LETTERS PATENT APPEAL No.705 OF 2005 Against judgment and order dated 6.7.2004, passed by Hon’ble Mr. Justice Narayan Roy, in CWJC No. 1648 of 2001. ******** 1. THE STATE OF BIHAR through the Secretary, Water Resources (Irrigation)Department, Government of Bihar, Patna 2. The Deputy Secretary, Water Resources (Irrigation)Department, Government of Bihar, Patna 3. The Chief Engineer (Mechanical), Water Resources (Irrigation)Department, Government of Bihar, Patna 4. The Superintending Engineer (Mechanical), Irrigation Mechanical Circle, Muzaffarpur 5. The Executive Engineer (Mechanical), Irrigation Mechanical Division, Darbhanga …………..Respondents -Appellants Versus AMRENDRA KUMAR JHA son of late Bal Mukund Jha, resident of Village – Pahiar, Post Office Pahiyar, PS Desari, District Vaishali ………..Petitioner-Respondent ******* For the Appellants : Mr.Sanjay Prakash Verma Assistant Counsel to Govt. Advocate no.V For the Respondent : Mr. Yogesh Chandra Verma Senior Advocate ******** P R E S E N T HON'BLE MR. JUSTICE SUDHIR KUMAR.KATRIAR HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA S K Katriar, J. The State of Bihar and its functionaries have preferred this appeal under clause 10 of the Letters Patent of the High Court of Judicature at Patna, and are aggrieved by the order passed by a learned single Judge of this Court in CWJC No.1648 of 2001, whereby the writ petition has been allowed, his promotion to class III post with effect from October 1997 has been restored/upheld, and the authorities have been directed to release his salary accordingly. 2. A brief statement of facts essential for the disposal of this appeal may be indicated. We shall go by the description of the 2 parties occurring herein. The respondent herein was appointed on a class IV post on compassionate ground by order dated 25.2.92, in one of the Engineering Departments of the Government of Bihar, and had joined as such on 27.2.92. By communication dated 23.2.94, the Chief Engineer had addressed to all the Superintending Engineers (Mechanical), in the State of Bihar, to recommend names of eligible employees of class IV for consideration of their cases for promotion to the next higher category of class III. The respondent was selected for promotion to a class III post by order dated 25.4.95. He was posted by order dated 1.6.95, as Junior Accounts Clerk which he had joined on 8.6.95. 2.1) In view of audit objection about the respondent’s confirmation on class IV post, his salary on class III post was stopped by communication dated 4.9.97. By the same inter- departmental communication addressed to the Chief Engineer, request was made to expedite the respondent’s confirmation on class IV post. The respondent was ultimately confirmed as a class IV employee by communication dated 17.6.99. However, the petitioner continued to receive the salary of a class IV employee leading to the writ petition. 2.2) The writ petition has been allowed on the ground that the Chief Engineer had, at the relevant point of time, the power and the authority to promote class IV employees to the next higher post of class III. It has also been allowed on the ground that two similarly 3 circumstanced persons, namely, Ashok Kumar Jha and Saroj Kumar Singh were, on review of their cases reinstated to their posts as class III employees. The learned single Judge has observed that the writ petitioner has been continuously working as Junior Accounts Clerk ever since October 1997, which is an additional ground to allow him to continue as such. 3. We have perused the materials on record and considered the submissions of learned counsel for the parties. It is of utmost importance to realize that the respondent (writ petitioner) was appointed on a class IV post on 25.2.92. He was on temporary basis promoted to class III post by order 26.4.95, which he had joined on 8.6.95. It appears to us from a perusal of the writ petition, and equally of the impugned order of the learned single Judge, that the writ petitioner has completely failed to discharge his primary onus to entitle him to the reliefs prayed for. The writ petition nowhere states that he fulfilled the basis eligibility criteria to be considered for promotion to a class III post. The writ petition nowhere mentions that he had put in the minimum requisite years of service as class IV employee, had the basic minimum educational qualification, and whether or not the prescribed procedure and the rules were followed, and a limited test was held for this purpose. In such a situation, we have no manner of doubt that the writ petition could not have been allowed. Law is well settled that the primary onus is on the writ petitioner to lay the factual foundation to enable him to achieve the 4 reliefs. The writ petition completely ignores these aspects of the matter and gives rise to a suspicion in our mind that the omission is purposive. 4. The learned single Judge has drawn parity between the petitioner’s case with those of the “similarly circumstanced persons”, namely, Ashok Kumar Jha and Saroj Kumar Singh. Neither the pleadings in the writ proceeding nor the impugned order of the learned single Judge states the necessary facts to establish as to what manner the three persons are similarly circumstanced. It is a possible situation that the petitioner may not be fulfilling the basic eligibility criteria for consideration for promotion, whereas the other two persons may be. In fact, the factual position appears to be that after those two persons were given similar treatment and got discontinued as class III employees, they had challenged it by preferring CWJC No.1107 of 1997, which was dismissed by a learned single Judge of this Court by order dated 5.5.1997. The order was affirmed by a Division Bench of this Court by order dated 12.8.97, passed in LPA no.721 of 1997. Those persons thereafter filed civil Review no.331 of 1997, which was considered by a Division Bench of this Court. Learned counsel for the review petitioners had submitted before the Division Bench that document dated 22.4.98 was not brought to the notice of this Court as a result of which the writ petition as well as the appeal were dismissed. In that view of the matter, the review application was disposed of by order dated 14.9.98, to enable the 5 petitioner to approach the appropriate authority for consideration of the document and appropriate order. It appears that the authorities reconsidered the question, namely, whether or not discontinuance of those petitioners on class III post was valid or not, and passed the order dated 27.6.2002 (Annexure 1 to the appellants’ supplementary affidavit in the present proceeding), and reinstated them to class III posts. However, the State Government countermanded the same by its order dated 10.10.2002 (Annexure 2 to the appellants’ supplementary affidavit). The text of Annexure -2 is reproduced hereinbelow:- Þeq[; vfHk;Urk ¼;kf=d½ dk dk;kZy; ty lalk/ku foHkkx] fcgkj] iVuk A dk0v0la0 1@;k0 eqdnek &4&002@97 iVuk fnukad dk;kZy; vkns'k bl dk;kZy; ds dk;kZy; vkns'k la[;k 1989 fnukad 27-6-2002 dks iwoZ leh{kk gsrq vxys vkns'k rd ds fy, Hkwri{kh izHkko ls LFkfxr fd;k tkrk gSA g0 ¼,l-,u egrks½ eq[; vfHk;Urk ¼;kaf=d½ Kkikad 3093 iVuk] fnukad 10-10-2002 Izfrfyfi & lHkh v/kh{k.k vfHk;Urk ¼;kaf=d½ @lEcfU/kr dk;Zikyd vfHk;Urk ¼;kaf=d½ dks lwpukFkZ ,oa vko”;d dkjokbZ gsrq izf’kr A g0 ¼,l-,u egrks½ eq[; vfHk;Urk ¼;kaf=d½Þ 5. The learned single Judge has also observed in his order that the present writ petitioner has been continuing as a class III employee ever since October 1997, and, therefore, may be allowed to continue as such with arrears of salary. We disagree with this reasoning. This was not a case of regularization as seems to be the 6 spirit of the order of the learned writ court. The writ petition was really for consideration whether or not the petitioner was eligible and entitled for his promotion to a class III post. We are of the view that he was not so qualified and, therefore, the authorities were justified in recalling the order of promotion. 6. In the result, we disagree with the order of the learned single Judge. The appeal is allowed. Consequently the writ petition is dismissed. In the facts and circumstances of the case, there will be no order as to costs. ( S K Katriar, J.) Birendra Prasad Verma, J. I agree. ( Birendra Prasad Verma, J.) Patna High Court, Patna The 26th of August 2010 NAFR/mrl