IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2184 of 2003 OM NATH PRASAD son of late Mahadeo Prasad, resident of village Sawareji, P. S. Mirganj, District Gopalganj. …. Petitioner. Versus 1. THE STATE OF BIHAR through the Director, Health Services, Government of Bihar Patna. 2. Director-in-Chief Health Services Government of Bihar, Patna. 3. Commissioner-cum-Secretary, Health Medical Education and Family Welfare Department, Government of Bihar, Patna. 4. Regional Deputy Director, Health Services Saran Division, Chapra. 5. Civil Surgeon-cum- Chief Medical Officer, Gopalganj... … Respondents. ----------- 3. 26.07.2010 Heard counsel for the petitioner and counsel for the State. The prayer of the petitioner in this writ petition reads as follows;- “1. That this is an application for issuance of an appropriate writ(s)/order(s)/direction (s) especially in the nature of certiorari to quash the order dated 30.1.2003 issued vide Memo No. 146/(4) by Sri Anil Kumar, Director in Chief, Health Services, Government of Bihar, Patna, whereby and whereunder this petitioner has been awarded punishment of censor and the authorities were directed to keep him free from the financial duty. The petitioner further prays that a writ of mandamus may be issued directing the respondents not to disturb the petitioner from discharging the official duty of accountant as he was earlier warned with regard to the same charges.” 2 Counsel for the petitioner with reference to the aforementioned relief has raised a very small but yet quite effective issue. He would submit that for the same misconduct, the petitioner was already punished by order dated 28.2.2000 as contained in Anneuxre- 5 to the writ petition and therefore he could not have been again subjected to another punishment by the impugned order dated 30.1.2003. In this case, the counter affidavit has been filed on behalf of Civil Surgeon, Chief Medical Officer, Gopalganj who has only said that he cannot make any comment about the impugned order of punishment since it was passed by the Director-in-Chief of the Health Services. One fails to understand the logic of filing of such counter affidavit. Be that as it may from the reading of the order dated 28.2.2000 (annexure-5) with the following statement of fact; ^^ LokLF; funs’kky; fcgkj] iVuk vkns'k LokLF; funs’kky; ds vkns’k Kkikad&749¼22½ fnukad 28&6&99 }kjk Jh vkseukFk izlkn] fyfid] flfoy ltZu dk;kZy; xksikyxat dks jsQjy vLirky] Hkksjs esa inLFkkfir jgdj ,e0 ,l0 Mh0 ls vfu;fer 3 :Ik ls nok dz; esa lgHkkfxrk djus ds vkjksi esa fuyafcr fd;k x;k Fkk ,oa ladYi Kkikad&750¼22½ fnukad 28&6&99 }kjk muds fo:) foHkkxh; dk;Zokgh lapkfyr dh xbZ Fkh A lapkfyr foHkkxh; dk;Zokgh esa lapkyu inkf/kdkjh }kjk fn, x, vf/kdze ds vkyksd esa fopkjksijkUr Jh vkseukFk izlkn dks bl vkns’k fuxZr dh frfFk ls fuyacu ls eqDr djrs gq, vius in ds nkf;Ro dk fuokZgu ftEesokjh iwoZ rjhds ls ugha djus gsrq dM+h psrkouh nh tkrh gS] ftldh izfof"V budh lsokiqLr esa dh tk;xh A g0& fot; ‘’kadj flag] funs’kd] izeq[k LokLF; lsok,a] fcgkj] iVuk Kkikad&22@vk05&44@99@221¼22½@Lok0]iVuk]fnukad 28&2&2000 and the subsequent impugned order contained in Memo no. 146 dated 30.1.2003 (Annexure-1) also containing the same statement of fact barring the last line ^^funs’kky;] LokLF; lsok;sa] fcgkj] iVuk A vkns’k Jh vkseukFkk izlkn] fyfid flfoy ltZu dk;kZy;] xksikyxat dks jsQjy vLirky Hkksjs esa inLFkkfir jgdj ,e0 ,l0 Mh0 ls vku;fxr :Ik ls nok dz; esa lgHkkfxrk djus ds vkjksiksa esa funs’kkyh; vkns’k Kkikad&749¼22½ fnukad 23&6&99 }kjk fuyafcr fd;k x;k Fkk ,oa ladYi Kkikad&750¼22½ fnukad 28&6&99 }kjk muds fo:) foHkkxh; dk;Zokgh pyk;h x;h A lapkyu inkf/kdkjh }kjk izkIr djk;h x;h vf/kxe ds leh{kksijkUr Jh izlkn dks funs’kkyh; vkns’k Kkikad&221¼22½ fnukad 28&2&2000 }kjk fuyacu ls eqDr djrs gq, mUgsa vius in ds nkf;Ro dks ftEesnkjhiw.kZ rjhds ls ugha fd;s tkus laca/kh dM+h psrkouh nh xbZ Fkh] ftldh izfof"V muds lsok iqLr esa fd;s tkus dk vkns’k fn;k x;k Fkk A ,e0 ,l0 lMh0 ls nok dz; esa Jh izlkn }kjk fd;s x;s vfu;ferrk dk ljdkj }kjk iquoZykspu fd;k x;k A iwoZ leh{kksijkar Jh vkseukFk izlkn ds fo:) fuEukafdr n.M fu/kkZfjr fd;k tkrk gS %& ¼1½ Jh izlkn dks fuUnu dh ltk nh tkrh gS A ¼2½ mUgsa foRrh; dk;ksZ ls eqDr j[kk tkrk gS A g0& vfuy dqekj] funs’kd izeq[k] LokLF; lsok;sa] fcgkj] iVuk A 4 Kkikad&22@vk05&44@99@146¼4½@Lok0] iVuk] fnukad 30&1&2003** It would thus become clear that the once the petitioner was subjected to a departmental proceeding and an order of punishment was passed on 28.2.2000, the respondents had no authority in law to reopen such concluded proceeding by punishing the petitioner again for the same misconduct. That is absolutely not permissible and in fact prohibited by Article 20(2) of the Constitution of India. Counsel for the State would also not be in a position to show any such power of review vested in the Government by which the earlier order of punishment passed against the petitioner could be enhanced. Earlier the petitioner was punished by way of only warning and the same was substituted by censure as also permanent disassociation from exercising financial power. As noted above, the impugned order by way of review in a concluded departmental proceeding by the order of punishment dated 30.1.2003 is/was not permissible in law inasmuch as power of review is a creature of statute but in the relevant Bihar Civil Service 5 (Classification Control and Appeal) Rules there is no such power of review. This writ application therefore must succeed on this ground alone. In the result, this writ petition is allowed and the impugned order as contained in Annexure-1 is quashed. There would be, however, no order as to costs. kanchan (Mihir Kumar Jha, J.)