IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4532 of 2005 BHAGYA NARAIN SINGH . Versus THE STATE OF BIHAR & ORS . ----------- 04 03.05.2011 Heard counsel for the petitioner and the counsel appearing for the State. Petitioner has superannuated from his service on 31.8.2004. At the time of his retirement, he was working on the post of Junior Mechanic Grade II in the office of Executive Engineer, Flood Control Division, Thakaraha Shivir, Goaplganj. Subsequent to his superannuation a letter contained in memo no. 219 dated 10.2.2005 was issued by the Chief Engineer, Water Resources Department, Siwan, whereby promotion granted to the petitioner vide order dated 19.10.1979, on the post of Junior Mechanic Grade II initially with effect from 3.10.1978 and subsequently shifted back to 1.1.1972, was cancelled. Prayer of the petitioner is for quashing of order contained in memo No. 219 dated 10.2.2005 (Annexure-6) on two grounds:- (i) The promotion given in the year 1979 to the post of Junior Mechanic Grade II was never questioned by the respondents, till the date petitioner remained in service. 2 (ii) The promotion given to the petitioner way back in the year, 1979 has been cancelled even without any notice to the petitioner. Petitioner was initially appointed as Skilled Helper on 21.8.1967 in the work charge establishment. He was given promotion along with others to the post of Junior Mechanic Grade II vide order dated 19.10.1979, with effect from 3.10.1978. Subsequently vide order dated 21.1.1986 the date of promotion was shifted back to 1.1.1972. During the course of his service, petitioner was given second time bound promotion with effect from 21.8.1992 vide letter no. 874 dated 29.7.1994. At the relevant time, when second time bound promotion was given to the petitioner, no query was made by the respondent authorities regarding the promotion given to the petitioner in the year 1979. However, subsequent to his retirement, the impugned order dated 10….2.2005 has been issued, cancelling his promotion as Junior Mechanic Grade II with effect from 1.1.1972. In view of cancellation of promotion given in the year 1972 to the post of Junior Mechanic Grade II, the petitioner has been allowed first time bound promotion with effect from 27.3.1987. 3 In the counter affidavit filed on behalf of respondent-State, it is stated that in the year 1979, petitioner was not entitled for any promotion, since he was working in the work charge establishment. An employee working in the work charge establishment is not entitled for any promotion, till date he is brought in the regular establishment. Since the petitioner was brought in the regular establishment later on, as such any promotion given to the petitioner prior to the date of his regular employment was illegal and rightly it has been cancelled by the impugned order. In order to explain the delayed action of the respondents it has been stated that for the first time, this illegality was noticed by the respondents when second time bound promotion was being given to the petitioner, with effect from 21.8.1992 vide order dated 24.8.1994 ( Annexure-5). Counsel for the State submits that Annexure- B is the letter which shows that the authority became aware regarding illegal promotion given to the petitioner in the year 1979. I fail to understand that if the respondent authorities came to know about the illegal promotion given to the petitioner in the year 1979 on 24.8.1994,then what was the reason, that no 4 action was taken for its’ cancellation. For complete ten years, till the date writ petitioner remained in service, neither he was given any notice to show cause nor any action was taken by the respondents for cancellation of his promotion given in the year 1979. subsequent to petitioner’s superannuation, impugned order cancelling promotion was issued. Admittedly, without any notice to the petitioner and without giving any opportunity to explain the situation in which promotion was granted to the petitioner in the year 1979. Counsel for the petitioner submits that in the year 1979 it was not the single case of the petitioner, who was granted promotion, while working in the work charge establishment, rather several such promotions were allowed and in no other case an order of cancellation of promotion has been issued. Only petitioner has been identified by the respondents, for passing such arbitrary order. There is no denial by the respondents to such statement of petitioner. Considering all these facts, I find that once petitioner retired from his service, there remained no subsisting relationship of employer and employee 5 between the petitioner and the respondent. At this juncture, there was no occasion for the respondent to pass any order cancelling his promotion, given in the year 1979, specially when the petitioner was not given any notice. Respondents did not allow first time bound promotion to the petitioner, simply for the reason that promotion given to the petitioner was acknowledged by them. Acknowledging this promotion, only second time bound promotion was given to the petitioner. This also goes to show that impugned order issued by the respondent is an after thought. The impugned order has been issued by the respondent in complete violation of the service rules, since there was no subsisting relationship of employer and employee between the petitioner and the respondent. There was no reason for issuing any cancellation order. For all these reasons, I find that the impugned order contained in Memo no. 219 dated 10.2.2005 is fit to be set aside and quashed. The writ application stands allowed. A. Kumar ( Mridula Mishra, J.)