IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1432 of 2002 Binod Kumar Singh, son of Late Sadhu Saran Singh, resident of Village Alawalpur, P.S. Gaurichak, District- Patna, at present Assistant, Health Department, Government of Bihar, Patna. ….. Petitioner Versus 1.The State Of Bihar 2.The Secretary, Personnel and Administrative Reforms Department, Government of Bihar, Patna 3.The Secretary-cum-Commissioner, Health, Medical Education and Family Welfare Department, Govt. of Bihar, Patna 4.The Joint Secretary, Health, Medical Education and Family Welfare Department, Govt. of Bihar, Patna …… Respondents ----------- For the Petitioner : M/s Ashok Kumar Jha and Dhirendra Nath Jha,Adv. For the State : Mr.Nirmal Kumar Sinha,Adv. ----------- O R D E R 8. 26/08/2009 Petitioner in this writ application has prayed for quashing of Memo No.1673(s) dated 1.12.2001 (Annexure-10) issued by the Joint Secretary, Health, Medical Education and Family Welfare, Government of Bihar, Patna by which, after 19 years of service as Assistant, petitioner has been reverted to the non- existent post of routine clerk. Further prayer has been made for restraining the respondents from making any recovery as a consequence of such reversion. 2. As per the case of the petitioner, he was initially appointed as routine clerk on compassionate ground due to death of his father in harness, although, as per his contention, he was fit to be appointed as Lower Division Clerk/Assistant by dint of his qualification. When he came to know that other persons, - 2 - in similar circumstances, were later on promoted/appointed to higher post considering their eligibility, he represented to the authorities and on consideration of his representation, he was appointed on the post of Assistant in the pay scale of Rs.730- 1080 by order dated 14.10.1982 vide Annexure-1. Later on, as per requirements under Joint Cadre Act, petitioner appeared in the departmental examination of Hindi Noting and Drafting and was declared successful vide notification dated 28.2.1989, as contained in Annexure-2. He also appeared in the departmental examination and was declared successful vide office order no.92 dated 5.6.1996, as contained in Annexure-3 and also cleared the second paper of the departmental examination which was notified by order dated 15.4.1998, vide Annexure-4. in the meanwhile, considering the satisfactory service of the petitioner, his services as Assistant was confirmed with effect from 14.10.1987 by office order dated 22.12.1992, vide Annexure-5. Counting his services on the post of Assistant with effect from 14.10.1982, he was allowed first time bound promotion by office order dated 22.12.1992 vide Annexure-6. 3. However, Petitioner was served with a show cause notice through office order dated 16.7.2001 vide Annexure-8, mentioning that his promotion as assistant, vide Annexure-1, and his confirmation, vide Annexure-5, were subject to approval of the Personnel and Administrative Reforms Department. He was informed that - 3 - the Personnel and Administrative Reforms Department has now clarified that no repeated promotions on higher post/pay scale can be granted to an incumbent on compassionate ground, as has been granted to the petitioner. Therefore, he was asked to show cause within fifteen days as to why he should not be reverted from the post of Assistant to his basic post of routine clerk. 4. Petitioner replied to the said show cause notice by filing his reply on 30.7.2001, vide Annexure- 9. In his reply, he specifically raised four specific contention which have been mentioned in paragraph 16 of the writ application also. In the writ application, petitioner’s specific contention is that without at all considering the points raised by him in his reply to show cause, respondent Joint Secretary has rejected his reply by the impugned order, vide Annexure-10. 5. Counter affidavit has been filed by respondent nos.3 and 4 in the case sworn by the Under Secretary of the Department. It is stated in the counter affidavit that on the compassionate ground itself, petitioner was first appointed as peon vide department order no.150 dated 31.5.1975 w.e.f. 7.6.1975; then as routine clerk w.e.f. 12.12.1975; and then the third time as Assistant vide Annexure-1. However, this his appointment as Assistant was subject to concurrence of Personnel and Administrative Reforms Department, which has now refused concurrence on the ground that a person can be appointed on compassionate - 4 - ground only once. It is also stated in the counter affidavit that proposal of the department to treat the petitioner as a probationer on the post of Assistant was also turned down on the ground that unless he passes the examination organized by the Subordinate Service Selection Board for recruitment as Assistant, petitioner cannot be declared as probationer. It is stated that this advice had approval of the Chief Minister. Finally, it is stated that follow up action was started by the department for implementing the advice of Personnel and Administrative Reforms Department. It is stated that the reply of the petitioner to the show cause was considered by the authority concerned in detail and was found as not satisfactory and hence was rejected. 6. From the pleadings noticed above, it is clear that the entire case of the petitioner in the writ application is that the specific issues raised by him in his show cause reply have not been considered by the respondent Joint Secretary at all while rejecting the same and while passing the order for his reversion to the post of routine clerk. From paragraph 16 of the writ application, as well as show cause reply of the petitioner (Annexure-9), it is clear that the petitioner had raised four specific issues in his reply, namely, (i) appointment on the post of Assistant prior to 30.8.1988 shall be deemed to be valid in view of sections 3 and 9 of the Joint Cadre Act; (ii) appointment of similarly situated person has been - 5 - upheld by a Division Bench of this Court and he has been granted all consequential benefits, he has also given example of another person also by naming both the persons in his show cause who were appointed as Assistant in similar circumstances; (iii) his reversion after 26 years of satisfactory service and 19 years of satisfactory service as Assistant will be against stability of service, promissory estoppels, equity and natural justice; and (iv) his appointment as Assistant on 14.10.1982 cannot be called into question on the basis of circular no.4211 dated 12.4.1984 as no circular can be made operational retrospectively. 7. Now, coming to Annexure-10, from a bare reading of it, it appears that the background of the case has been noticed by the Joint Secretary in his order and the opinion of the Personnel and Administrative Reforms Department before recording his conclusion in the third paragraph of the order. In the third paragraph of the order, it is said that in view of the advice of the Personnel and Administrative Reforms Department, show cause was asked from the petitioner which was received, and after scrutiny, the same has been found as unsatisfactory and therefore while rejecting the same, orders as contained in Annexures-1 and 5 to the writ application were cancelled with immediate effect and petitioner was reverted to the basic post of routine clerk. Except for this expression, there is no whisper in the impugned order of the Joint Secretary that the issues raised by - 6 - the petitioner in his show cause were in any manner considered and nothing is in the said order to reflect that the respondent Joint Secretary had at all applied his mind to the said issues or had even gone through the said show cause reply of the petitioner. 8. Although, the issue of non-application of mind and non-consideration of the contentions of the petitioner made in his show cause reply by the respondent Joint Secretary has been specifically raised in the writ application, Learned counsel for the State could not advance any arguments on the same. The counter affidavit is also conspicuously silent about the said issue. Except for the pleading that the petitioner could not get the benefit of appointment/promotion on compassionate ground thrice as per opinion of the Personnel and Administrative Reforms Department and show cause notice was issued and order of reversion of the petitioner was passed on the said advice of the Personnel and Administrative Reforms Department, nothing has been mentioned at all in the counter affidavit as to in what manner the contentions raised by the petitioner in his show cause reply was considered by the respondent Joint Secretary before rejecting the same and passing order of his reversion. Thus, it is apparent that there has been complete non- application of mind and non-consideration of the show cause reply of the petitioner by the respondent Joint Secretary while rejecting his show cause and passing order of reversion vide Annexure-10. - 7 - 9. Apart from the present case, showing a typical non-application of mind by the authority concerned, upon allotment of subject matter, and while dealing with the cases of Group II(ii), comprising mostly of service matters of employees of Government, Statutory Organizations and semi Government Organizations, this Court has come across several writ applications filed in this Court, and pending since long, which, in the opinion of this Court, would not have been necessitated to be filed at all, had a little indulgence been granted, and a little application of mind would have been made, in time, by the controlling officers/appointing authorities of the employee- petitioners in respect of their grievances being raised now in their writ applications. 10. This Court found that thousands of cases claiming arrears of salary, difference of arrears of revised salary, grant of promotion to higher scale/grade from due date and/or from the dates juniors were granted the same, grant of seniority, and similar other claims in respect of their entitlement as incident of service, are being filed by the employee petitioners and remain pending in this Court for years, over and above the thousands of writ applications with claims of retiral benefits. In most of the cases, petitioners pray for issuance of writ in the nature of writ of mandamus to the concerned authorities for order for grant of such claims for which, according to them, the petitioners became entitled under the law to get as - 8 - a consequence of their service conditions and for consideration and disposal of their representations, filed before them and pending from prior to the filing of the writ application in this regard. In most of the cases, no order of the controlling officer/ competent authority/ appointing authority are placed on record through a counter affidavit, finally denying such claims, raised by the petitioners through their representations, with reasons thereof. In absence of any denial of the claim(s) of the petitioners by the State Government authorities through counter affidavit, or by a reasoned written order, no issue stands formulated in the cases for this Court to decide, and the only order required to be passed in the cases is of disposal of the writ application with a direction to the concerned authority to consider and dispose of the representation of the petitioner within a time frame. 11. Due to pendency of such writ applications in this Court for quite long, and representations having been filed in most of the cases long back and prior to the filing of the writ applications, while directing the concerned authorities to dispose of the representation, this Court has been, in most of the cases, allowing the petitioners to file a fresh representation or fresh copy of representation with all details for convenience of the authorities concerned, to be considered and disposed of within a time frame. 12. Therefore, in such type of cases, this Court has been passing orders in the following terms : - 9 - “ “ In spite of passage of more than ____ years, nothing has come on records of this case, by way of counter affidavit or otherwise, to show that the claims of the petitioner have been considered and/or denied by the competent authority or have been even considered. Learned counsel for the respondents is also not in a position to contend that the claims of the petitioner are in active consideration of have been considered and disposed of by the competent authority by now, in any manner. In the circumstances, in view of delay caused in the case, this Court has no option but to dispose of this writ application with the following directions:- 1. Petitioner must file a fresh copy of representation (annexed as Annexure -___ with the writ application) before respondent no.____, within one month from today along with a copy of this order. The representation must contain all the claims of the petitioner distinctly and in separate paragraphs and must accompany documents connected with his service history and other documents/circulars/orders etc. on the basis of which petitioner asserts his right to get the claims. 2. The concerned respondent, upon receipt of the representation, with a copy of this order, shall immediately take it into consideration, and, if necessary, after hearing the petitioner in person or through representative, as he may feel proper, shall pass final orders within three months of the receipt of the same. In case the concerned respondent is not the competent authority to pass final orders in the matter, he shall refer the matter within two months with his detailed consideration and definite opinion in respect of each claim to the competent authority for passing final orders in the matter, who, after hearing anyone and after examining any records as he may deem necessary, shall pass final orders in the matter within one month from the date of receipt of reference from the concerned respondent. 3. The final order of the concerned respondent or of competent authority or the reference order of the concerned respondent sent to the competent authority must show that (i) each and every claim of the petitioner has been noticed; (ii) each and every claim has been separately considered and a definite finding/opinion has been arrived at in - 10 - respect of each and every claim with regard to its admissibility or inadmissibility and (iii) all the relevant laws/circulars/orders etc. in respect of each and every claim have been taken into consideration for its acceptance or rejection by the said final order. 4. All consequential orders, in respect of the admitted claims, must also be issued along with the passing of the final order, and payments of any consequential monetary benefits must be ensured within one month of the passing of the said final order and issue of the said consequential orders. 5. The said final order must be served upon/communicated to the petitioner within the said three months and it must clearly mention the grounds and findings for rejecting any claim with reference to specific law/circular/order for coming to that finding. It goes without saying that this Court has not gone into the claim of the petitioner on merits which shall be considered and decided by the respondents within the time fixed as above and strictly in accordance with law. ” ” 13. By passing such type of orders in individual cases, large number of writ applications are disposed of. The only effect of such an order is to make the competent authority consider the representation of the petitioner and take a final decision with regard to the pending claims. But it is a matter for consideration as to whether this was at all required at the first instance ? The competent authority is supposed to perform the public duty assigned to the post he holds. But, as a holder of the post, he is also under an obligation to look after the service conditions of the subordinates working under him and under his control. It is his duty and responisibiliy to see to it that his subordinates and - 11 - employees working under him in different grades get their due in accordance with law and timely to which they become entitled to as a concomitant to their employment. It cannot be denied that failure to give his due to an individual employee, particularly an employee of a lower grade, causes frustration in him and compels him to enter into unwarranted litigation, involving immense loss of his time and money, for what was due to him at the first instance itself on the basis of rules, regulations etc. of the Government, which, also seriously affects their sincerity and efficiency in performance of their own duties. 14. No body can deny that service benefits are required to be granted to the employees automatically and in due time. If it is granted so, it obviously acts as a morale booster and definitely acts as an incentive to improve their efficiency in performance of their duties. Also that, if the said benefits are granted to the employees in due time and as per their entitlement, in accordance with law, the competent authority and/or the controlling officers can always demand a reciprocal response from those employees by showing improvement in performance of their duties. If the competent authorities are conscious of their this basic duty towards the employees working under them and under their control, and show a little concern in the such matters, thousands of writ applications which are filed in this Court only for the purposes of making the competent authorities perform their duties and consider - 12 - the claims of their subordinate employees, through a mandamus of this Court, can be avoided. Although it is a matter of enquiry, but from a common impression, one can conveniently assess that out of the total writ applications relating to service matters filed in this Court in a year, more than 60% are of this type where no substantial dispute arises for adjudication by this Court. These type of writ applications, which could be avoided if the competent authority showed a little diligence and concern and would have applied their mind in the matter of grievances of their subordinates, are cause of substantial overburdening of the Court and add to its backlog and pendency. This Court is conscious of the fact that backlog and pendency in this Court may be attributable to other factors also, but this cannot justify indifference to it of those who can help easing out the situation. 15. However, this Court has also noticed that, mere disposing of the writ application by issuing mandamus to the competent authority to dispose of the pending representations of the petitioners within a fixed time frame does not end the matter there. In a large number of cases in spite of receiving orders of this Court, the competent authorities do not look into the grievances of their subordinates, and fail to take a decision in respect of the same with objectivity and in time. The result is that in large number of such cases contempt applications are filed in this Court for taking action against the concerned authorities for - 13 - non-compliance of the mandamus issued by this Court in the writ applications. At times, after receiving a copy of the contempt application, and after a number of adjournments, the concerned authority passes order, in respect of the claims of the petitioners-employees, by mechanically rejecting the same. However, as technically order of the Court stands complied with, contempt applications are generally disposed of with liberty to the petitioners to challenge the said order of the authority in a fresh writ application. Thus, second round of litigation starts in this Court, and fresh writ applications are filed which again remain pending for years and are ultimately disposed of finding that the rejection of the representation of the petitioner was mechanical or suffered from non- application of mind or was a non-speaking order or suffered from non-consideration of issues and claims raised by the petitioner in the representation, (or reply, as in the present case). As a natural consequence, order is quashed with a fresh direction to the concerned authority to consider the claim (or reply) of the petitioner afresh in accordance with law and dispose of the same by a fresh speaking order. This goes on and on, many a times, with rounds of litigation, involving huge waste of time and money of the petitioner-employee, till he either superannuates from service or till he gets exhausted by running to this Court or he dies waiting for grant of his legitimate claims; and his heirs do not find time, - 14 - energy and resources to continue with the litigation. By that time, public money, number of times more than what the employee was claiming or could have got, is spent in repeated journeys of officials to Patna in connection with the case, in filing pleadings and in meeting the professional remuneration of State counsels for assistance to the Court on their behalf in such cases. This all happens because of only one reason; that the competent authority/controlling officer did not consider the right of the government employee to get his legitimate claims of service benefits in accordance with law at the time it became due to him. This Court wonders whether is it not the high time that the Government should look into the matter and give it a thought and take necessary steps to remedy the situation ? 16. Good governance not only means delivering public good and putting the State on expressway of economic growth; it also means, and in fact the same very substantially depends on good and efficient administration and efficient functioning of the Government up to the grass root level. Surely, if a Government employee has to spend substantial part of his service career, and a considerable part of his hard-earned money, in running to courts for grant of his legitimate dues, which at the very first instance should have been granted to him automatically, his quality of performance of his duty does definitely get adversely affected. Moreover, only when a government - 15 - servant is given his due as per law, his controlling officer can legitimately expect and can also demand from him to reciprocate by giving his best to the duty assigned to him, which should also be consciously kept in mind by the controlling officers/competent authorities while dealing with their subordinate employees and employees under their control. Although, out of the three wings of the State, as per common man perception, Judiciary may be having the highest average rate of disposal of files (cases), but this does not mean that it should be further overburdened for sheer inaction on the part of subordinate members of the other wings of the State. 17. This Court has also found that, from time to time, State Government has been issuing directions to the subordinate authorities for timely performance of their duties. The Subordinate authorities while considering the claims of the employees working under them are also required to look into the law applicable to their claims. This Court has also come across stringent warnings issued by the State Government to the subordinate authorities to make them performance of their duties. One such example came to the knowledge of this Court while dealing with the matters of retiral benefits of the Government employees. While examining the relevant government circulars/orders issued in the matter, and disposing of a batch of cases of Government employees in respect of pending claims of their retiral benefits with certain directions, vide an order dated - 16 - 26.9.2008 [2008(4) PLJR 533], this court noticed that Cabinet of Ministers had taken a decision in a special meeting held as far back as on 10th May, 1974 to the effect that unnecessary delay in disposal of pension matters should be treated as corruption and action should be initiated for stringent punishment against the concerned Government officer in this regard. The said Cabinet decision was communicated to all concerned by memo no. 1080F dated 9.10.1974. In the said order this Court found several other Government circulars and orders emphasizing urgency in deciding pension claims of retired employees by the competent authorities. But it is apparent that Government directions