Letters Patent Appeal No.724 OF 2008 ----- RAMDAS YADAV son of Late Kant Lal Yadav, R/O Mohalla and P.O. Lal Darwaza, P.s.Kotwali, Distt-Munger. Appellant Versus 1. THE BIHAR STATE ELECTRICITY BOARD, through its Chairman, Vidyut Bhawan, Baily Road, Patna 2. The secretary, Bihar State Electricity Board,Vidyut Bhawan, Baily Road, Patna 3. The Joint Secretary, Bihar State Electricity Board,Vidyut Bhawan, Baily Road, Patna 4. The General Manager-cum-Chief Engineer, Bhagalpur Electric Supply Area, Bhagalpur 5. The Electrical Superintending Engineer, Electric Supply Division, Munger, 6. The Electrical Executive Engineer, Electric Supply Division, Munger 7. The Assistant Electrical Engineer,Electric Supply Sub-Division,Munger.---- (Respondents) For the appellant :Mr. Chittaranjan Sinha SeniorAdvocate Mr. Rajeev Roy For the respondents :Mr.Vinay Kirti Singh --------- O r d e r 08. 03.7.2009. Heard learned counsel for the parties. Aggrieved by the order dated 10.3.2008 passed by a learned Singh Judge of this Court in C.W.J.C.No.12181 of 2007(Ram Das Yadav Vs. The Bihar State Electricity Board and ors),the appellant has preferred this appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna. The writ petitioner has been reverted from the post of Bill Clerk to a lower grade post. The petitioner was appointed on a certain post of the Bihar State Electricity Board, and was lateron promoted to the post of Bill Clerk. On account of the 2 observations in a writ petition disposed of by this Court on 4.9.1992, it transpired that the petitioner had obtained his promotion in an irregular manner leading to show cause notice dated 3.7.2006, as to why he be not reverted to the post of unskilled Khalasi. On perusal of the relevant materials including the cause shown by the appellant, the respondent authorities, reverted the appellant by order dated 10.8.2007 without any order of recovery for the differential amount of salary for working on the post of Bill Clerk. The petitioner challenged the order by preferring the writ petition which has been dismissed. Learned counsel for the appellant submits that he functioned on the post of Bill Clerk for a long length of time. In any case, the irregularity on the part of the appellant in securing his promotion was discovered on 4.9.1992, and a show-cause notice was issued on 3.7.2006. This delay on the part of the respondents in taking action is hit by the doctrine of condonation. He next submits that the alleged deficiency in the basic qualifications, cannot be examined at this belated stage, particularly in a situation where he has gained experience for a lengthy long time. He relies on the following reported judgments: (i) 1998 (3) PLJR 331 (The Bihar State Road Transport Corporation Vs. Yasoda Devi and others, 3 (ii) AIR 1990 SC 371 (Bhagwati Prasad Vs. Smt. Bhagwati Devi and ors) (iii)1925 Calcutta 87 (L.W.Middleton Vs.Harry Playfair). Learned counsel for the respondents has opposed the appeal. We have perused the material on record and considered the submissions advanced on behalf of the learned counsel for the parties. The appellant was initially appointed as a Khalasi, and was later on promoted to the post of Bill Clerk and he undoubtedly worked for a fairly time. It appears that the order dated 4.9.1992, passed in C.W.J.C.No.1305 of 1991 (Bindeshwari Pandey Vs. Bihar State Electricity Board & ors) led to an inquiry, and the show-cause notice was directed to be issued to the appellant, the relevant portion whereof is reproduced herein for the facility of quick reference. “xxx lE;d leh{kksijkar ik;k x;k fd Jh jke nkl ;kno n~okjk duh; ys[kk fyfid@foi= fyfid ds in ij fu/kkZfjr U;qure “ksS{kf.kd ;ksX;rk u j[krs gq, Hkh vfHkys[kksa esa gsjk Qsjh ,oa rF;ksa dks Nqikdj duh; ys[kk fyfid@foi= fyfid ds in ij fu;qfDr izkIr dh x;h tks ?kksj dnkpkj dk n~;ksrd gSA” (Emphasis added) It is thus evident that the proposed action against the appellant was to be taken because of interpolation in the service records and suppression of material facts in obtaining the order of promotion. The cause shown by the appellant did not find favour with the authorities, and order of reversal was passed but without the requirement of 4 recovery of differential amount of salary. It is thus evident that the appellant has been reverted because of lack of the eligibility criteria, and also for interpolation in the service records and suppression of material facts attributable to him. It is undoubtedly correct to state that the respondents do not emphasize the latter aspect of the matter in their order. They only emphasize the lack of basic qualifications essential for the promotion. On perusal of the entire material on record, however, it appears to us that we are convinced that the appellant had interpolated the service records and ensured suppression of material facts about lack of educational qualifications and was thus able to secure his promotion. Learned counsel for the appellant has relied on the observations of a Division Bench in the case of Bihar State Road Corporation Vs. Yasoda Devi and others 1998 (PLJR) 331, the relevant portion whererof is reproduced hereinbelow for the facility of quick reference. “7.xxx It is not that the respondent by suppressing or playing fraud upon the Corporation has secured his promotion on higher pay scale. The case as set out by the Corporation is that due to some mistake committed by themselves, the promotion was granted. Thus the said plea after lapse of such a long time is not available to the Corporation, besides it hits the principle of natural justice.” xxx (Emphasis added). 5 It is thus evident on perusal of the reported judgment that the same did not involve suppression of facts and fraud and therefore, the same is wholly inapplicable to the facts and circumstances of the present case. Learned counsel for the appellant has also relied on the judgment of the Supreme Court in the case of Bhagwati Prasad V. Smt. Bhagwati Devi and others AIR 1990 SC 371, the relevant portion whereof is reproduced hereinbelow for the facility of quick reference: “6.xxx Practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed education qualifications. In our view, three years experience, ignoring artificial break in service for short period, periods created by the respondent, in the circumstances, would be sufficient for confirmation.” xxx (Emphasis supplied). That was a case adjudicated under the Industrial Dispute Act, and the employee was dealt as daily-rated worker who was confirmed. The question of lack of basic educational qualifications was not of much importance in view of the nature of the job, and actual job experience on the floor was of importance. 6 The nature and content of employment in that case was fundamentally different and in any case, fraud or suppression of facts was not involved in that case. The judgment is inapplicable in the present case. Learned counsel for the appellant has relied on a Division Bench judgment of the Calcutta High Court in the case of L.W. Middleton Vs. Harry Playfair reported in AIR 1925 Cal- 87, a relevant portion whereof is reproduced hereinbelow for the facility of quick reference: “xxx What happened in substance was that Play- fair was practically deprived of all authority and Middleton took up the management himself. We have been pressed to hold on behalf of Middleton that he was constrained to act as he did, because the conduct of Playfair had seriously prejudiced the interest of the estate, and that he could have fully justified his action even if he had dispensed with his services under clause 9 of the agreement. In our opinion, it would be fruitless to investigate whether Playfair had or had not misconducted himself so as to justify his dismissal by Middleton. If a master on discovery that his servant has been guilty of misconduct which would justify a dismissal, yet elects to continue him in his service, he cannot at any subsequent time dismiss him on account of that which he has waived or condoned.” Xxx (emphasis supplied). It is thus evident that on perusal of the judgment that the employer had after due application of the mind and as per a conscious decision, waived the misconduct attributable to the employee and had allowed them to continue in service. The facts of that case thus stood on a different footing. 7 Learned counsel for the appellant has lastly submitted that the appellant should not have been reverted after he had worked for such a long length of time. He is right in submission that the deficiency in the educational qualifications was discovered after the order of the court on 4.9.1992, and the show-cause notice was issued on 3.7.2006. Learned counsel for the respondents is also right in his submission that the appellant had delayed the matter. Secondly, this aspect of the matter has been fully taken care of by the respondents and upheld by the learned Single Judge, by not requiring the appellant to refund the differential amount of salary. We do not find any merit in this appeal. It is accordingly dismissed. (S.K.Katriar,J.) (Jyoti Saran) Ahk/