IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3468 of 2003 1. Barhu Paswan, Son of Bhagera Paswan, Resident of Village Sawarchak, P.S. Naubatpur, District Patna. 2. Yamuna Prasad, Son of late Budhu Paswan, Resident of Village Saidbarhi, P.S. Chandi, District Nalanda. 3. Yogendra Prasad Singh, son of late Radhe Krishna Singh, Resident of Village Kirpaganj, P.S. Silao, District Nalanda. 4. Badri Prasad, Son of Sri Shukhan Singh, Resident of Village Manjhaitha, P.S. Rajgir, Dist. Nalanda. 5. Baidya Nath Singh, Son of Sri Jiltu Singh, Resident of Village Shahpur, P.S. Sonepur, Dist. Saran. 6. Naresh Prasad, Son of Sri Munni Prasad, Resident of Village Saphi Bujurg, P.S. Tulpatti, District Kushinagar (U.P.). 7. Vijay Kumar, Son of late Shyam Kishore Singh, Village Babhanganwa, P.S. Lakhisarai, Dist. Lakhisarai. ------ Petitioners Versus 1. The State Of Bihar. 2. The Secretary, Health of Family Welfare Department, Government of Bihar, Patna. 3. The Director-in-Chief, Health Service, Bihar, Patna. 4. The Assistant Director, Health Services (Fileria Control), Bihar, Patna. 5. The Fileria Officer, Fileria Control Unit, Bhagalpur. 6. The Fileria Officer, Fileria Control Unit, Gaya. 7. The Fileria Officer, Fileria Control Unit, Patna. 8. The Officer-in-charge, Fileria Control Unit, Hazipur, District Vaishali. ---------- Respondents ----------- 3 04.08.2010 Heard learned counsel for the petitioners and counsel for the State. The prayer of the petitioners in this writ application reads as follows:- 2(i) For quashing the impugned order issued vide Memo No. 44 dated 25.1.2003 under the signature of the Assistant Director, Health Services (Fileria Control), Bihar, 2 Patna, as contained in Annexure-1, by which the order of promotion of the petitioners issued on different date in the year 1992 from the post of Field Worker to the post of Insect Collector/Superior Field Worker/ Laboratory Technician have been cancelled on the ground that the authority, who had granted such promotions, had been divested of the power to grant such promotion. (ii) For quashing the consequential orders issued vide Memo No. 36 dated 1.2.2003 under the signature of the Fileria Officer, fileria Control Unit, Bhagalpur (annexure- 2) in respect of petitioner No.4 as well as Memo No. 39 dated 10.2.2003 issued under the signature of the Fileria Officer, Fileria Control Unit, Gaya (Annexure-3) in respect of petitioner no.3 by which they were directed to hand over charge of the promotional post and to join on the post, from which they were promoted. (iii) For holding that the impugned order dated 25.1.2003 is wrong and illegal because the same has been issued after a lapse of more than 10 years of the issuance of order of their promotion and also because in the show cause notice issued vide Memo No. 659 dated 29.11.2001 (Annexure-6), no such ground was taken by the respondents that the authority, who had granted 3 promotion to the petitioners, was divested of the power to grant such promotions.” With respect to the aforementioned prayer, learned counsel for the petitioners would submit that true it is that the petitioners were subjected to a show-cause notice but there was no ground that the promotion given to the petitioners earlier was passed by incompetent authority. He would further submit that in the show-cause notice, there was also no indication that the promotion of the petitioners would be cancelled from retrospective effect. Accordingly, counsel for the petitioner would submit that the impugned order cancelling the promotion of the petitioners with retrospective effect cannot be sustained as the same has been based on non-est and non- existent material. In the opinion of this Court, once this fact is admitted that the Government had divested the local field officials of earlier delegation of power of making appointment/promotion on 18.5.1992, any action taken by the said authority after that 4 date will have to be held to be without jurisdiction and to that extent, the impugned order recording such reason cannot be faulted with in law. True it is that the show-cause notice did not give the petitioners this very reason but then that reason about which there is no denial in the writ application that the prescribed procedure for promotion was also not followed. Therefore, even if on technical ground the order is quashed and matter is remitted, the result would be the same that the petitioners’ promotion made by an incompetent authority without following the prescribed procedure would still not be sustained. In fact, when this writ application was filed on 4.4.2003 and there was also no stay to such order cancelling promotion of the petitioners and the petitioners have continued to work on the reverted post for last seven years and thus useful purpose would now be served by remitting the matter back for re-examining this issue of cancellation of promotion of the petitioners. Unfortunately, counsel for the 5 State, in absence of instruction, also has not been able to inform this Court as to whether the petitioners’ promotion as entitled in law was ever considered again after the impugned order was passed. It goes without saying that the petitioners had a right of being considered for promotion against a higher post and therefore, even if their earlier order of promotion was found to be bad and cancelled after they had continued working on the promoted post for almost ten years, the authority cancelling such promotion was still under obligation to re- consider the case of their promotion at least from the due date. Counsel for the petitioners, in fact, has also got no instruction as to whether during pendency of this writ application, such promotion of the petitioners have been reconsidered. In that view of the matter, this Court would direct the respondents that if the case of the petitioners has not been already considered for promotion, such an exercise must be completed within a period of six months from the date of 6 receipt/production of a copy of this order and a decision be taken as with regard to the promotion of the petitioners at least from the date they had become entitled for such consideration or such promotion was allowed to their juniors. With the aforementioned observation and direction, this application is disposed of. Rsh (Mihir Kumar Jha, J.)