IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13253 of 2007 Umesh Chandra Jha, son of Shri Narayan Jha, resident of Village & P.O. Pupari, P.S. Pupari, Dist. Sitamarhi. -------- Petitioner Versus 1. The State of Bihar. 2. The Medical (Incharge) Primary Health Centre, Jale, Darbhanga. 3. Civil Surgeon cum Chief Medical Officer, Darbhanga. 4. The Secretary, Health Department, Bihar, Patna. --------- Respondents ----------- For the Petitioner : Mr. Prafull Chandra Jha, Advocate For the State : Miss. Juhi Kumari, A.C. to AAG-13. ----------- P R E S E N T HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (17.11.2011) Mihir Kumar Jha, J. Heard Mr. Prafull Chandra Jha, learned counsel for the petitioner and Miss. Juhi Kumari, learned AC to AAG-13 for the State. Mr. Jha, learned counsel for the petitioner, assailing the impugned order of reversion of the petitioner from the post of Basic Health Worker to Sweeper-cum-Servant, has submitted that the impugned order, passed after 25 years of promotion of the petitioner, is wholly unsustainable, inasmuch as, the petitioner was never given copy of the enquiry report on the basis of which he was sought to be reverted from service. He has further submitted that as a matter of fact, no departmental proceeding was held against the petitioner before passing the order of reversion, which is a major punishment in terms of the Civil Services Classification Appeal Rules, 2005. He has also submitted 2 that in any event, the order recovery of the payment of salary made to him on the promotional post of Basic Health Worker cannot be justified either on fact or in law specially when in the show-cause notice, the petitioner was even not asked anything about such recovery. He has finally submitted that the petitioner has already retired from service on 31.12.2009 and, therefore, if the impugned order of reversion is allowed to stand, he would be looser in the matter of getting his retirement benefit. Counsel for the State, on the other hand, has submitted that the petitioner’s appointment against the Class-IV post in the year 1970, being against a non- technical post, he could not have earned promotion on a technical post, namely, Basic Health Worker. She has further explained this aspect as also dwelt upon the pleas raised in the counter affidavit that such promotion given by the Civil Surgeon to the petitioner was itself per se illegal and, as such, did not cloth him with any right. In the considered opinion of this Court, there cannot be any dispute on the question of law that a person cannot be promoted on a post, which does not fall in his or her line of promotion. The difficulty, however, in the facts of present case is that when in the year 1982, such promotion was given to the petitioner after his continuing for a period of twelve years against a Class-IV post, there was no Government order there is 3 existence which had classified the post of Basic Health Worker as a technical post. Such concept of Basic Health Worker as a technical post in fact after change of basic qualification in terms of the recommendation of the Central Government, was introduced only in the year 1966 and only thereafter avenue of promotion of a Class-IV employee against the post of Basic Health Worker was closed. Once this aspect, therefore, would becomes clear that the post of Basic Health Worker in the year 1982 was not a specified technical post, there would be no difficulty in coming to a conclusion that the petitioner’s promotion in the year 1982 was very much permissible in view of his holding the lower Class-IV post for a period of twelve years. As a matter of fact, the respondents appear to have acted vindictively in the case of the petitioner, inasmuch as, only after the petitioner had moved this Court earlier in CWJC No. 14238 of 2006 as with regard to the payment of his salary for the period he had worked that he was handed out with the order of reversion. This Court infact had issued a direction in the order dated 9.5.2007 for passing an order on the representation of the petitioner as with regard to the payment of salary and only thereafter the impugned order of reversion dated 5.7.2007 was passed by way of vengeance making the order of this court as a plank to even unsettle promotion of the petitioner given to him twenty five years back in 1982. The very fact that the impugned order itself 4 referred to the direction of this Court in the order dated 9.5.2007 in CWJC No. 14238 of 2006 as the prime mover for passing such an order would indicate that the respondents wanted to somehow use the order of this Court to the detriment of the petitioner whereas actually no such direction for digging up post of the petitioner was issued by this Court in the connected writ application CWJC No. 14238 of 2006 disposed of on 9.5.2007. Mr. Jha, in fact, is also correct that the impugned order was a predetermined action on the post of the Civil Surgeon inasmuch as in the show-cause notice that was issued to him on 12.5.2007, as contained in Annexure-10, the Civil Surgeon, Darbhanga had already formed his concluded opinion on the basis of the enquiry report of Accounts Officer of Darbhanga Treasury that the promotion of the petitioner was illegal. The content of such show-cause notice dated 12.5.2007 thus would itself go to show that not only the Civil Surgeon had already formed his opinion about the promotion of the petitioner being illegal but had also gone to rely on the enquiry report of the Accounts Officer of Darbhanga Treasury dated 12.10.2006 without even supplying a copy thereof to the petitioner. Apparently, the impugned order passed without supply of the enquiry report was itself in violation of principle of natural justice. Learned counsel for the State, however, has drawn attention of this Court towards the enquiry report, which has been made part of the counter affidavit. The 5 said enquiry report in fact written by the Accounts Officer of Darbhanga district addressed to the Collector of Darbhanga in fact is not an enquiry report pursuant to any proceeding rather is an administration report submitted by the Treasury Authority to the Collector as with regard to certain anomaly in the payment of salary of the different employees of Health Department. The relevant portion of the aforesaid report would go to show that such findings were recorded without looking into any rules of promotion in Health Department and were based on surmises and conjecture. The following extract of the enquiry report would in fact make this aspect more elaborate and clear:- ^^fu;qfDr dh oS/krk dh tkWp gsrq eSaus vius i=kad 344 fnukad 18-09-06 ds }kjk mDr fu;qfDr vkns”k dk feyku flfoy ltZu dk;kZy; ds fuxZr iath ls djkrs gq, Hkstus ds fy, i= fy[kkA ftlds tokc esa flfoy ltZu] njHkaxk ds i=kad 2539 fnukad 12@10@06 dk i= feyk ftlesa vkns”k fd;k x;k fd ys[kk inkf/kdkjh] [kqn vkdj fuxZr iath ls feyku dj ysaA mijksDr i= ds vkyksd esa eSa [kqn vkt gh flfoy ltZu] njHkaxk dk dk;kZy; tkdj orZeku esa iath izHkkjh Jh mn; “kadj JhokLro ls lEidZ dj fuxZr iath ls fu;qfDr vkns”k dk feyku fd;k feyku djus ij ek= rhu LokLF; dehZ ¼1½ Jhefr xhrk nsoh ¼2½ Jhefr fo|k nsoh rFkk ¼3½ eks0 tgh:y eUukku dk fu;qfDr vkns”k la[;k dk mYys[k fuxZr iath esa ik;kk x;kA Mlds vfrfjDr Jh ckyxksfoUn yky d.kZ ftldh fu;qfDr ,oa izksUufr ds vkns”k la[;k dk feyku flfoy ltZu] e/kqcuh ds dk;kZy; ds fuxZr iath ds vk/kkj ij lgh ik;kA lkFk gh ist la[;k ¼2½ esa mYysf[kr dfeZ;ksa esa ls 1- Jh mes”k pUnz >k ¼cq0Lok0dk;Z0½ 2- fo’.kqnso >k ¼cq0Lok0dk;Z0½ 3- Jh lqjs”k izlkn nso ¼cq0Lok0dk;Z0½ 4- Jh lrh”k dqekj lkg ¼cq0Lok0dk;ZdrkZ½ 5- Jh dUgS;k lkg ¼cq0 Lok0dk;Zdrk½ 6- Jh jkes”oj izlkn ¼cq0Lok0dk;ZdrkZ½ 7- Jh izHkqukjk;.k iafMr ¼cq0Lok0dk;ZdrkZ½ ds laca/k esa fuxZr iath gh flfoy ltZu] njHkaxk ds dk;kZy; esa miyC/k ugha gSA ¼bldh lEiqf’V gsrq orZeku esa lafpdk izHkkjh dks izkIr izHkkj izfrosnu dh Nk;k izfr layXu dh x;h gS½ tkWp gsrq izkIr nLrkostksa ds vk/kkj ij dqy 14 LokLF; dfeZ;ksa ds lEcU/k esa ik;s x;s rF;ksa dk mYys[k fuEufyf[kr gS%& 1- Jh mes”k pUnz >k Jh mes”k pUnz >k ds lsokiqLr ,oa fu;qfDr i= ns[kus ij ik;k x;k fd Jh >k dh fu;qfDr flfoy ltZu] njHkaxk ds Kkikad 1647 fnukad 24-02-70 ds vkns”kkuqlkj >kM+wd”k lg lsod ds in ij dh xbZ] tks prqFkZ oxhZ; in gS ,oa xSj rduhdh in ij Hkh gSA bUgsa flfoy ltZu] njHkaxk ds Kkikad 27 eq0 fnukad 9-8-82 ds vkns”kkuqlkj cqfu;knh LokLF; dk;ZdrkZ ds in ij izksUufr nh xbZA cqfu;knh LokLF; dk;ZdrkZ ,d rduhdh in gSA 6 bl izdkj Jh >k dh izksUufr xSj rduhdh in ls rduhdh in esa nh xbZ tks fu%lansg vuqfpr@xyr gSA** From reading of the aforementioned extract of fact finding report submitted by the Treasury Officer to the Collector, it would become clear that this was an enquiry undertaken by an administrative authority in which the petitioner had never been given any opportunity to defend his own promotion. On the basis of such ex- parte findings, the petitioner could not have been subjected to reversion after continuing his promotion for a period of over twenty-five years. Learned counsel for the petitioner is also correct in pointing out that the show-cause notice issued by the Civil Surgeon of Darbhanga district dated 12.5.2007 without giving copy of the enquiry report to the petitioner was made the solitary basis for arriving at a concluded findings even before the petitioner could have filed his reply that the promotion of the petitioner was illegal. The pre-determined mind of the Civil Surgeon of Darbhanga district in fact is reflected from the following portion of the show-cause notice:- izsf’kr] Jh mes”k pUnz >k] Cqfu;knh LokLF; dk;ZdrkZ izkFkfed LokLF; dsUnz] tkysA fo’k;%& prqFkZoxhZ; in ls cqfu;knh LokLF; dk;ZdRrkZ ds in ij xyr <ax ls izkIr dh xbZ izksUufr ds laca/k esa dkj.k&i~PNkA mi;qZDr fo’k;d izlax esa lwfpr djuk gS fd rRdkyhu flfoy ltZu] njHkaxk }kjk vkidh fu;qfDr 1-6-69 ls >kMqdl&lg&lsod ds in ij dh xbZ rFkk fnukad 14-08-82 dks cqfu;knh LokLF; dk;ZdRrkZ ds in ij vkidks izksUufr nh xbZA tkWp inkf/kdkjh] Jh “kaHkq dqekj vk;Z ys[kk inkf/kdkjh] njHkaxk }kjk lefiZr 7 tkWp izfrosnu la[;k 375 fnukad 12-10-06 esa ;g mYysf[kr gS fd xSj rduhdh in ls rduhdh in ij dh xbZ izksUufr fulansg xyr gSA vuqfpr gSA vr% vki viuk Li’Vhdj.k mfpr ek/;e ls i= izkfIr ds lkr fnuksa ds vUnj v/kksgLrk{kjh dk;kZy; esa lefiZr djs fd xyr <ax ls dh xbZ izksUufr dks D;ksa ugha fujLr dj fn;k tk; rFkk vkidks D;ksa ugha ewy in ij okil dj fn;k tk;A g0@& 12-5-07 vlSfud fpfdRlk lg eq[; fpfdRlk inkf/kdkjh] njHkaxk** Thus, from reading of the aforesaid show-cause notice, it becomes clear that the petitioner was neither given copy of the so-called enquiry report nor the petitioner was asked to explain as to why he should not be subjected to recovery of the amount already paid to him in the last twenty-five years on account of his promotion from Class-IV post to Class-III post of Basic Health Worker. In view of the aforesaid inherent and fatal infirmity in the show-cause notice, this Court will have no difficulty in holding that there was a clear infringement of the principle of natural justice and the petitioner could not have been subjected to also an order of recovery of the amount of salary already paid to him. Reference in this connection may be made to the Full Bench judgment in the case of Bijoy Kumar Bharti & Ors. Vs. State of Bihar & Ors. reported in 1983 PLJR 667 wherein an action of recovery of salary on the basis of an illegal appointment/promotion without giving notice and/or opportunity for this very purpose was held to be bad. As noted above, the position of 1982 was also not examined by the Treasury Officer/ Accounts Officer 8 who in fact, had got no document before him as with regard to grant of promotion to the petitioner in the year 1982. This Court, therefore, will have no difficulty in holding that even the tentative findings recorded by the Accounts Officer on the illegality in the promotion of the petitioner of the year 1982 was based on his mere ipsi-dexit. The very fact that the Accounts Officer also did not point out any fraud or misrepresentation on the part of petitioner in getting such promotion would even otherwise make the respondents disentitled to make any recovery as was laid down by the Apex Court in the case of Syed Abdul Qadir & Ors. Vs. State of Bihar & Ors. reported in 2009(3)SCC 475. This Court having held that the impugned order is in violation of principle of natural justice, could have adopted the recourse of remitting the matter back to the authority for reconsideration but in view of the fact now the petitioner has already retired from service on 31.12.2009 and as such, no useful purpose would be served by directing the authorities to conducting further enquiry inasmuch as, the petitioner now cannot be subjected to a punishment of reversion, which is a major penalty in terms of Rule 14 of Bihar Government Service Classification Control Appeal Rules. A retired person, therefore, now cannot be proceeded in terms of Rule 14 of 2005 Rules and the only thing that could have been done in the case of the petitioner had there been a proper departmental proceeding initiated and continuing against 9 him before his retirement, this Court could have allowed the proceeding to be converted into Rule 43B of the Bihar Pension Rules. However as noted above, there was no departmental proceeding ever initiated against the petitioner for inflicting a major punishment including reversion in terms of discipline and court Rules and the procedure adopted for reverting him from Class-III post of Basic Health Worker to Class-IV post of Sweeper/Servant by the impugned order was itself wholly in violation of the mandatory provision contained in Discipline Control and Appeal Rules 2005. In that view of the matter, this Court would not give any liberty to the respondent to initiate any proceeding against him specially when the event on the basis of which he could have proceeded is of the year 1982 much beyond the period of four years prescribed under Rule 43B of Bihar Pension Rules. Having held so, this Court will have no hesitation in quashing the impugned order of reversion of the petitioner and the order dated 5.7.2007 as contained in Annexure-11 reverting the petitioner from the post of Basic Health Worker to the post of Sweeper-cum-Servant is hereby quashed. Counsel for the petitioner has submitted that no recovery was made from the petitioner in terms of the impugned order and as such, the respondents are now restrained for making any recovery from the petitioner. 10 It also goes without saying that the petitioner would be deemed to have been continuing on the post of Basic Health Worker on the date of retirement on 31.12.2009 and would be entitled for payment of his difference of salary for the period 5.7.2007 to 31.12.2009, which must be paid to the petitioner within a period of six months from the date of receipt/production of a copy of this order. The retirement benefit already paid to the petitioner as a Class-IV employee shall also be revised in terms of the re-fixation of pay of the petitioner as a Basic Health Worker on the date of his retirement i.e. 31.12.2009. This exercise also must be completed within a period of aforesaid six months. The writ application, with the aforesaid observations and directions, is accordingly allowed. There would be however, no order as to costs. Patna High Court Dated the 17th November 2011 A,F,R,/Rsh (Mihir Kumar Jha, J.)