IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3681 of 2007 1. Upendra Prasad Singh, Son of Sri Indrasan Singh R/O Village- Chhitrauli, P.S. Goraul, Distt. – Vaishali. At present working as live stock Assistant, Distt. Dairy Development Office, Vaishali 2. Nagendra Prasad, Son of Late Sri Kapildeo Yadav, R/O- Village- Bakhari Tola Balua, P.S. Kuchaikot, Distt. Gopalganj, At present working as live stock Assistant, Distt. Dairy Development Office, Vaishali 3. Binda Chaudhary, son of Late Sri Sadhu Chaudhary, R/O Village- Mathiya (Rampur Madho), P.S. Kuchaikot, Distt. Gopalganj, At present working as live stock Assistant, Distt. Dairy Development Office, Vaishali 4. Brijbihari Singh, son of Late Deo Prasad Singh R/O Village- Parsawan, P.S. Paraiya, Distt. Gaya. At present working as live stock Assistant, Distt. Dairy Development Office, Gaya 5. Tanweer Ahmad Khan, S/O Late Sri Wahud Hussain Khan, R/O Village + P.O.+P.S. Maner, Distt. Patna. At present working as Sample Collector, Dairy Research Office, Bihar, Patna 6. Rajeshwar Rai, Son of Sri Gauri Charan Rai, R/O Vill. Khushahal chak, P.S. Gauri Chak, Distt.- SPatna. At present working as live stock Assistant, Distt. Dairy Development Office, Manghyr 7. Chandrika Ram, Son of Late Sri Bhageran Ram, R/O Village- Dariapur, P.S. Punpun, Distt. Patna. At present working as live stock Assistant, Distt. Dairy Development Office, Gaya 8. Sheo Chandra Singh, Son of Late Sri Yadunath Singh, R/O Vill. Khairadih, P.S. Kinjer, Distt. Arwal, At present working as live stock Assistant, Distt. Dairy Development Office, Gaya 9. Ramashray Paswan, Son of Late Sri Rupa Paswan, R/O Vill. Rupaspur, P.S. Sarmera, Distt. Nalanda. At present working as live stock Assistant, Distt. Dairy Development Office, Gaya 10. Dukhit Sahu, Son of Sri Ram Kishun Sahu, R/o Village- Belchhi, P.S. Chandi, Distt. Nalanda. At present working as live stock Assistant, Distt. Dairy Development Office, Munger ……. Petitioners Versus 2 1. The State Of Bihar through the Secretary, Animal Husbandry Department, Bihar, Patna 2. The Director, Dairy Development, Bihar, Patna 3. The Secretrary, Dairy Development Directorate, Bihar, Patna 4. The Deputy Director (H.Q.) Dairy Development Directorate, Bihar, Patna … Respondents ---------------------------------- For the Petitioners :M/s Rajendra Prasad Singh, Sr. Advocate & Niranjan Kumar, Advocate For the State :M/s Anjani Kumar, AAG-10 & Sanjay Kumar, A.C. to AAG-10 04/ 19.09.2011 Heard learned counsel for the petitioners and the State. 2. Petitioners have challenged order No. 36 bearing Memo No. 391 dated 3.4.2007, Annexure- 7 to I.A. No. 2416 of 2007, whereunder promotion granted to them on Class III post of Live Stock Assistant under order No. 52 bearing Memo No. 392 dated 24.3.1999, Annexure-3 to the writ petition has been cancelled on the ground that the petitioners were promoted on Class III post of Live Stock Assistant violating the circular letter of the State Government bearing No. 11243 dated 6.12.1995, Annexure-9 to I.A. No. 2416 of 2007, which, inter alia, provided that Class IV employees serving in the Secretariat and the attached offices shall be considered for promotion on 3 Class III post after they become successful in the Limited Department Examination. Earlier, petitioners were served with show cause notice bearing Memo No. 150 dated 6.2.2007, Annexure-1 asking the petitioners to show cause as to why promotion granted to them under order dated 24.3.1999, Annexure-3 be not cancelled as being violative of the circular letter dated 6.12.1995, Annexure-9. In response to the aforesaid show cause notice dated 6.2.2007, Annexure-1, petitioners did not respond and the authorities after being satisfied that the promotion granted to the petitioners was violative of the circular letter dated 6.12.1995, Annexure-9, passed the impugned order dated 3.4.2007, Annexure-7 cancelling the promotion granted to the petitioners on Class III post of Live Stock Assistant. 3. By filing the present writ petition as also I.A. No. 2416 of 2007, petitioners have challenged the aforesaid notice dated 6.2.2007, Annexure-1 and the cancellation order dated 3.4.2007, Annexure-7 on three grounds, namely, that perusal of notice dated 6.2.2007, Annexure-1 would 4 indicate that before issue of the notice, the authorities had made up their mind to cancel the promotion as violative of the circular letter dated 6.12.1995, Annexure-9 and notice was a mere formality. The other submission raised in support of the writ petition is that the process for considering the case of the petitioners for promotion on Class III post was initiated in the year 1994, much before coming into force of the circular letter dated 6.12.1995, Annexure-9 and as the process was initiated prior to coming into force of the circular letter dated 6.12.1995, Annexure-9, case of the petitioners for promotion was rightly considered in the light of the old circulars issued on 29.10.1979 and 26.8.1986, Annexures-10 and 11 to the supplementary affidavit. The third and the last submission raised in support of the writ petition is that circular letter dated 6.12.1995, Annexure-9 has also been superseded by the State Government restoring the same procedure which was in vogue under the old circular letters dated 29.10.1979 and 26.8.1986, Annexures-10 and 11 and success in the departmental examination is not 5 required for a Class IV employee earning promotion on Class III post. Finally, it is submitted that as petitioners never misrepresented for earning promotion on Class III post under order dated 24.3.1999, Annexure-3, this Court may not direct for recovery of the amount paid to the petitioners in lieu of the promotion, as petitioners have discharged the duties of Class III post pursuant to promotion under order dated 24.3.1999. 4. Counsel for the State opposed the prayer and submits that process for considering the case of the petitioners for promotion may have begun in the year 1994, but actual promotion was granted in the year 1999, much after coming into existence of the circular letter dated 6.12.1995, Annexure-9 and no sooner the State Government issued the circular letter dated 6.12.1995, Annexure-9 superseding the earlier circulars, the authorities of the State Government should have stayed the matter of consideration of the case of the petitioners for promotion in the light of the earlier circular(s) dated 29.10.1979 and 26.8.1986, Annexures-10 and 11 and have asked the 6 petitioners to appear in the Limited Departmental Examination for being considered for promotion on the Class III post of Live Stock Assistant. The authorities of the State Government having acted contrary to the circular of the State Government in granting the petitioners promotion under order dated 24.3.1999, Annexure-3, such order has rightly been cancelled under the impugned order. 5. Having heard counsel for the petitioners and the State and having perused the circular letter dated 6.12.1995, Annexure-9, I am of the view that after coming into force of the circular letter dated 6.12.1995, any Class IV Government employee serving in the Secretariat and attached offices for earning promotion on Class III post is required to appear in the Limited Departmental Examination and only after becoming successful in the said examination, he could have been given promotion on Class III post. In the instant case, consideration of the case of the petitioner for promotion may have begun in the year 1994, but as the promotion order was issued on 24.3.1999, much after coming into force of 7 the circular letter dated 6.12.1995, Annexure-9, the authorities should have considered the case of the petitioners for promotion on Class III post in the light of the circular letter dated 6.12.1995, Annexure-9. As the promotion order dated 24.3.1999, Annexure-3 was issued contrary to the instructions of the State Government contained in circular letter dated 6.12.1995, Annexure-9, this Court cannot uphold the validity of the promotion order, the validity of the order dated 3.4.2007, Annexure-7 cancelling promotion order dated 24.3.1999, Annexure-3 has to be upheld. The submission of the counsel for the petitioners that the notice dated 6.2.2007, Annexure-1 was a mere formality is also misconceived, as thereunder the authorities have categorically asked the petitioners to show cause as to why their promotion order dated 24.3.1999, Annexure-3 be not cancelled as the same is violative of the circular letter dated 6.12.1995, Annexure-9. 6. Having upheld the order dated 3.4.2007, Annexure-7, the other question which arises for consideration is about the recovery of the amount 8 paid to the petitioners in the light of the promotion order dated 24.3.1999, Anexure-3. Petitioners having served on the promoted post in the light of the order dated 24.3.1999, Annexure-3, which was passed without any misrepresentation on the part of the petitioners, as such, in my opinion, there cannot be any recovery of the salary of the promoted post from the petitioners for the period between 24.3.1999 – the date of issue of the promotion order and the date of issue of the impugned order i.e. 3.4.2007. In the event, circular letter dated 6.12.1995, Annexure-9 has been superseded by another circular, which does not provide for any Limited Departmental Examination for promotion, the case of the petitioners be considered for promotion on Class III post in the light of the latest circular of the State Government. 7. The writ petition is, accordingly, disposed of. AFR Arjun/ ( V. N. Sinha, J.)