IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.6193 of 2010 MD.FIROZ KHAN Vrs THE STATE OF BIHAR & ORS with CIVIL WRIT JURISDICTION CASE No.7054 of 2011 MD.FIROZ KHAN Vrs THE STATE OF BIHAR & ORS --------- For the Petitioner: Mr Surendra Kumar Singh with Ms Sudha Chandra, Advocates For the State : Mr. P.K.Verma, AAG XI with Mr. Saroj Kumar Sharma, AC to AAG V Mr. S.Rahman, AC to GA 4 For the BPSC : Ms. Nilu Agrawal & & J.K.Sinha, Advocates ---------- 7. 11.07.2011 Heard learned Counsel for the petitioner and the learned Counsel for the State. These two writ applications have been filed by one petitioner. CWJC No. 6193 of 2010 seeks the relief to be considered for promotion on the post of Superintending Engineer (Civil) Road Construction Department. The petitioner holds the post of Executive Engineer (Civil). He questions the consideration of his candidature in sealed cover on the ground that on the date when consideration was being done there was no departmental proceeding pending against him much less had any charge sheet been issued. The respondents in their counter affidavit allege that prior to the date of the DPC a show cause notice had been issued to the petitioner which ultimately culminated into a charge duly replied to whereafter a final order of punishment stopping one increment with non cumulative effect has been passed on 11.6.2010. In CWJC No. 7054 of 2011 the petitioner questions the latter order. The question whether the issuance of a show cause notice prior to consideration of his case for promotion was justified or not justified for resorting to the sealed cover procedure need not be gone into in view of the 2 fact that a final order of punishment has been passed. If the punishment was found sustainable, the petitioner may not have an arguable case to be considered for promotion. If the punishment order was not sustainable the petitioner ought to succeed. Learned Counsel for the petitioner submits that the show cause notice culminating into an order of punishment states that in the Measurement Book he had recorded the length, breadth and height of the stone chips observing therein that it had been measured. A sum of Rs. 36,08,032/- was withdrawn from the Treasury. The stocks were scattered and were directed to be congregated for measurement. The stock was re- measured thereafter on 1.4.2008 by the Inspecting Team which found the chips in accordance with the entries in the Measurement Book. The charge therefore was that the petitioner made fictitious entry in the Measurement Book in conspiracy with his subordinates contrary to the procedure in the P.W.D. Code. It is submitted that if after congregation of the stone chips the entries made in the Measurement Book were confirmed the charge itself is non est. Secondly, there was no charge with regard to payment being released without Sieve Analysis of the stone chips. The last submission is that as the Executive Engineer the petitioner had alone been singled out for discriminatory treatment when the Junior Engineer and the Assistant Engineer who were responsible for carrying out measurement had not been proceeded with even though the allegations were of having acted in conspiracy with the subordinates. Learned Counsel for the State is unable to demonstrate from the show cause notice why it should not be held as being passed on non- existent facts. If the stone chips were scattered earlier and on congregation any discrepancy may have been found leading to a finding of erroneous entries in the Measurement Book it was a different matter. But if after 3 congregation the earlier entries made in the Measurement Book based on measurement of the stone chips in a scattered form tallied the charge sheet is based on non existent grounds. Counsel for the State is further unable to demonstrate from the show cause notice that the petitioner had been queried for releasing payment without Sieve Analysis of the stone chips. It needs no discussion that if the impugned order is based on materials beyond the show cause notice it becomes arbitrary as the delinquent had no opportunity to answer the allegations. Dealing with the issue in Tarlochan Dev Sharma Vs. State of Punjab, (2001) 6 SCC 260 at paragraph 13 it has held as follows:- “13………. There is nothing in the show-cause notice or the ultimate order to hold how the act of the appellant had “obstructed the working of the Municipal Council” or was “against the interest of the Council”. We are, therefore, clearly of the opinion that not only the principles of natural justice were violated by the factum of the impugned order having been founded on grounds at variance from the one in the show-cause notice, of which the appellant was not even made aware of, let alone provided an opportunity to offer his explanation, the allegations made against the appellant did not even prima facie make out a case of abuse of powers of the President. The High Court was not right in forming an opinion that the appellant was persuading the High Court to judicially review like an appellate court the finding arrived at by the competent authority. The present one is a case where the impugned order is vitiated by perversity. A conclusion of abuse of powers has been drawn from such facts wherefrom such conclusion does not even prima facie flow. The impugned order is based on non-existent grounds. It is vitiated by colourable exercise of power and hence liable to be struck down within the well-settled parameters of judicial review of administrative action.” The show cause notice specifically alleges that the petitioner acted in collusion and conspiracy with his subordinates. The respondents in CWJC No. 6193 of 2010 have filed a supplementary counter affidavit on 13.1.2011 to justify denial of promotion due to the aforesaid punishment. They have themselves enclosed as Annexure „A‟ to the counter affidavit the show 4 cause notice which speaks of petitioner having acted in conspiracy. The respondents then confront the Court with the final order but refuse to place proper materials before the Court with regard to alleged finding mentioned in the show cause notice of conspiracy and the treatment meted out to the subordinates. The Court is therefore satisfied that the impugned order dated 11.6.2010 is not sustainable. It is accordingly set aside. No other ground has been urged for denial of consideration for promotion to the petitioner on the post of Superintending Engineer (Civil). Consequently the respondents are now required to consider the case of the petitioner in accordance with law preferably within a maximum period of four months from the date of receipt and/or presentation of a copy of this order. Both the writ applications stand allowed. Snkumar/- (Navin Sinha,J.)