IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.1164 OF 2004 BRAJ BHUSHAN PRASAD, SON OF SHRI HARIHAR PRASAD, RESIDENT OF VILLAGE SIKANDARPUR, POLICE STATION SANGRAMPUR, DISTRICT EAST CHAMPARAN AT MOTIHARI ……………………………………PETITIONER VERSUS 1. THE STATE OF BIHAR 2. THE SECRETARY –CUM- COMMISSIONER, DEPARTMENT OF HEALTH, BIHAR, PATNA 3. THE DIRECTOR-IN-CHIEF, DEPARTMENT OF HEALTH, BIHAR, PATNA 4. THE CHIEF MALARIA OFFICER, BIHAR, PATNA 5. THE CIVIL SURGEON –CUM- CHIEF MEDICAL OFFICER, MOTIHAR …………………………………………………………………….RESPONDENTS *********** 5 30/11/2010 The petitioner has challenged the order dated 14.11.2003 as contained in Annexure-9 by which the petitioner’s promotion from the post of Class-III to Class- IV has been cancelled. The impugned order further directs that the petitioner should deposit the excess amount of salary which has been paid to him as a result of the promotion by the Civil Surgeon –cum- Chief Medical Officer. The petitioner was working as Ward Attendant on daily wages at the relevant time when he was granted promotion from Class-IV to Class-III by the Chief Medical Officer, Motihari. Annexure-1 is a letter addressed by respondent no. 5 asking for vacancies of Class-III posts from the Office of the Health Department including the Office of the Chief Medical Officer, the Superintendent, Sadar Hospital and district level offices of the Health 2 Department as well as the office of the Medical Officers in the district of Motihari. A reminder was issued on 26.11.1999 asking for the number of vacancies, however, it is not clear whether list etc. was sent to the Civil Surgeon. It is submitted on behalf of the petitioner that he was appointed in lieu of the vacancies demanded by the Civil Surgeon on 29.11.2009 in anticipation of the approval of the Director, Health Department. When the matter was placed before the Director, Health Department, the petitioner’s promotion to the Class-III post was cancelled. The case of the petitioner is that a regular screening was made before promotion and that the petitioner was not given an opportunity to be heard before his promotion to Class-III post was cancelled. It is further submitted that a committee was constituted to examine the irregularity of the promotion made, however without waiting for the result of the committee, the order impugned was passed. The stand of the State is that the promotion was made without following the resolution no. 11243 dated 06th December, 1995 of the Personal and Administrative Reforms Department, Government of Bihar. On perusal of the said resolution, it would appear 3 that 50 per cent of the vacant posts of Class-III employees are to be filled up by direct recruitment, whereas 50 per cent of the vacant posts are to be filled up by promotion from the Class-IV employees. It is further provided in Clause-15 of the said resolution that the Bihar Public Service Commission should conduct examinations of Class-IV employees who seek to be promoted to Class-III. Apparently, the Bihar Public Service Commission has not conducted any examination and it is in fact admitted by both the petitioner and the State that no examination was held while promoting the petitioner. The result is that the petitioner and persons like him have been deprived of an opportunity to get promotion from Class-IV posts to Class-III posts because of laxities of the department/State to hold regular examinations every year for the purpose of such promotions as provided by the circular. Apparently, it would appear that this procedure has not been followed, however, at the same time, the Personal and Administrative Reforms Department, Government of Bihar should consider, whether it is possible to review the provisions of holding an examination every year for the purpose of promotion from Class-IV posts to Class-III posts, to be conducted for the applicants holding Class-IV posts in such a manner as opportunity may be given to 4 persons working against Class-IV posts to qualify for promotion to Class-III posts. . In my opinion, the Personal and Administrative Reforms Department, Government of Bihar should take some decision with respect to the provisions and should allow the In-House departmental examination for the purposes of promotion from Class-IV posts to Class-III posts. Coming to the facts of the present case, it is not known as to how many vacancies were available, the qualifications required, what were the procedure adopted for making such appointments by the Civil Surgeon. I, therefore, stay the order of recovery and direct that the petitioner should file a representation before respondent no. 3, i.e. the Director-in-chief, Department of Health, Bihar, who has cancelled the promotion of the petitioner. Such a representation should be filed with all documents within a period of eight weeks from the date of receipt of a copy of this order. The Director-in-chief will call for the original records which include the proceedings adopted for the purposes of promotion of the petitioner to Class-III post and after considering the records, pass an appropriate orders within a period of four weeks from the date of filing of the representation. The petitioner would be at liberty to annex all such documents in his 5 representation, which would substantiate his stand. I also direct the Principal Secretary –cum- Commissioner, Department of Health, Bihar, Patna to send a request/requisition with respect to modification of the provisions as contained in Clause-15 of the Resolution No. 11243, dated 06th December, 1995, so that appropriate orders of modification may be made by the Personal and Administrative Reforms Department, Government of Bihar as it is unlikely that the Bihar Public Service Commission can conduct examinations for filling up the vacancies of Class-III posts from Class- IV posts on an yearly basis. A method should be derived so that the procedure for promotion from Class-IV posts to Class-III posts is made on a regular basis. This writ application is disposed of with the aforesaid observations and directions. Anand ( Sheema Ali Khan, J. )