IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11813 of 2000 Birendra Prasad, son of late Umesh Prasad, resident of Mohalla Naya Tola (Bhikhanpur), P.S. Ishak Chak, Dist. Bhagalpur. -------- Petitioner Versus 1. The State of Bihar. 2. The Secretary, Department of Health, Government of Bihar. 3. The Director-in-Chief, Department of Health, Government of Bihar. 4. The Civil Surgeon-cum-Chief Medical Officer, Bhagalpur. 5. Ram Krishna Sahay, son of name not known, at present posted as Head Clerk in the office of Civil Surgeon-cum-Chief Medical Officer, Bhagalpur. 6. Braj Mohan Prasad Yadav, son of name not known, at present posted as Head Clerk in the office of Additional-Chief Medical Officer, Bhagalpur. 7. Mukteshwar Prasad, son of name not known at present posted as Clerk at District Immunition Officer, Bhagalpur. --------- Respondents ----------- 5 20.09.2011 Heard Mr. Siyaram Shahi, learned counsel for the petitioner and Mr. Prabhakar Tekriwal, learned GA-1 for the State. Despite of service of notice, no one has appeared on behalf of Respondent no. 5, 6 and 7. The prayer of the petitioner in this writ application is to quash an order passed by the Civil Surgeon, Bhagalpur filing up the three need based posts of Head Assistant by designating the respondent no.5, 6 & 7 on such post of Head Assistant with the consequential benefit of placing them in the pay-scale of Rs. 4500-7000. The grievance of the petitioner is that though he was senior to the respondent 2 nos. 5, 6 & 7, he was still ignored by the Civil Surgeon, Bhagalpur and was left behind in the matter of grant of higher post and pay- scale. Mr. Shahi, by relying on different documents, would submit that the seniority of the petitioner over respondent nos. 5, 6 & 7 in the district cadre of Assistant of Bhagalpur district is an admitted fact and that even when the petitioner was posted in the office of Regional Director of Health, his being part of district cadre had remained undisturbed. He would, accordingly, submit that when the respondent nos. 5, 6 & 7 were admittedly junior to the petitioner, they could not have been promoted on the need based post with the benefit of higher pay-scale without considering the case of petitioner. In this case a counter affidavit has been filed by the respondents wherein the only stand taken is that the petitioner did not belong to the district cadre. To that extent, there is an order of the Civil Surgeon of Bhagalpur disposing of the representation filed by the petitioner in terms of the order of this Court. 3 Such order in fact of the Civil Surgeon does not answer any of the issue and, therefore, it cannot be a safe parameter to hold either way as with regard to the petitioner being a member of the district cadre or a state cadre. The issue more or less has become academic on account of subsequent events, inasmuch as, after filing of this writ application, the petitioner had retired on 31.12.2000 and so have the respondent nos. 5, 6 & 7. Mr. Shahi, however, is correct in his submissions that if the petitioner can still be held to be a member of the district cadre he would be still entitled for the same benefit of pay-scale of Rs. 4500-7000 at least from the date his juniors including Respondents 5, 6 & 7 were so promoted on the post of Head Assistants w.e.f. 30.8.2000 (Annexure-10). At this stage, Mr. Prabhakar Tekriwal, learned counsel for the State has submitted that from the claim of the petitioner of being member of district cadre of Bhagalpur district seems to be rather shrouded in mystery, inasmuch as, not only the petitioner claims that his initial appointment was made on the 4 post of Accountant cum Correspondence Clerk on 31.1.1962 by the Civil Surgeon, Bhagalpur, but later on he was also transferred to Hazaribagh, inasmuch as, his name had also figured in the gradation list of the Class-III employees of Hazaribagh. He has also pointed out that subsequently the petitioner had come back to Bhagalpur and, therefore, the issue as to whether the petitioner is a member of district cadre or state cadre, which has a direct bearing on the issue involved in this writ application, has to be first gone into by the competent authority. He would accordingly suggest that the matter should be remitted to the Director-in-Chief of Health Services, who in either case, being the head of the department of Class-III and Class-IV employees of the Health Department, would be in a better position to decide the claim of the petitioner as with regard to the his promotion on the post of Head Assistant. Considering the aspect that the petitioner may now only get some enhancement in his retirement benefit, this Court would give liberty to the petitioner to approach the 5 Director-in-Chief of the Health Services by filing a self-contained representation, wherein, he would enclose the evidence to show that he by virtue of being Assistant in the cadre of Bhagalpur district was illegally left behind in the matter of filing up of the post of Head Assistant on 30.8.2000 when his juniors including respondents nos. 5, 6 & 7 had been given the higher post of Head Assistant. The Director-in-Chief, Health Services on receipt of such a representation of the petitioner and after making such enquiry as would be necessary would pass a reasoned order as with regard to the claim of the petitioner for promotion on the post of Head Assistant with effect from 30.8.2000. In the event, the Director-in-Chief would allow such claim of the petitioner, he will be entitled for payment of salary of the post of Head Assistant for the remaining four months in which he had continued in service. as also his revised fixation of retirement benefit. If on the other hand, the Director-in- Chief would find that the petitioner was not entitled to get such benefit of promotion on the post of Head Assistant in Bhagalpur 6 district he would pass a reasoned order rejecting the claim of the petitioner. Such an exercise, however, must be completed within a period of six months from the date of filing of the representation by the petitioner. With the aforementioned observations, direction and liberty, this application is disposed of. Rsh (Mihir Kumar Jha, J.)