IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.7687 of 2009 Sushil Kumar Singh, son of Late Rajeshwar Singh, resident of Mohalla – Ganga Bagh (Mandroja), P.S. – Tatarpur (under Kotwali), District – Bhagalpur ………….. Petitioner Versus 1. The Tilka Manjhi Bhagalpur University through the Vice- Chancellor 2. The Vice-Chancellor, Tilka Manjhi Bhagalpur University, Bhagalpur 3. The Registrar, Tilka Manjhi Bhagalpur University, Bhagalpur 4. The Finance Officer, Tilka Manjhi Bhagalpur University, Bhagalpur ………………… Respondents ---------------------------------- 05. 24.10.2011 Heard learned counsel for the petitioner and counsel, representing Tilkamanjhi Bhagalpur University, Bhagalpur. Petitioner was initially appointed as Assistant in Tilkamanjhi Bhagalpur University, Bhagalpur on 18.04.1963. Continuing on the post of Assistant for several years, finally he was granted promotion on the post of Section Officer vide University’s Order No. 145/2002, dated 26.06.2002, issued under the signature of Registrar, Tilkamanjhi Bhagalpur University, Bhagalpur. Petitioner remained in service for six months after being promoted to the post of Section Officer and superannuated on 31.12.2002. Petitioner’s claim is that on account of his promotion to the post of Section Officer, his salary 2 should have been fixed in the pay-scale of Rs. 6500- 10500/- and pension should also have been fixed in the same pay-scale. However, his pension was arbitrarily fixed under the pay-scale of Rs. 5500- 9000/- and the gratuity was also fixed in the reduced pay-scale. The University thereafter without giving any show-cause-notice as well as without offering any opportunity of being heard, issued an office order, bearing no. 225 / 2003, dated 30.07.2003, whereby the promotion order dated 26.06.2002 was cancelled. The petitioner, who was promoted to the post of Section officer on account of such cancellation of promotion, was treated as Assistant. Prayer of the petitioner in this Writ Application is for quashing of the University’s Order no. 225 / 2003, dated 30.07.2003, cancelling the promotion given to the petitioner to the post of Section Officer. The petitioner in the Writ Application has stated that since, cancellation of promotion has been made after superannuation, as such, there was no entry made in the Service-Book of the petitioner, so far the cancellation of his promotion is concerned. The cancellation order had been issued completely in violation of the statutory provisions as wells as 3 rule of natural justice. In the counter affidavit filed on behalf of the University, there is an admission of this fact that the petitioner had been promoted to the post of Section Officer but the same was withdrawn with effect from the date of issuance of promotion order dated 26.06.2002 vide Office Order no. 225/2003, dated 30.07.2003 and the same cancellation order had been circulated vide Memo No. Ro/Spl/9693- 9831/2003, dated 30.07.2003 and entry had also been made in the Service Book of the petitioner. Counter affidavit filed on behalf of the University is completely silent on this point, as to whether any opportunity was allowed to the petitioner before cancelling his promotion order and the procedure legally and mandatorily required to be followed for cancellation of such promotion order, had been observed. It has also not been stated in the counter affidavit that the petitioner was not eligible for being promoted to the post of Section Officer, as such order of promotion was cancelled. What are the eligibility criteria which an Assistant had to meet in order to be promoted to the post of Section Officer has also not been disclosed in the counter affidavit. Since, counter affidavit is 4 completely silent on these points, as such impugned order of cancelling promotion, do not seem to be just and legal. In the given facts and circumstances of the case, I am of the view that the University could not have issued cancellation order, ignoring all legal and statutory requirement, for canceling promotion given to the petitioner, who was eligible for such promotion and following the procedure, promotion order was passed. For these reasons, the office order, bearing no. 225/2003, dated 30.07.2003, issued by the Registrar, Tilkamanjhi Bhagalpur University, Bhagalpur is quashed, so far it relates to writ petitioner. The Respondents are directed to fix the pension of the petitioner in the promotional scale of Section Officer and make making payment of arrears of pension on its re-fixation in the promotional scale. Petitioner’s pensionary benefits should also be calculated and paid to him, attached to the promotional post. Counsel appearing for the University submits that a liberty should be allowed to the University for taking steps in accordance with law for cancelling promotion given to the petitioner, since it 5 has not been revealed in the counter affidavit of the University that there is an statutory provision under which any promotion given to an employee while in service, can be cancelled after his superannuation. No such liberty can be allowed to the Respondent University unless there is legal and statutory provision for taking such an action. University is free to take any action, only in consonance with statutory and legal provision, if petitioner was not entitled for such promotion or procedure for giving such promotion had not been followed. Accordingly, this Writ Application is allowed. SKM (Mridula Mishra, J.)