IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.7883 of 2007 Gupteshwar Prasad Singh, son of late Yamuna Singh, resident of village Dhamni, P.S. Haspura, District Aurangabad … Petitioner Versus 1. The State Of Bihar 2. The Secretary, Department of Health, Medical Education and Family Welfare, Bihar, Patna 3. The Deputy Secretary, Department of Health, Medical Education and Family Welfare, Bihar, Patna 4. The Director in Chief, Department of Health, Medical Education and Family Welfare, Bihar, Patna 5. The Anugrah Narayan Magadh Medical College and Hospital, Gaya, through its Registrar, Gaya 6. The Principal, Anugrah Narayan Magadh Medical College, Gaya 7. The Accountant General, Bihar, Patna 8. The Superintendent, Anugrah Narayan Magadh Medical College and Hospital, Gaya … Respondents ---------------------------------- 4. 26.9.2011 Heard counsel for the parties. Learned counsel for the petitioner while assailing the order dated 25.4.2007 reverting the petitioner from the post of E.C.G. Technician to his original post of Lab. Boy would submit that the petitioner had the requisite qualification as also experience for the said promotional post and as such, the decision taken by the Superintendent of A.N.Magadh Medical College, Gaya giving him such promotion in the year 1989 should not have been interfered with by the next Superintendent on any ground including an audit objection recorded by the audit team of the Competent Accountant General (C.A.G.). He would further submit that when the petitioner had filed his show cause reply explaining the aforementioned facts they were not taken into consideration as would be evident from the perusal of the impugned order, which according to him is not only cryptic but also does not take into 2 account any of the fact stated by the petitioner in defence of his promotion. Counsel for the State with the help of the counter affidavit would however submit that the then Superintendent of A.N.Magadh Medical College, Gaya exceeding his jurisdiction had granted such promotion to the petitioner on the post of E.C.G. Technician which is actually a State Cadre post and in fact when excess salary drawn by the petitioner due to this erroneous promotion was objected to by the Auditors of C.A.G., the Department had no option but to comply the audit objection by taking steps for cancellation of promotion of the petitioner. He would, therefore, submit that when the petitioner was also given an opportunity to file show cause reply and to produce any document to show that the Superintendent of A.N.Magadh Medical College, Gaya had the power, competence and jurisdiction to give promotion on the post of E.C.G. Technician, a State Cadre post, with the Director-in-Chief of the Health Services being its appointing authority, and the petitioner had failed to satisfy the same, the cancellation of his promotion was unevitable and therefore the impugned order would require no interference by this Court. In the considered opinion of this Court the moment the petitioner accepts that the post of E.C.G. Technician is a State Cadre post on which the promotion could be given only by the Director-in-Chief, the Cadre Controlling Authority, it has to be held that the promotion given to the petitioner by the 3 superintendent was wholly illegal and unauthorized. A State Cadre post by way of promotion can be filled only after considering the cases of all the incumbents of the cadre and that too only by the Cadre Controlling Authority. There is nothing on record to show that the post of Lab. Boy is a feeder post and the post E.C.G. Technician is its promotional post. Simply because the Superintendent of one Medical College would find some Lab. Boy to be qualified or competent to work on the post of E.C.G. Technician, he will not become competent to give promotion on the aforesaid post which as noted above is admittedly a State Cadre post. As a matter of fact the case of the petitioner was never considered alongwith other similarly situated Lab. Boys in A.N. Medical College, Gaya and thus even if it be held that the post of E.C.G. Technician was promotional post of Lab. Boy, the grant of promotion to the petitioner in isolation cannot be justified. In that view of the matter, this Court would find no error in the order reverting the petitioner to his original post of Lab-boy on which his absorption was made in A.N. Medical College in view of its Take-over by the State Government. The petitioner, therefore, having been absorbed on the post of Lab. Boy will have to remain on the post of Lab. Boy till his promotion on a higher post is made by the competent Cadre Controlling Authority. There is however yet another facet to the audit objection of CAG, namely as with regard to recovery of excess salary drawn by the petitioner of the higher promotional post of E.C.G. Technician. Normally recovery of excess pay can be made 4 in law only if there has been a definite misrepresentation or a fraud on the part of the employee. Such recovery however can also be made if there is no entitlement and erroneous order has been passed without any malafide. Here in this case while it cannot be conclusively said that the petitioner had misrepresented or played fraud in obtaining his promotion. From the audit objection of CAG as explained in the counter affidavit it becomes clear that the then Superintendent in the year 1979 had given such promotion to the petitioner by exceeding his jurisdiction. In such circumstances, the petitioner can be only made liable for recovery if there be any material to hold that he had actually misrepresented which led to order of recovery. Normally if there is no misrepresentation the petitioner cannot be asked to refund the excess amount of salary, especially when he had worked on the promotional post and it is clamed by him that he had also knowledge and expertise on the post of E.C.G. Technician. In such cases recovery infact will have to be made either from the salary or retirement benefit of the then Superintendent who had given such illegal promotion. This facet of the issue, therefore, will have to be addressed to by the Director-in-Chief of the Health Department and if he comes to a conclusion that the petitioner is also a party to the fraud or misrepresentation in the matter of earning his promotion he may also be saddled with the consequences of recovery of excess salary alongwith the Superintendent of A.N.Magadh Medical College who had given such promotion to the petitioner but if it is found that there was no misrepresentation 5 or fraud on the part of the petitioner the entire recovery will have to be made from the Superintendent, A.N.Magadh Medical College who had given such illegal promotion to the petitioner. As this Court had by an interim order dated 8.10.2007 had stayed recovery till disposal of this writ application, this Court would continue with the said interim protection by directing the Director-in-Chief to take a final decision in the matter of recovery within a period of six months from the date of filing of a representation by the petitioner enclosing a copy of this order. It is also made clear that if the petitioner does not file any representation or a copy of the order is not produced by him, the Director-in-Chief may straightway pass an order for making entire recovery from the petitioner but in the event such a representation is filed by the petitioner, the Director-in-Chief, Health Services, after holding his own enquiry will pass a reasoned order as with regard to proportionate recovery or full recovery from the erring person. Counsel for the petitioner at this stage would also submit that the petitioner has undergone the requisite training and had also become fully competent to discharge the duty of the post of E.C.G. Technician and therefore, when the petitioner’s service despite his reversion was still being utilized in the E.C.G. Department as an E.C.G. Technician, the respondents be directed to at least consider the case of the petitioner for such promotion alongwith others. This Court does not find the said prayer of the 6 petitioner to be unreasonable, inasmuch as if the post of E.C.G. Technician is a promotional post of the Lab. Boy, the petitioner would be entitled for consideration of his promotion by the Director-in-Chief of the Health Services, the competent Cadre Controlling Authority. Though the petitioner has worked on the post and the post has now been lying vacant after reversion of the petitioner and it is he who is still allegedly managing the work of E.C.G. Technician in A.N. Medical College, Gaya despite of his reversion, this Court would direct the Director-in-Chief to also consider this aspect of the matter if the petitioner would file a separate representation for this purpose alongwith a copy of this order. It is however made clear that this Court has given no opinion as with regard to the claim of the petitioner of being eligible and consequently also being given promotion on the post of E.C.G. Technician which infact will have to be decided by the Director-in-Chief strictly in accordance with law. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/