IN THE HIGH COURT OF JUDICATURE AT PATNA LETTERS PATENT APPEAL No.339 of 2011 IN CIVIL WRIT JURISDICTION CASE No. 330 of 2006 WITH INTERLOCUTORY APPLICATION No. 1461 of 2011 IN LETTERS PATENT APPEAL No.339 of 2011 ==================================================== Md. Shabbir Alam, Son of Md. Ahmad Hussain, Resident of Village- Malipur, Police Station-Gashpura, District-Begusarai. …. …. Appellant/Petitioner Versus 1. The State of Bihar through the Chief Secretary, Bihar, Patna. 2. The Commissioner-cum-Secretary, Department of Health, Medical Education & Family Welfare and Deshi Chikitsa, Government of Bihar, Patna. 3. The Director, Deshi Chikitsa, Director of Deshi Chikitsa (Indigenous Medicine), Government of Bihar, Patna. 4. The District Deshi Chikitsa Officer, Begusarai. …. …. Respondents/Respondents ==================================================== Appearance : For the Appellant : Mr. Ajay Kumar, Advocate For the Respondent: Mrs. Nividita Nirvikar, G.P.-3 with Mr. Subodh Kumar Barnwal, A.C. to GP-3 ==================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 4. 3.3.2011. Interlocutory Application No. 1461 of 2011: This application under Section 5 of the Limitation Act is filed by the appellant for condonation of delay of two years and 253 days occurred in filing the Letters Patent Appeal. The reasons for delay are two fold. One, that the appellant first availed of the remedy of review before the learned single Judge. Second, pursuant to the order of the learned single Judge the appellant has been reverted to the lower post of - 2 - Compounder and also the amount of difference in salary for past several years is being recovered from his salary. He, therefore, could not arrange for the finance. On the facts and in the circumstances of the case the delay is condoned. Interlocutory Application stands disposed of. Letters Patent Appeal No. 339 of 2011: This Appeal preferred under Clause 10 of the Letters Patent arises from the judgment and order dated 14th March 2008 passed by the learned single Judge in above C.W.J.C. No. 330 of 2006. In the year 1986, the appellant-writ petitioner joined the service of the State of Bihar as a Compounder (Unani). While he was serving as Compounder on 19th June 1993 he was temporarily appointed as Stenographer-cum-Typist (Hindi). On 13th January 1994 a notice was displayed calling for applications from departmental candidates possessing the qualification of matric and Hindi shorthand and typing for appointment as Stenographer-cum-Typist (Hindi). Pursuant to the said notice the appellant applied for selection and appointment as Stenographer-cum-Typist (Hindi). He was called upon to appear before the selection committee. Pursuant to his selection, by order dated 31st January 1994, he was appointed as Stenographer-cum- Typist (Hindi) in the then prevalent pay scale of Rs.1320-2040. After serving as Stenographer-cum- Typist for more than 11 years, under notice dated 27th August 2005 the appellant was called upon to explain why his promotion as Stenographer-cum-Typist should not be cancelled. According to the respondent authorities - 3 - there was no promotional avenue for promotion of the Compounder as Stenographer-cum-Typist. Promotion of the appellant was, therefore, contrary to law. The said notice was replied to by the appellant on 10th September 2005. The appellant maintained that he was not promoted but was appointed as Stenographer-cum-typist after due selection procedure. Without considering the above reply, by order dated 15th December 2005, the appellant was ordered to be reverted to the lower post of the Compounder (Unani). Feeling aggrieved, the appellant approached this Court in above C.W.J.C. No. 330 of 2006. Pending the petition the service of the appellant was protected. The petition was contested by the respondent authorities. According to the respondents one Abhay Kumar Prabhakar, a Compounder in the State service had claimed a similar promotion to the post of Stenographer- cum-Typist. Therefore, having realized that the appellant’s promotion was illegal he was reverted to the lower cadre in consonance with the principles of natural justice. The learned single Judge accepted the plea of the respondent authorities. In absence of a regular promotional avenue the learned single Judge was pleased to hold that the promotion of the appellant was contrary to law. Once the promotion was contrary to law no right was created in favour of the appellant. He, therefore, could be reverted to the lower cadre even after a long period of 12 years. Consequently, the learned single Judge dismissed the writ petition. Feeling aggrieved the writ petitioner has - 4 - preferred this Appeal. The facts that the appellant had applied for appointment as Stenographer-cum-Typist pursuant to a notice; he was called upon to appear before the selection committee; he was selected for appointment and that he was appointed as Stenographer-cum-Typist by direct recruitment are supported by the contemporary documentary evidence on record. There is no reason to doubt the documents on record. The respondents have also not disputed the said documents. In our opinion, the respondents proceeded against the appellant on a wrong premise that he was promoted as Stenographer-cum- Typist ignoring the fact that he was selected by proper selection process and was appointed by way of direct recruitment. There was no reason for the respondents to treat the appellant as a promotee Stenographer-cum- Typist. To hold that the promotion of the appellant was illegal and contrary to the service rules and to revert him to the lower cadre of Compounder, the sole basis that some other employee also claimed promotion to the post of Stenographer-cum-Typist was erroneous. It is not the case of the respondents that the appellant was not qualified for appointment as Stenographer-cum-Typist or that he was/is not suitable for such appointment. In our opinion, the learned single Judge has erred in not noticing the above referred documentary evidence and in accepting the oral statement made on oath contrary to the documentary evidence. For the aforesaid reasons, we allow this Appeal with cost. The impugned judgment and order dated 14th March 2008 passed by the learned single - 5 - Judge in above C.W.J.C. No. 330 of 2006 is set aside. C.W.J.C. No. 330 of 2006 is allowed. The impugned order of reversion dated 15th December 2005 is quashed and set aside. The respondents are directed to reinstatement the appellant in service as Stenographer- cum-Typist as early as possible but not beyond 31st March 2011. On his reinstatement as Stenographer-cum- Typist the appellant’s pay will be fixed in the pay-scale applicable to the post of Stenographer-cum-Typist. For the purpose of pay fixation and other service benefits, the appellant will be deemed to have rendered continuous service as Stenographer-cum-typist. The period of service as Compounder pursuant to the order of reversion will be treated as service rendered as Stenographer-cum- typist. The appellant will be paid the difference in salary from the date he was reverted to the lower post of Compounder till he is reinstated as Stenographer-cum- Typist. The amount of difference in salary recovered from the appellant will be remitted to him. The aforesaid amounts will be paid on or before 30th April 2011. In the event the respondents fail to pay the aforesaid amounts by 30th April 2011 as directed; commencing from 1st May 2011 the appellant will be entitled to interest at the rate of 10 per cent per annum till the date the said amounts are paid. Pawan/- (R.M. Doshit, CJ) (Jyoti Saran, J)