IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11442 of 2003 GOPAL GOSWAMI, S/o Late Ram Kishun Goswami, resident of village Majhuwa Premraj, P.O. Sarsi, P.S. Sarsi, District Purnea at present Mohalla Dhelwan near New Bypass Road, P.S. Jakkanpur, District Patna … Petitioner Versus 1. THE STATE OF BIHAR through its Secretary, Road Construction Department, Bisheswaraiya Bhawan, Baily Road, Patna 2. The Engineer-in-Chief cum Additional Commissioner cum Special Secretary, Road Construction Department, Bisheswaraiya Bhawan, Baily Road, Patna 3. The Chief Engineer (Mechanical) Mechanical Wing, Road construction Department, Bisheswaraiya Bhawan, Baily Road, Patna 4. The Superintending Engineer (Mechanical) National Highway Mechanical Circle Bisheswaraiya Bhawan, Baily Road, Patna 5. The Executive Engineer, (Mechanical), National Highway, Mechanical Planning Division near Airport, Patna … Respondents. ----------- 7. 18.1.2010 Heard counsel for the petitioner and the counsel for the State. The prayer of the petitioner originally in this writ application when it was filed on 21.10.2003 read as follows: “i) For commanding and directing the respondents to make payment arrear of salary with effect from 28.5.1997 to 30.9.2001 @ pay scale of Rs. 4500-7000 for the post of Senior Mechanical Grade II which was granted to the petitioner on 28.5.1997 vide Memo No. 858 Patna dated 28.5.1997 as contained in Annexure 2 to this writ petition. ii) For commanding and directing 2 the respondent to correct/ modify the Memo No. 2573 Patna dated 28.12.2001 as contained in Annexure 5 to the writ petition by which the petitioner has been granted pay scale of Rs. 3050-4590 with effect from 1.10.2001 in place of pay scale of Rs. 4500-7000 with effect from 28.5.1997 the date on which the petitioner was granted promotion from the post of Junior Mechanical Grade II to Senior Mechanical Grade II. iii) For commanding and directing the respondents to make payment of interest on the dues at the suitable rate to the petitioner for undue delay of payment.” By a supplementary affidavit the petitioner has sought to amend the date of 30.9.2001 by replacing it to 31.7.2003. The prayer is allowed. Counsel for the petitioner would submit that during the pendency of this writ application the respondent Junior Engineer has passed an order, Memo No. 444 dated 14.5.2008 (Annexure „B‟ to the counter affidavit filed in this Court on 17th July, 2008) wherein the petitioner‟s promotion on the post of Senior Mechanic Grade II given 3 with effect from 28.5.1997 has been cancelled without notice to him and consequently the petitioner‟s salary and emolument as prayed in this writ application have been brought under the zone of controversy. Counsel for the petitioner in this context has also drawn the attention towards an order dated 18.3.2008 in C.W.J.C.No. 2676/2007 as clearly mentioned in the aforementioned order dated 14.5.2008 and in this regard he would point out that even when this Court had made it clear that the recovery from the petitioner and one Raj Kumar Prasad could be made only after giving notice to them, the authorities have passed the aforementioned order without giving any notice to the petitioner. Counsel for the State on the other hand would submit that there was no question of petitioner or for that purpose others being promoted by the order dated 14.5.2008, inasmuch as all of them were in the work charge establishment wherein there is no concept of promotion. Counsel would also submit that it was on account of illegal promotion given to the petitioner that 4 others also have started claiming the benefit including payment of salary thereof and as such, when this Court in the order dated 18.3.2008 in C.W.J.C.No. 2676/2007 had given such liberty to also recover the amount from the petitioner as also one Raj Kumar Prasad, the competent authority after applying himself to the facts of the case of the petitioner had passed the impugned order and to that extent pendency of this writ application would not have stood a bar especially when an observation was made by this Court in the aforementioned order dated 18.3.2008 in C.W.J.C.No. 2676/2007. In the opinion of this Court the moment the respondents have found the petitioner to have drawn any excess amount which was sought to be recovered even in terms of the order of this Court dated 18.3.2008 in C.W.J.C.No. 2676/2007 filed by one Abhinandan Sharma, they were required to give notice to the petitioner informing him the reasons for such recovery. The petitioner was definitely not a party to C.W.J.C.No. 2676/2007 so as to be visited any penal consequences even without notice 5 and/or opportunity of hearing. As a matter of fact this Court also in the said order dated 18.3.2008 had clearly held that if the respondents were not prepared to pay the same amount on account of similar promotion given to Abhinandan Sharma, also promoted by an order dated 28.5.1997 alongwith the petitioner, the respondents were required to recover the amount paid to the petitioner and one Raj Kumar Prasad only after giving notice to them. In that view of the matter, this Court must hold that the impugned order dated 14.5.2008 which would come in the way of the petitioner in getting relief as originally prayed in this writ application is bad only on account of violation of the principles of natural justice. Consequently while this Court would set aside and quash the order vide Memo No. 444 dated 14.5.2008, as contained in Annexure „B‟ to the counter affidavit filed by the State, this Court would direct now the petitioner to file a show cause reply as to how his promotion given to him vide Memo No. 858 dated 28.5.1997 was justified when 6 he was not working in regular establishment and still remained the part of the work charge establishment. Upon cause shown, if any, by the petitioner within a period of three months from the date of receipt/production of a copy of this order, the respondents would reconsider the matter and pass an appropriate order in accordance with law. For the aforementioned period the respondents would not recover any amount beyond what has already been recovered and in the event it is found that the payment made to the petitioner pursuant to the order of promotion dated 28.5.1997 was justified, any amount already recovered from the petitioner would also be refunded back to the petitioner. If the respondents, however, would pass a similar order, as one dated 14.5.2008, they would be required to record reasons at least meeting the issue raised by the petitioner in his show cause reply. Let it be made clear that this Court has not gone into the question of entitlement of the petitioner on merit and has simply quashed the order dated 14.5.2008 7 on account of its being violative of the principles of natural justice and therefore, the Chief Engineer (Mechanical) of Road Construction Department, would be at liberty to pass the appropriate order in accordance with law within the aforementioned time frame. With the aforesaid observations/directions this writ application is disposed of. (Mihir Kumar Jha,J.) Surendra/