IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7855 of 2003 Uday Prasad, son of late Dhannu Ram, Resident of Village Mustafabad, Police Station Rampur, Distt. Gaya. -------- Petitioner Versus 1. The State of Bihar. 2. The Commissioner and Secretary, Health Department, Government of Bihar, Patna. 3. The Director-in-chief, Health Services, Government of Bihar. 4. The Deputy Director, Health Services (Transport) Karamshala Gulzarbagh, Patna. 5. The Regional Deputy Director, Health Services Magadh Division, Gaya. 6. The District Magistrate, Jehanabad. 7. The Civil Surgeon-cum-Chief Medical Officer, Jehanabad. 8. The Civil Surgeon-cum-Chief Medical Officer, Gaya. 9. The In Charge, Medical Officer, Primary Health Centre, Karpi (Arwal). ----------- Respondents ----------- 12 30.08.2010 Heard learned counsel for the petitioner and counsel for the State as with regard to the following prayer of the petitioner:- “1(I) For issuance of writ in the nature of certiorari or any other appropriate writ for quashing the order contained in Memo no.787 dated 21.6.2003 issued under the signature of Civil Surgeon-cum-Chief Medical Officer, Jehanabad whereby the petitioner has been demoted on the class-IV post after cancelling the promotion and direction was issued to recovere the excess amunt in instalment from the salary of the petitioner with effect from the 2 date of promotion. (II) For issuance of writ in the nature of certiorari or any other appropriate writ for quashing the order contained in Memo no. 182 dated 27.6.03 issued under the signature of the In-charge, Medical Officer, Primary Health Centre, Karpi (Arwal) whereby the petitioner was directed to hand over the charge. (III) For issuance of writ in the nature of mandamus or any other appropriate writ commanding the respondents to allow the petitioner to discharge his duties on class III post instead of class IV till the matter is finally adjudicated. (IV) For issuance of writ in the nature of mandamus or any other appropriate writ commanding the Respondents to reinstate the petitioner on the post of Clerk (class III post) with all consequential benefits including salary.” Mr. Bindhyachal Singh, learned counsel for the petitioner in support of the aforesaid prayer would submit that when the consolidated list was sought to be prepared under the order of the Civil Surgeon for considering the case of all eligible Class-IV 3 employees for their promotion against 25% of Class-III post and pursuant to such exercise, the petitioner was also given promotion on the post of Clerk under the order of the competent authority, namely, Civil Surgeon of Jehanabad district, the impugned order, cancelling such promotion of the petitioner after almost eight years of continuation of his promotion, would be unsustainable either on facts or in law. He would further submit that even if this Court would hold that the cancellation of promotion of the petitioner in absence of undergoing the prescribed procedure for such promotion was unsustainable, even then least the petitioner could not be made liable for refund of his salary drawn against the promotional post, inasmuch as, there was no fraud or misrepresentation on the part of the petitioner. In this context, he would refer to specific assertion of the petitioner in paragraph no.26 of the writ petition and its reply in paragraph no.14 of the counter affidavit to suggest that as there is no denial to the case of the petitioner that 4 others promoted along with the petitioners in the same exercise were continued not only with the similar promotion but also with the monetary benefit, cancellation of the promotion petitioner, in isolation and that too with an order of recovery of salary drawn by him on the promotional post, would be wholly unjustified. Counsel for the State, on the other hand with the help of the counter affidavit, would point out that the Government circular laying down the norms of promotion from Class-IV to Class-III post had always envisaged holding of an internal departmental examination/test, which was not followed in the case of the petitioner and the Civil Surgeon or his establishment committee headed by him had straightway issued the order of promotion of the petitioner without following the prescribed procedure. He would further submit that as the petitioner did not cite those cases about whom there is a reference in paragraph no.26 of the writ petition in his show-cause reply filed to the notice asking him to explain the illegality in his 5 promotion, the petitioner cannot be allowed to raise a new issue in this writ application which was never pressed before the authority. Having given anxious consideration to the aforementioned submission as also on perusing the materials on record, this much becomes clear to this Court that either under the circular dated 11.2.1985 or to the extent the same was superceded by the subsequent circular dated 14.10.1990, as contained in Annexure-14 to the supplementary affidavit, there was no concept of a direct promotion without holding the internal departmental examination/test. It has to be noted that as per the Government policy all Class-IV Matriculates are eligible for their consideration of case by way of internal appointment/promotion on Class-III post and therefore, for judging their eligibility, the Government has prescribed procedure of holding internal departmental test. It has to be kept in mind that there is a full procedure as with regard to the preparation of panel list pursuant to the result of the internal departmental examination/test, 6 wherein, earlier seniority of the candidates securing qualifying marks have to be protected while giving higher Class-III post by way of promotion. The moment such preparation of panel would come into play, the Government rules of reservation and roaster will have to be also followed and therefore, the expression ‘prescribed procedure’ in the circular of the State Government dated 11.2.1985 and its modified version, the circular dated 14.10.1990 laying down full prescribed procedure for filling up the vacant Class-III post from amongst the working Class-IV employees, would be the prescribed procedure and if the same was not at all followed in the case of the petitioner, it would be difficult for this Court to hold that there was a mere irregularity and no illegality in the direct promotion of the petitioner even when no limited departmental examination test was held nor any panel of all eligible class IV employees for their consideration of promotion was prepared. This Court, in fact, on the basis of 7 the averments made by the parties in the respective pleadings as also in the light of the Government circulars, is of the view that as no part of the Government circular fixing the mode and manner for filling up Class-III post was followed in the case of promotion of the petitioner, the same was out and out an illegal promotion given to him. The only difference between the illegal and irregular is that whereas the irregularity can be even subsequently cured but the illegality has no such cure. Thus, this Court would not be in a position to accept the submission of Mr. Singh that there was only some irregularity in the grant of promotion of the petitioner. Once this Court would find that the promotion of the petitioner was granted wholly in an illegal manner and such illegal promotion was cancelled after observing the principle of natural justice by giving the petitioner an opportunity to file his show- cause reply and the same was also considered and rejected by passing the impugned order, there would be no scope for this Court to interfere with the impugned order. 8 The question of recovery of salary in this case after the impugned order in absence of any stay order passed has remained in force for a period over seven years will have to be now decided in the background as to whether the recovery which has already been made from the petitioner is also fit to be refunded. The limited submission of the learned counsel for the petitioner in this regard is that others who were promoted along with the petitioner were not subjected to the recourse of such recovery and there was, in fact, no misrepresentation of fraud on the part of the petitioner in getting his earlier promotion, which was allowed to continue for a period of almost eight years before it was cancelled by the impugned order. This Court on perusal of paragraph no.26 of the writ petition would find that the names of Arun Shankar Kumar, Ravindra Kumar, Chandra Shekhar Kumar, Ganesh Kumar and Jagvir Choudhary had been mentioned about whom it is claimed that they were also given promotion and the same was not cancelled as in the case of the petitioner. Thus from 9 paragraph no.26 of the writ application, at least it does not appear that the case of promotion of he petitioner was comparable with others named therein and that is how, they had not been subjected to any reversion and/or recovery. This part of the case of the petitioner, though has been denied indirectly in the counter affidavit by the respondents by taking a plea that the petitioner had not raised this issue in the show-cause reply filed by him nor had given the names of the aforesaid persons, would require fresh examination by the present Civil Surgeon, Arwal district and if he would find that the plea of discrimination as raised by the petitioner in paragraph no.26 of the writ petition reading as follows:- “26. That it is quite pertinent to state here that the persons namely Arun Shankar Kumar, Ravindra Kumar, Chandra Shekhar Kumar, Ganesh Kumar and Jagvir Choudhary who are also promoted along with the petitioner pursuant to the decision of the same district establishment committee on the same date are still continuing on class III post and have not been demoted. The respondent authorities have adopted a method of pick and choose and the 10 petitioner has been subjected to hostile discrimination.” is correct, he would, after making necessary enquiry from the office of the Civil Surgeon, Jehanabad as also getting records from the concerned office with regard to the petitioner and others, would take his final decision and if it is found that only the petitioner along with some others were subjected to the cancellation of their promotion by leaving the similarly situated persons to still continue with the benefit of promotion as alleged in the aforementioned paragraph no.26, he would pass appropriate order for refunding the amount of salary, which has been recovered from the petitioner. If, however, he would find that the case of the persons, whose names were cited in paragraph no.26, were distinguishable and, therefore, neither they are subjected to order of cancellation of their promotion, nor consequential recovery, he would indicate this in his reasoned order which he would pass by reconsidering the matter relating to the petitoner. It is made clear that there would be 11 no question of re-consideration of the cancellation of promotion and the matter is being remitted back only for limited issue of recovery of the amount of promotional benefit already drawn by the petitioner during period the order of his promotion was continuing. In order to shorten the process and expedite such decision, this Court would give liberty to the petitioner to file self- contained representation putting on record all the evidence that he would like to rely and the Civil Surgeon, Arwal district in consultation with the Civil Surgeon, Jehanabad district would thereafter pass his final order within a period of six months from the date of receipt of such representation filed by the petitioner. It is also made clear that if the petitioner participates and becomes successful in the future selection test conducted in terms of the Government circular for filling up Class-III post, his earlier order of cancellation of promotion and this order, affirming the same, will not stand in his way in getting his due promotion on a 12 Class-III post. With the aforementioned observation and direction, this application is disposed of. Rsh (Mihir Kumar Jha, J.)