IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1702 of 2010 Uday Prasad S/O Late Dhannu Ram R/O Vill.- Mustafabad, P.S.- Rampur, Distt.- Gaya. ......Appellant/Petitioner Versus 1. The State Of Bihar. 2. The Commissioner and Secretary Health Department, Govt. Of Bihar, Patna. 3. The Director-In-Chief Health Services, Govt. Of Bihar, Patna. 4. The Deputy Director, Health Services (Transport), Karamshala, Gulzarbagh, Patna. 5. The Regional Deputy Director, Health Services, Magadh Division, Gaya. 6. The District Magistrate, Jehanabad. 7. The Civil Surgeon-Cum-Chief Medical Officer, Jehanabad. 8. The Civil Surgeon-Cum-Chief Medical Officer, Gaya. 9. The In-Charge Medical Officer Primary Health Centre, Karpi (Arwal). .........Respondents/Respondents ----------- 02 26.07.2011 This Letters Patent Appeal has been filed by the appellant/petitioner, challenging the judgment passed by the learned Single Judge in C.W.J.C. No. 7855 of 2003 dated 30.08.2010, by which the writ petition of the petitioner has been disposed off, only giving liberty to make a representation with regard to the recovery to be made from the petitioner. But the learned Single Judge left the issue of discrimination, pleaded by the petitioner under para 26 of the writ petition, which has been quoted by the learned Single Judge in the judgment. The anxiety of the argument of the 2 learned counsel for the appellant/petitioner is that the learned Single Judge did not reject the allegation made by the petitioner in para 26 which reads as under:- “That it is quite pertinent to state here that the persons namely Arun Shankar Kumar, Ravindra Kumar, Chandra Shekhar Kumar, Ganesh Kumar and Jagvir Choudhary who are also promoted along with the petitioner pursuant to the decision of the same district establishment committee on the same date are still continuing on class III post and have not been demoted. The respondent authorities have adopted a method of pick and choose and the petitioner has been subjected to hostile discrimination. A counter affidavit has been filed by the State in the writ petition. In para 14 of the counter affidavit, the reply of para 26 has been given. To look the case by open eyes, we reproduce the para 14 of the counter affidavit herein as under:- “In reply to the statement made in paragraph no. 22 to 27 of the writ petition it is stated that full fledged enquiry was conducted before passing the order at annexure-2 after giving proper opportunity of showing cause as such allegations made by the petitioner is wrong and hence denied.” 3 From perusal of para 14, it is proved that the plea of discrimination has not been categorically denied. The defence has been taken by the State that the appointment of the petitioner was illegal and procedure was not followed. If this was a fault in the selection procedure, all selection for promotion ought to have been cancelled. Thus, the appellant/petitioner succeeds on this point that the order has been passed in violation of Article 16 of the Constitution of India. Now, we proceed to deal with the impugned order by which the selection of the petitioner has been cancelled which is at page 34 of the Paper Book of appeal. This is an order passed by the civil surgeon on 21.06.2003. The order refers two letters, one by Chief Secretary Bihar and another by the Secretary Health Department, Government of Bihar. Though, these letters are not on record but since from the order impugned, it is evident that these letters are the basis of the termination in addition to enquiry held, if any, for which a show cause was issued to the petitioner. The order further says that the petitioner could not produce any 4 document relating to his promotion and after enquiry the promotion was found illegal. The Establishment Committee had already taken decision on 22.10.1997, cancelling the promotion on the ground that prescribed procedure was not followed. Accordingly, the Chief Medical Officer, Jehanabad, cancelled the promotion of the petitioner and reverted him to Class IV post. From the averment made in the counter affidavit, it is clear that the selection was made for promotion and illegality was found in selection process. The statement that the selection was made itself proves that the petitioner was duly selected for promotion on 29.04.1995, after two years the Establishment Committee has found that procedure was not completely followed. Since the petitioner was duly selected alongwith others and services of the others have not been terminated except the petitioner. If there was any illegality, even in the process of selection of the petitioner alone, even then since the petitioner was duly selected, he was entitled to the benefit of Clause II of Article 311 of the Constitution of India. 5 Here, in the present case, no departmental enquiry was held and the procedure under Rule 55 of the Bihar Civil Services Classification, (Control and Appeal), 1930, has not been followed. For the reasons recorded above, it is evident that the order of cancellation suffers from manifest error of justice and has been passed in violation of Article 16 and Article 311 (2) of the Constitution of India. Therefore, cannot be sustained in the eyes of law. Thus, the judgment of the learned Single Judge is set aside and the order of cancellation is quashed. Appeal as well as writ petition both are allowed. If any recovery has been made pursuant to the illegal order that shall be paid back to the appellant/petitioner. Safik (Prakash Chandra Verma, J.) (Aditya Kumar Trivedi, J.)