IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4501 of 2010 1. Bikrama Singh, Son of Late Sitaram Singh, resident of village- Mairi Maksuspur, P.O. Chakian, P.S. Bhagwanpur Hatt, District- Siwan. 2. Rajendra Prasad Singh, Son of Late Radha Mohan Singh, resident of Village- Kapripur, P.O. Nabiganj Bazar, P.S. Basantpur, District- Siwan. ……. Petitioners Versus 1. The State Of Bihar. 2. The Principal Secretary, Water Resources Department, Sinchaee Bhawan, Patna. 3. The Additiional Secretary to the Government, Water Resources Department, Sinchaee Bhawan, Patna. 4. The Chief Engineer, Office of Central Design Organisation, Water Resources Department, Anisabad, Patna. 5. Jawaharlal Lal, Son of Late Kishori Lal, resident of Village- Purani Chauk, P.S. Fatuha, District- Patna, at present posted as Head Assistant, Canal and Canal Structure Design Circle, Anisabad, Patna. 6. Rama Shankar Singh, Son of Late Sheo Poojan Singh, resident of Mohalla- Yarpur, Near- D.V.C. Small Quarter, P.O. G.P.O., Patna, P.S. Gardanibagh, District- Patna. … Respondents ----------- 4 06.09.2011 Heard learned counsel for the petitioner, State and respondent no.6. No one appears for respondent no.5 despite having entered appearance and filed counter affidavit. 2. The petitioners are aggrieved by the orders dated 04.10.2005 and 19.01.2010. The former cancels the promotion of petitioner no.1 on the need based post of Head Assistant granted on 29.06.2005 with effect from 01.02.2003. The latter shifts the date of promotion of petitioner no.1 against the need based post of Head Clerk from 01.01.1996 to 01.04.2008 and that of petitioner no.2 from 01.01.1996 to 01.02.2001. It places Respondent Nos. 5 and 6 over petitioner no.1 and Respondent No.5 above petitioner no.2. 3. It is submitted that the petitioners were appointed 2 as correspondence Clerk subsequently promoted to Head Clerk in the Junior Selection Grade. The petitioners passed the Departmental Accounts Examination and petitioner no.1 was given the Junior Selection Grade on 15.02.1986 and Senior Selection Grade on 15.02.1991 while petitioner no.2 was given on 01.04.1981 and 05.11.1991 respectively. Petitioner No.1 was promoted as Head Clerk on 01.01.1996 and Head Assistant on 01.02.2003. Petitioner No.2 was granted such promotion as Head Clerk on 01.01.1996. The promotions were on need based post. C.W.J.C. No. 4348 of 2000 and C.W.J.C. no. 10207 of 2009 came to be filed by respondent no. 5 and 6 claiming seniority over the petitioners. 4. It is submitted that in both the writ applications, this Court directed the respondents to consider the grievance of the petitioners/respondents that juniors to them had been made Head Clerk and to consider their representation for promotion. That has been treated as an authority by the State-respondents to pass orders adversely affecting the petitioners without any opportunity to them for presenting their defense. 5. Counsel for the State submitted that the need for shifting the dates of promotion of the petitioners has arisen because of the orders of this Court in C.W.J.C. No. 4348 of 2000 and 10207 of 2009. The adverse consequences on the petitioners were the result of the compliance with the orders of this Court. The revised gradation list had been prepared from the date of 3 first joining in the Department. The counter affidavit stops at that and does not deal with and discuss how, why and in what manner the earlier decisions of the respondents were re- examined by them and found to be erroneous. It confronts the Court with their conclusions. 6. Counsel for respondent no.6 also sought to address the Court which the Court does not consider necessary as the writ petition has to be decided on the grievances of the petitioners made out and not from any defense furnished in the counter affidavit of the respondents in the nature of the discussion to be held hereinafter. 7. The petitioner no.1 is stated to have superannuated on 31.01.2010. Petitioner No.2 has superannuated on 31.03.2008. Respondent No.6 has also superannuated on 31.10.2008. Only Respondent No.5 is in service. The further grievance of the petitioners is against the order dated 28.06.2010 at Annexure-15 by which the recovery has been directed from them in pursuance of the impugned orders. 8. The Court is satisfied that the stage for judicial review has not arisen as yet. The administrative exercise which was to be carried out in the portals of the Secretariat first, to be followed by a reasoned order after due opportunity to those likely to be affected has not been followed. The administrator cannot throw its burden on the Court and require the Court to carry out that administrative exercise. The Court does not 4 exercise administrative powers but powers of judicial review over administrative decision. The administrative decision first has to be in accordance with law whereafter the question of going into or not going into the merits may arise. 9. The petitioners have specifically asserted in paragraph-39 of the writ application that before issuance of the impugned orders dated 04.10.2005 and 19.01.2010, no show- cause notice was issued to the petitioners. The Court at this stage is not concerned with the correctness of the decision taken by the respondents. The Court is concerned with the manner in which the decision has been taken. In the writ applications preferred by the private respondents, this Court had not issued any mandamus to the respondents for violating the basic tenets of the principal of natural justice to pass any orders adverse to the petitioners without hearing them. No Court of law can pass an order contrary to the law. The State- respondents while dealing with the same in paragraph-20 of the counter affidavit do not deny this fact. The impugned order being in violation of the principles of natural justice are, therefore, completely not sustainable. 10. In 1995 (2) SCC 377 an order of reversion in violation of the principles of natural justice having adverse civil consequences was held to be completely un-sustainable. 11. The petitioners are stated to have retired and are now faced with the predicament for recovery from their meager pensionary resources in pursuance of an order passed to the 5 contrary of law. In 2010 (8) SCC 701, the Supreme Court has held at paragraph 38 that no recovery can be effected from persons who have retired. There are no allegations against the petitioners of having obtained the benefits of the promotion by any misrepresentation or misconstruing matters. 12. The impugned orders are, therefore, held to be not sustainable in so far as the petitioners are concerned. They are, accordingly, set aside. The application stands allowed. Md. Ibrarul ( Navin Sinha, J.)