IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4442 of 2005 KRISHNA DEO PRASAD Versus THE STATE OF BIHAR & ORS ----------- 03/ 21.01.2010 Heard Mr. Pushkar Narain Shahi, learned counsel appearing on behalf of the petitioner and Mr. Ashutosh Singh, learned assisting counsel to G.P. 8 for the State. Brief facts of the matter is that the petitioner was appointed against the post of Lecturer Assistant on 1.11.1975 (Annexure-1). His services were terminated on 7.12.1976 but he was taken back in service though this time against a Class-IV post of peon by order dated 15.4.1977 (Annexure-2) and on which post he joined on 25.5.1977. The petitioner being aggrieved by this action represented before the authorities for restoration of his original position and which was accepted and by order bearing no. 251 dated 28.6.1990 the petitioner was promoted to the post of Assistant (Annexure-3). Upon a show cause being issued in connection with his promotion to Class-III post contained in memo dated 3.11.1990 (Annexure-4), the petitioner submitted his show cause and which was rejected by an order dated 28.11.1990 (Annexure-5). The petitioner came before this Court in C.W.J.C. No. 8049/1990 and which was disposed of by order dated 1.7.1991 directing the authorities to reconsider the issue (Annexure-6). The matter upon being reconsidered by order dated 22.08.1991, the petitioner was 2 restored his promotion but with effect from 1.7.1991 (Annexure- 7). It is contended that since thereafter the petitioner discharged his duties to the satisfaction of superiors and there were no proceedings in his service career in regard to his discharge of his duties. Around the same time some other similarly placed employees moved this Court upon being denied their placement in Class-III giving rise to C.W.J.C. 7982/1990 (Shashi Bhushan Prasad & Anr. Versus The State of Bihar & Ors). The said writ petition was disposed of by order dated 25.01.1999 (Annexure-8) in light of the order passed in the case of the petitioner in C.W.J.C. No. 8049/1990 directing the authorities to reconsider the issue. Purporting to act in light of the order dated 25.1.1999 (Annexure-8), another show cause came to be issued on 14.8.1999 (Annexure-9) in the name of the petitioner. Although this issue stood concluded by order dated 22.8.1991 (Annexure- 7), nevertheless the petitioner submitted his reply on 26.8.1999 (Annexure-10). No action was taken thereafter by the authorities and the petitioner superannuated with effect from 31.3.2001 while serving against the post of Assistant. It is thereafter that an order came to be issued on 18.4.2001 (Annexure-11) cancelling all promotions with effect from the date of the issuance of the order. As the order was prospective and the petitioner had already retired by the authorities, the order did not affect him, however, the petitioner acting on his wisdom represented before the 3 Principal on 10.9.2001 informing him that he had already retired from service and whereupon a clarification was sought by the Principal, respondent no. 4 by letter dated 12.4.2002 from the Director-In-Chief, Health Services, Government of Bihar, Patna (Annexure-12). It appears from the order dated 4.3.2005 (Annexure-13) that the Principal acting on an oral direction given by the respondent no. 2, the Secretary proceeded to cancel the promotion of the petitioner with effect from the date of promotion itself. Learned counsel appearing on behalf of the petitioner submits that the petitioner having retired with effect from 31.3.2001, the relationship of master and servant stood severed between him and his employer and thus no order cancelling his in service benefits could have been passed by the authorities. He submits that even assuming that the respondents had authority to pass such order, it certainly could not have been exercised with retrospective effect. He submits that the respondents being conscious of this position had initially issued the order dated 18.4.2001 (Annexure-11) canceling the promotions with effect from the date of issuance of the said order. He submits that the respondent-Principal acting on an arbitrary oral direction of the respondent no. 2 as noted in the order has issued the impugned order which is patently illegal, contrary to the service rules and the law on the issue and is fit to be set aside. Learned counsel appearing on behalf of the State 4 supports the impugned action and submits that the very promotion given to the petitioner to the Class-III post was found to be irregular and it is in this background that the impugned order came to be issued and that there is no infirmity in the same. Learned counsel submits that the impugned order had been passed pursuant to the direction of this Court passed in C.W.J.C. No. 7982/1990 dated 25.1.1999 (Annexure-8). He submits that upon enquiry of the matter it came to be noticed that the appointment of the petitioner to the Class-III post was not in accordance with law. Learned counsel thus submits that as the petitioner was holding a post to which he was not entitled hence there was no infirmity in the action of the authorities in canceling the promotion. I have heard the rival contentions advanced on behalf of the parties and considered the materials on record. Law is well settled that the moment a person superannuates from service the relationship of master and servant is severed and thereafter no disciplinary action for imposition of penalty as provided under Civil Services Classification and Control Rules can be taken by the employer. Law is also well settled that after retirement the only action which can be taken by the employer would be governed by the Principles underlying the Bihar Pension Rules or similar rules governing the University employees. It is an indisputed position that no such proceeding was initiated nor any such proceeding 5 could have been initiated for the reason that the action taken by the authorities were not by reason of any grave misconduct or on account of any pecuniary loss caused by the petitioner rather it was a plain and simple disciplinary departmental action and which could not be taken after retirement. The impugned order having retrospective effect also cannot be sustained in view of the law laid down by the Supreme Court in A.I.R. 1966 S.C. 951 ( R. Jeevaratnam Vs. State of Madras). Having regard to the circumstances set forth, the impugned order as contained in Annexure-13 is set aside and the respondents are directed to forthwith release the pensionary dues of the petitioner and other dues within a period of three months from the date of production of a copy of this order. The writ petition is allowed. S.Sb/- (Jyoti Saran, J.)