IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.14495 OF 2005 BRIJ BIHARI PATHAK, SON OF LATE BINDESHWARI PATHAK, AT PRESENT RESIDING IN UPADHYAYA LANE, UPADHYAYA BHAWAN, WEST LOHANIPUR, POST OFFICE AND POLICE STATION KADAMKUAN, TOWN AND DISTRICT PATNA …………………………………………………………….PETITIONER VERSUS 1. THE STATE OF BIHAR, THROUGH THE SECRETARY –CUM- COMMISSIONER, HEALTH DEPARTMENT, GOVERNMENT OF BIHAR, NEW SECRETARIAT, PATNA 2. THE DIRECTOR, INDIGENOUS MEDICINE, HEALTH DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3. THE DEPUTY SECRETARY, INDIGENOUS MEDICINE, BIHAR, NEW SECRETARIAT, PATNA 4. THE SUPERINTENDENT, GOVERNMENT AYURVEDIC COLLEGE AND HOSPITAL, PATNA 5. DR. DEVBRAT NARAYAN SINGH, SUPERINTENDENT, GOVERNMENT AYURVEDIC COLLEGE AND HOSPITAL, PATNA ……………………………………………………………………………..RESPONDENTS ******** FOR THE PETITIONER :- MR. CHITRANJAN SINHA, SR. ADVOCATE MR. GAJANAN ARUN, ADVOCATE MR. DHARMENDRA NATH MISHRA, ADVOCATE FOR RESPONDENTS :- MR. SHANKAR KUMAR, AC TO AAG 15 ********** 5 22/02/2011 The petitioner was working as a Clerk –cum- Typist and has been reverted to the post of a Compounder vide Annexure-18 by the Superintendent, Government Ayurvedic College and Hospital, Patna. The petitioner was initially appointed in the year 1977 as a Compounder and continued to work as a Compounder till the year 1985. In the year 1985, the petitioner was asked to perform the duties of a Clerk –cum- Typist. Vide Annexure-6 dated 08.04.1993, the petitioner was absorbed on the post of Clerk –cum- Typist by the Superintendent of the Government Ayurvedic College and Hospital subject to the approval of the State Government. 2 The State Government approved the absorption of the petitioner vide Annexure-7 dated 30.04.1993. Apparently, there was a complaint against the absorption of the petitioner on the post of Clerk –cum- Typist, which resulted in the issuance of the impugned order contained in Annexure-18. The problem lies in the fact that the petitioner comes from a different cadre and could normally not be promoted to the post of a Clerk –cum- Typist in a regular manner, and therefore, he has been adjusted by the State Government. The qualification for the post of Clerk –cum- Typist was initially matriculation is now Intermediate pass. The petitioner claims that he has the educational qualification and that he has been working on the post from the year 1993 onwards. It is submitted at the bar that the work of Clerk –cum- Typist is being taken by the petitioner even today. Counsel for the State submits that since the petitioner comes from a different cadre and could not ordinarily be appointed by way of promotion from the post of a Compounder to the post of the Clerk –cum- Typist, the said absorption is not justified. In reply thereto, Counsel for the petitioner submits that there are several persons who by way of promotion have been adjusted to a different cadre. A list of ten such persons is mentioned at Annexure-12 to the writ 3 application. It is further submitted that the petitioner has acquired the expertise of working on the said post and is thus being utilized for the said post. Finally, it is argued that the Superintendent of the Government Ayurvedic College and Hospital, Patna could not have passed the order reverting the petitioner as the appointing authority of the petitioner is the Director, Indigenous Medicine, Health Department, Government of Bihar, Patna. I, therefore, quash Annexure-18 and remand the matter back to the Director, Indigenous Medicine, Health Department, Government of Bihar, Patna, who shall take a decision in this matter. In case, the Director, Indigenous Medicine, Health Department, Government of Bihar, Patna finds that the petitioner has due qualification and because of the long tenure of working as a Clerk –cum- Typist, is entitled for the said adjustment, he should recommend the case of the petitioner to the State Government, who is the competent authority to take a decision regarding any such promotion/appointment to be made by way of adjustment. This application is accordingly allowed. Anand ( Sheema Ali Khan, J. )