IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.860 OF 2009 Bishwanath Yadav, S/o Sri Bhullar Yadav, Resident of Village- Mohanpur, P.S. Siriput Moti, Pandaul, District-Madhubani. …. …. Petitioner -Appellant Versus 1. The State of Bihar. 2. The Director-in-Charge, Health Services, Department of Health, Government of Bihar, New Secretariat, Patna. 3. The Regional Deputy Director of Health Services, Department of Health, Darbhanga, Darbhanga. 4. The Civil Surgeon-Cum-Chief Medical Officer, Madhubani. 5. In Charge Medical Officer, Primary Health Centre, Babubarhi, Madhubani. …. …. Respondents-Respondents WITH Letters Patent Appeal No.895 OF 2009 Shyam Nandan Lal, S/o Late Bahadur Lal, Resident of Village-Jatra, P.O. Sonki, P.S. Darbhanga Sadar, District-Darbhanga. …. …. Petitioner-Appellant Versus 1. The State of Bihar. 2. The Director-in-Charge, Health Services, Department of Health, Government of Bihar, New Secretariat, Patna. 3. The Regional Deputy Director of Health Services, Department of Health, Darbhanga Division, Darbhanga. 4. The Civil Surgeon-Cum-Chief Medical Officer, Madhubani. 5. In Charge Medical Officer, Primary Health Centre, Babubarhi, Madhubani. …. …. Respondents-Respondents WITH Letters Patent Appeal No. 927 OF 2009 Kulanand Jha, S/o Asharfee Jha, Resident of Village-Sahpur, P.S.- Pandaul, Distt- Madhubani. …. …. Petitioner-Appellant Versus 1. The State of Bihar. 2. The Director-in-Charge, Health Services, Department of Health, Government of Bihar, New Secretariat, Patna. - 2 - 3. The Regional Deputy Director of Health Services, Department of Health, Darbhanga Division, Darbhanga. 4. The Civil Surgeon-Cum-Chief Medical Officer, Madhubani. 5. In Charge Medical Officer, Primary Health Centre, Babubarhi, Madhubani. …. …. Respondents-Respondents ----------- For the Appellants : Mr. Umapati Jha, Advocate (In all Appeals) For the Respondents : Mr. Y.P. Sinha, Additional Advocate (In all appeals) General-V Mr. R.K.Ambastha, Advocate ----------- Present: THE HON'BLE THE CHIEF JUSTICE THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH O R D E R (27/01/2010) As per Dipak Misra, C.J. – Regard being had to the commonality of the controversy involved the appeals were heard analogously and are disposed of by a singular order. For the sake of clarity and convenience the facts in L.P.A. No. 860 of 2009 arising out of C.W.J.C. No. 11572 of 2005 are adumbrated herein. 2. The appellant invoked the inherent jurisdiction of this Court under Article 226 of the Constitution of India challenging the order of cancellation of his adjustment and posting as Assistant as a consequence of which he was shifted back to his original post, namely, Special Cholera Worker. The cancellation had taken place on the bedrock that he was promoted in the higher pay-scale by the Civil - 3 - Surgeon to the post of Assistant which was totally in infraction of the Rules. It was contended before the learned Single Judge such cancellation and shifting was in violation of the principles of natural justice inasmuch as they were never asked to show cause on what basis or foundation his adjustment on the post of Clerk was sought to be cancelled and further his representation questioning the propriety of such an action of the Civil Surgeon, was never considered. It was further urged that the persons, who belong to the same class or category, were still working on their adjusted/promoted post but no action has been taken against them. Additionally, it was set forth that he had continued for a long period in service and hence, his services deserved to be better utilized on the post of Assistant keeping in view the concept of experience. 3. The stand put forth by the writ petitioner was combatted by the State contending, inter alia, that the said order of cancellation was passed in view of the decision rendered by this Court in L.P.A. No. 448 of 2005, which was disposed of on 7.7.2005 which has been affirmed in Civil Appeal No. 4386 of 2006 decided on 10th October, 2006. The learned Single Judge, as is evident from the order impugned, placed reliance on the decision rendered by the Division Bench in L.P.A. No. 448 of 2005 and came to hold that the contention that there was violation of principle of natural justice did not merit consideration; that the petitioners as well as the other petitioners in other - 4 - writ petitions were members of technical grade and their job was to work in the field but they conveniently got themselves placed as the Clerks in the non-technical cadre; that the claim of some of the petitioners, who were absorbed by virtue of Government decision, was not substantiated; that the controversy has already been settled by the Division Bench which has been affirmed by the Apex Court; that the claim to be adjusted because of some experience would be travesty of justice and no equity can be claimed by them as their promotion/adjustment is through the backdoor method as a result of which other equally placed incumbents have been deprived of being considered; that the writ petitioners could claim priority on the post, which are in their channel of promotion but as there was no channel of promotion on the post of Assistant their seeking equivalence on the plea that there was no promotional avenue in the technical cadre is of no significance inasmuch as even in technical cadre the specification of general cadre is different and there is different channel of promotion; and that the petitioners would not be liable to return the salary component which they had received while working in the higher post in view of the orders passed by the Supreme Court in the earlier case. 4. While expressing the aforesaid opinion the learned Single Judge had further held as follows: - “Counsel for the petitioner in C.W.J.C. No. 11227 of 2005 has also raised a plea of discrimination and such plea is raised only in - 5 - paragraph no. 29 of the writ application wherein it has been stated that a number of persons were adjusted from one post to another like the petitioner namely, Sushil Kumar Kanth from Special Cholera Worker to Assistant, Chandeshwar Prasad Deo from Computor to Clerk, Triveni Kant Jha from Family Planning Worker to Clerk, Amit Lal Deo, Voluntary Worker to Assistant. Unfortunately, in paragraph no. 29, there is nothing to show that these persons were so adjusted/promoted in the district of Madhubani but this Court without being technical on the law of pleadings would direct the Civil Surgeon of Madhubani district to find details about these four persons and if it is found that they are still working on the adjusted/promoted post of Clerk, he will take appropriate action in accordance with law keeping in view the Government decision which has been implemented in the case of the petitioners. Such action against all these four persons if they are still continuing on the post of Clerk in the district of Madhubani must be taken and completed in all respect within a period of six months from the date of receipt/production of a copy of this order.” 5. We have reproduced the said paragraph to have a complete picture of the lis at hand. 6. We have heard Mr. Umapati Jha, learned counsel for the appellants and Mr. Y.P.Sinha, learned Additional Advocate General-V for the State. 7. Learned counsel for the appellants has submitted that the learned Single Judge has not taken into consideration that there has been violation of principles of natural justice despite the fact that they were visited with adverse civil consequences. It is also urged by - 6 - him that they have worked for a considerable length of time and, therefore, their reversion/shifting is unsustainable in law. 8. Mr. Y.P. Sinha, learned Additional Advocate General-V for the State supporting the order of the learned Single Judge submitted that the order passed by the learned Single Judge cannot be flawed inasmuch as it is based on the earlier order passed in L.P.A. No.448 of 2005 which has been affirmed by the Apex Court wherein the issue of similarly placed employees of the same department was dealt with. 9. A Division Bench of this Court in L.P.A. No. 448 of 2005 has held that the order of reversion was bad in law. After the matter travelled to the Apex Court their Lordships have expressed the view as follows: - “The reasons which weighed by the respondent-State to hold that the promotion was illegal does not suffer from any infirmity. Class III employees could not have been promoted as they belong to the technical cadre and the promotional posts related to non- technical cadre. That apart the Class III employees were already holding Class III post and, therefore, there was no question of promotion to the same class. So far as class IV employees are concerned, their promotion was also not considered in terms of statutory provision. The quota of promotion to Class III from Class IV is fixed and the procedure is provided for deciding the question of promotion. The promotions were granted without placing their cases before the Establishment Committee and the Committee which accorded approval was not properly - 7 - constituted, and the reservation policy was not followed and promotions were given without adopting the procedure relating to advertisement. The High Court also noted that the appointments were made by the Civil Surgeon though a ban had been imposed by the State Government on appointments. Therefore, the order of reversion in each case can not be faulted.” 10. The aforesaid decision, as is patent, squarely covers the case of the appellants. It is submitted by Mr. Jha that some employees have been illegally continuing in the higher post. As noted above, the learned Single Judge has directed for making an enquiry. That apart, none of them has been made parties but their promotion is questioned. Thus from both the angles, we perceive no reason for interfering with the order of the learned Single Judge and accordingly it is affirmed. 11. Consequently, the letters patent appeals, being, sans merit, stand dismissed without any order as to costs. (Dipak Misra, CJ) (Shiva Kirti Singh, J.) The Patna High Court Dated the 27th January, 2010. Pawan/NAFR