IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2477 of 2001 AJAY KUMAR & ORS Versus THE STATE OF BIHAR & ORS ----------- 8 9.4.2009 Heard learned Counsel for the petitioners and the State. Petitioners came to this Court in CWJC No. 12396 of 1996, disposed on 18.5.1998 questioning the denial of their promotion to the post of Headmasters from the post of Assistant Teachers, Government Middle School. A counter affidavit was filed. This Court referred to a Division Bench decision of this Court in the case of Bali Ram Choudhary vs. State of Bihar reported in 1994(1) PLJR 588 decided in light of a Government notification no. 2440 dated 18.12.1984. The matter was disposed with a direction to take a decision on the claim for promotion in light thereof. The petitioners were then granted promotion to the post of Headmaster by a notification dated 23.12.2000 after consideration by the District Education Establishment Committee, appended at Annexure-15. It has been cancelled by another order dated 12.3.2001 in pursuance of a fresh decision by the District Education Establishment Committee appended at Annexures B & C - 2 - to the counter affidavit. This Court considers it appropriate at this stage to take note of the fact that the constitution of the Establishment Committee as on 23.12.2000 changed and new members came to constitute the Establishment Committee when the fresh decision dated 12.3.2001 has been taken. The issues remained the same. The persons for consideration remained the same. The order of promotion dated 23.12.2000 refers to another decision of the Establishment Committee dated 24.6.2000, a letter of the Director Bhagalpur Division dated 10.11.2000 and another decision of the Establishment Committee dated 22.12.2000 in light of the observations of this Court in CWJC No. 12396 of 1996. This naturally includes the directions contained in that order, the order of the Division Bench and the Government circular No. 2440 dated 18.12.1984. A presumption necessarily arises of the correctness in law of the decision dated 23.12.2000, though rebuttable. It has been noticed that the occasion to reconsider the decision was the change in the constitution of the Establishment Committee. The fresh decision dated 12.3.2001 does not discuss the earlier order of this Court, the earlier decision of the Establishment Committee dated 22.12.2000 referred to in - 3 - the order dated 23.12.2000 as also the letter dated 10.11.2000 referred therein. It proceeds to reconsider the promotion by re-interpretation of the Government circular dated 18.12.1984 by memo no. 2440. This Court has already held that there is a presumption that this circular was considered by the earlier Establishment Committee when order of promotion dated 23.12.2000 came to be passed. It was open for the respondent to rebut the presumption by proper consideration of all materials in pursuance of which the earlier decision dated 23.12.2000 came to be taken in their latter decision dated 12.3.2001. Learned Counsel for the State has very fairly acknowledged that the fresh decision dated 12.3.2001 does not deal with consider and reject the reasons for which the earlier Establishment Committee decided to grant the same and finds it difficult to satisfy the Court of the reasons for a fresh decision dated 12.3.2001 by a fresh interpretation of the circular dated 18.12.1984 issued vide memo no. 2440 at variance with the interpretation given to it by the earlier Establishment Committee. This Court sitting in exercise of jurisdiction under Article 226 of the Constitution of India is not expected to perform the administrative function of the - 4 - State. Matters of promotion are primarily administrative matters. They come to the Court when issues of legality of the promotion granted or denied under rules arise. This necessarily postulates a reasoned order. This duty becomes essential, if the benefit has been given to a Government servant and he is sought to be deprived of the same. The law stands settled that before depriving the benefit given to a Government servant, he should be given an opportunity to have his say in the matter. If such opportunity is given, the authority is then required to pass a reasoned order fully considering the materials on the basis of which the benefit was earlier granted the cause shown by the employee and then by a process of reasoning, discuss why giving the benefit was wrong. Once this exercise is completed the decision making process is over. Only thereafter the Court may permit the petitioners to assail the decision on its merit. Any infirmity in the decision making process hinders judicial review. The Court does not have the benefit of understanding what was passing in the mind of the administrative authority and what materials were considered by him. All this is possible provided an order is discussed and reasoned after considering all materials and aspects. It has been held in more than one judgment that reasons control arbitrariness. It also gives - 5 - satisfaction to the person that justice has been done. Notwithstanding the legal proposition settled, the respondents insist on assumption of authority contrary to the law and generating litigation. Had the respondents while passing the impugned order discussed the materials on the basis of which the earlier orders were passed and by a process of reasoning held the same bad in law the matter would have been entirely different. If the respondents wish to pass the order and leave it to the to the affected persons to approach the Court increasing the burden of the Court, the Court has no option but to set aside such illegal orders and leave to the administrator to decide afresh in accordance with law.. For the reasons of the aforesaid discussion, this Court finds it difficult to sustain the order dated 12.3.2001 at Annexure B & C to the counter affidavit; the same are accordingly set aside. The writ application stands allowed. (Navin Sinha,J.) A.Kumar