment of salary of the petitioner by computing the total amount to be recovered from the petitioner and subjecting him to a maximum deduction of Rs. 500/- per month by way of instalment for realization of the amount either from the salary or from the pensionary benefit. This aspect of the matter as is said to be pending before the Director-in- Chief of the Health Services, this Court would direct the said authority to decide payment of claim of salary of the petitioner from the month of December, 2005 onwards and 10 if the same has not been paid only on account of either lack of grant of fund or the proposed recovery from the petitioner, an order should be passed immediately for making payment of salary of the petitioner with instalment amount of Rs. 500/- to be recovered from his salary. If however there is some other reason including the petitioner’s not working on the post in question on which he was reverted, the authority, Director-in-Chief, may pass his order indicating the reasons for non-payment of his salary. Such exercise must be completed within a period of three months from the date of receipt/ production of a copy of this order. With the aforementioned observation and direction, C.W.J.C.No. 10016/2006 stands disposed of. Coming to the merits of the other case, C.W.J.C.No. 9671/2006 (Ram Bhajan Yadav), this Court would find that the petitioner’s case is squarely covered by the judgment of the Division Bench in the case of Arvind Kumar Yadav (supra), inasmuch as he too was initially appointed on the post 11 of Basic Health Worker and his promotion also was made from a technical post to non- technical post of clerk, alike the petitioners/appellants in the case of Arvind Kumar Yadav (supra) and others. In that view of the matter, as the facts of the case of the petitioner Ram Bhajan Yadav are identical, the result thereof also must be the same. The fact that the petitioner was not a party would not stand in the way of the respondents in taking action because as noted above the continuation of such promotion was initially made subject matter of a report of C.A.G. which had pointed out the anomaly in grant of such promotion to a large number of employees. It is only when such a wake up call was given that the authorities sought to respond by taking consequential action. That is how the series of writ petition and consequential appeals, as noted in the judgment of Arvind Kumar Yadav (supra) came to be decided by this Court. In that view of the matter, this Court would also find no merit in the second 12 writ application, C.W.J.C.No. 9671/2006 and the same is also dismissed. (Mihir Kumar Jha,J.) Surendra/