IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12307 of 1995 MAHENDRA PRASAD Versus THE STATE OF BIHAR & ORS ----------- For the petitioner: M/S. Azeem and Suraj Prasad Ray, Advocates. For the respondents: Mr. Maruth Nath Ray,J.C. to S.C.XI. ------------ 3. 21.8.2008. The petitioner was initially appointed as a ‘Sweeper’ in the Health Services and posted at T. B. Hospital, Koilwar, Bhojpur. The petitioner has challenged the orders contained in annexures- 7 and 8 dated 19.8.1995 and 23.8.1995 respectively by which the petitioner has been reverted from the post of clerk to the post of ‘Sweeper’. Learned counsel for the petitioner submits that he had been duly promoted vide annexure-5 by the Establishment Committee to the post of a clerk vide Memo No. 180 dated 19.7.1994 and by the impugned orders, the order of his promotion has been cancelled without mentioning any reason except to say that the Auditor had objected to the promotion, and as such, the petitioner was to be reverted to the post of a ‘Sweeper’. From perusal of the annexures-7 and 8 which are the impugned orders of reversion, it appears that the authorities also sought to recover the amount which was paid to the petitioner as a result of the said promotion. It has been held by this Court in the case of Ram Binod Singh-Versus-Bihar Electricity Board reported in 2007(3) P.L.J.R. page 398 that if the promotion is granted or the pay is fixed at the - 2 - higher level under the bonafide view that the authorities doing so believed that they did have the power to make the fixation or to grant fixation and if there was no mis-representation on behalf of the petitioner, in such case an order of recovery should not be passed. Thus, as far as the order of recovery of excess pay granted to the petitioner during the period which he was working as a clerk, I have no hesitation in quashing that part of the impugned order contained in annexure-7. Learned counsel for the State has submitted that there are different Circulars of the Government which show that the promotion from the post of Class-IV can not be granted without the consent of the Director-in-chief, although those Circulars have not been brought on record, so the court has no way of examining them or deciding this issue. Learned counsel for the petitioner submits that the petitioner was granted promotion by the Establishment Committee after considering the fact that the petitioner had acquired the qualification required for the said post and the fact that the petitioner had worked for a considerable time as on class-IV post, the petitioner would be entitled to be considered for promotion to a higher post. In the result, I direct that the petitioner should file an application within one month on receipt of this order through the Superintendent of T. B. Hospital, Koilwar, Bhojpur where the petitioner was posted, who will forward the same with his recommendations if any, to the Director-in-chief, Health Department, - 3 - Bihar, Patna. The Director-in-Chief, Health, Respondent No.2 will consider the Circulars regarding grant of promotion from Class- IV to Class -III posts and pass an order according to the law within a period of four months after receiving of copy of the representation. The Superintendent of T. B. Hospital, Koilwar, Bhojpur, should forward the representation alongwith his recommendation within a period of six weeks after receiving the representation This application is disposed of with the aforesaid observations. U.K. (Sheema Ali Khan,j)