IN THE HIGH COURT OF JUDICATURE AT PATNA C. REV. No.203 of 2008 1. THE STATE OF BIHAR 2. The Secretary, Co-operative Department, Govt. of Bihar, Patna 3. The Registrar, Co-operative Societies, Govt. of Bihar, Patna 4. The Additional Registrar, Co-operative Societies, Govt. of Bihar, Patna 5. The Joint Registrar, Co-operative Societies, Darbhanga Division, Darbhanga 6. The District Co-operative Officer, Samastipur … Appellants/Petitioners Versus VISHWANATH KUMAR, son of late Asharfilal Mahto, resident of Mohalla and P.S. Laheriyasarai, District Darbhanga … Respondent/Opp.Party with C. REV. No.209 of 2008 1. THE STATE OF BIHAR 2. The Secretary, Co-operative Department, Govt. of Bihar, Patna 3. The Registrar, Co-operative Societies, Govt. of Bihar, Patna 4. The Additional Registrar, Co-operative Societies, Govt. of Bihar, Patna 5. The Joint Registrar, Co-operative Societies, Darbhanga Division, Darbhanga 6. The District Co-operative Officer, Samastipur 7. Shiva Bhushan Thakur at present posted as Joint Registrar (H.Q), Co-operative Societies, Bihar, Patna … Appellants/petitioners Versus VISHWANATH KUMAR, son of late Asharfilal Mahto, resident of Mohalla and P.S. Laheriyasarai, District Darbhanga … Respondent/ Opp.Party ----------- For the Appellant/Petitioner : J.C. to G.A.-6 For the Respondent/Opp.Party : Mr. Pashupati Pd. Sinha, Advocate Mr. Deepak Kumar, Adv. P R E S E N T THE HON'BLE MR. JUSTICE MIHIR KUMAR JHA THE HON'BLE JUSTICE DR. RAVI RANJAN Mihir Kr. Jha, J. Both these civil review applications arise out of the same order dated 7th August, 2008 passed in L.P.A.No. 46/2008. In Civil Review No. 203/2008 while the State of Bihar and its officials are the petitioners, Civil Review No. 209/2008 has been 2 filed basically on behalf of Shiva Bhushan Thakur, the Joint Registrar (Headquarters), Co-operative Societies, Bihar. Learned Advocate General appearing for the petitioners in both the cases, has submitted that there is an apparent error on the face of record in the impugned order dated 7.8.2008 as with regard to existence of the post of Head Assistant which had become the basis for not only dismissing L.P.A.No. 46/2008 filed by the State of Bihar and its officials but also initiating criminal proceedings against Shiva Bhushan Thakur, Joint Registrar (H.Qrs.), Co-operative Societies, Bihar, Patna. Per contra, Mr. Pashupati Prasad Sinha, learned counsel appearing on behalf of the respondent- writ petitioner Vishwanath Kumar, has submitted that there is no such error whatsoever much less any apparent error on the face of record which would require review of the impugned order dated 7.8.2008 in L.P.A.No. 46/2008. In order to appreciate the aforementioned submission of both the parties it would be first necessary to notice some of the relevant facts giving rise to the impugned order dated 7.8.2008 in L.P.A.No. 46/2008 arising out of an order dated 28.8.2007 in C.W.J.C. No. 5196 of 2007. In this regard from the connected records it is found that the writ petitioner Vishwanath Kumar had filed the aforesaid connected writ application in this Court 3 being C.W.J.C.No. 5196/2007 for the following relief: “That this application is for quashing the order issued vide Memo No. 203 dated 1.3.2007 contained in Annexure 1 issued by respondent no.5 (Joint Registrar, Co- operative Societies, Darbhanga Division, Darbhanga) by which he has posted/ transfer the petitioner in vacant post of the office of District Co-operative Officer, Samastipur from the date of joining i.e. 20.12.2006, which is contrary to the direction of this Hon‟ble Court passed in C.W.J.C.No. 8976/2006, dated 5.12.2006 as well as the order issued vide Memo No. 1583, dated 26.3.2007 by respondent no.4 (Additional Registrar, Co-operative Societies, Bihar, Patna) contained in Annexure 2 by which he has observed that the petitioner has already been relieved from the office of Joint Registrar (respondent no.5) for joining in the State of Jharkhand and in view of the order of this Hon‟ble Court dated 5.12.2006 the salary of the petitioner will be paid from the date of joining. Such order is also contrary to the decision of this Hon‟ble Court. Such action of the respondents are arbitrary, illegal, contrary to the provision of this Hon‟ble Court and fit to be quashed.” As would be noticed from the aforementioned prayer the writ petitioner Vishwanath Kumar had moved this Court against an order of his transfer and posting dated 1.3.2007 and the consequential order dated 26.3.2007 directing payment of salary of 4 the writ petitioner by the Joint Director, Co- operative Societies, Darbhanga Division, Darbhanga. It was the case of the writ petitioner in the writ application that having been appointed on the post of Assistant in the Co-operative Department on 26.2.1982 he had been confirmed on his post of Assistant by an order dated 11.5.1985. The writ petitioner had also projected a picture in the writ application that on 18.12.1985 he had been appointed afresh on the post of Steno-Typist and was posted in the office of the Additional Registrar, Co-operative Society, Ranchi against a vacant post of Steno- Typist. Such order of appointment of the writ petitioner Vishwanath Kumar on the post of Steno- typist dated 18.12.1985 was however claimed to have been modified by the Registrar of Co-operative Societies by his office order dated 26.12.1985 shifting his date of appointment on the post of Steno-Typist from 18.12.1985 to 13.3.1985 but the same was set aside by the Secretary in the Department of Co-operative by his order dated 4.3.2004 when the writ petitioner had sought to question his order of transfer dated 30.6.2003 inasmuch as the Secretary of the Department had noticed that the petitioner‟s initial appointment on the post of Assistant could not have been changed by the Joint Registrar of Co-operative Societies by appointing him afresh on the post of Steno-typist. Thus, when the writ petitioner was sent back on the 5 post of Assistant by the order of the Secretary to the Co-operative Department dated 4.3.2004 his seniority from the date of his first appointment on the post of Assistant with effect from 25.2.1982 was restored and it was also ordered that he should be posted in the cadre of Assistant by his controlling authority, namely, Joint Director, Co-operative Societies, Darbhanga Division. The Secretary of the department had however in his order dated 4.3.2004 had also held that the petitioner would not be subjected to any recovery in respect of excess payment of salary made to him against the post of Steno-typist. From the pleadings in the writ petition it would thus be clear that the writ petitioner Vishwanath Kumar had accepted such order of his being restored back from the post of Steno-typist to the post of Assistant without any demur or protest. As a matter of fact when the writ petitioner had raised his grievance with regard to grant of first time bound promotion and the benefit of first ACP basing his claim from the date of his first appointment on Assistant as projected by him before this Court in his earlier writ application C.W.J.C.No. 3089/2005, there would be little to contend that the writ petitioner was and had remained in the cadre of Assistant of Muffasil establishment of Co-operative Department and in fact on that basis alone he was given his first time 6 bound promotion with effect from 12.2.1992 and first ACP with effect from 9.8.1999 vide orders dated 26.9.2005 and 1.10.2005 respectively. In fact the earlier writ application filed by the writ petitioner, C.W.J.C.No. 3089/2005 noticing all these facts was disposed of by this Court on 20.1.2006. It has to be also noted here itself that this Court while giving liberty to the writ petitioner in the order dated 20.1.2006 in C.W.J.C.No. 3089/2005 for filing a representation as with regard to his grievance for an alleged anomaly in his pay fixation had straightway rejected his prayer for assailing his order of repatriation/ allocation of his service to the State of Jharkhand made under an order dated 4.5.2005, pursuant whereof he had also been relieved on 15.5.2005. This Court infact in its order dated 20.1.2006 in C.W.J.C. No. 3089 of 2005 had left the writ petitioner to seek remedy against the said order of allocation of his service to the State of Jharkhand in an appropriate proceeding before an appropriate forum. As a matter of fact when the writ petitioner had wanted to reopen the whole issue by filing a representation pursuant to the observation made by this Court in the order dated 20.1.2006 in C.W.J.C.No. 3089/2005 the Registrar of the Co- operative Societies vide his order dated 24.2.2006 had rejected the same by holding that on being deemed to have been relieved in view of the order of 7 Home Special Department for joining the service in the State of Jharkhand with effect from 20.5.2005, the writ petitioner had no longer remained the employee of successor State of Bihar, especially when he had already been relieved by his controlling authority by an order dated 16.5.2005. It has to be also kept in mind that the writ petitioner thereafter had filed another writ application, C.W.J.C.No. 4838/2006 assailing the aforementioned order of the Registrar of Co- operative Society dated 24.2.2006 which, however, was permitted to be withdrawn by the order of this Court dated 17.4.2006 with a liberty to the petitioner to file a petition challenging his allocation of services to the State of Jharkhand before the competent authority. The writ petitioner thereafter had filed yet another writ petition, C.W.J.C. No. 8976/2006 assailing the decision of his allocation of services to the State of Jharkhand following the cadre division as a result of division of the erstwhile State of Bihar w.e.f. 14.11.2000 and the said writ petition, C.W.J.C.No. 8976/2006 was allowed by this Court by an order dated 5.12.2006 holding that allocation of service of the writ petitioner from the State of Bihar to the State of Jharkhand on the basis of his being Steno-typist was on an erroneous impression, inasmuch as the writ petitioner‟s such appointment on the post of Steno-typist had already 8 been set aside by the Secretary to the Co-operative Department in his order dated 4.3.2004 and he had stood restored to the post of Assistant from original date of his appointment, i.e. 12.2.1982. This Court considering the aforementioned aspect in its order dated 5.12.2006 had also directed the authorities to allow the petitioner to continue as an employee of the truncated State of Bihar as an Assistant in the Co-operative Department till such time a fresh order could be passed in connection with his allocation of service. It was therefore the consequential order passed on 1st of March, 2007 pursuant to the direction of this Court dated 5.12.2006 in C.W.J.C.No. 8976/2006 whereby and whereunder upon acceptance of joining of the writ petitioner on the post of Clerk (Assistant) by the Joint Director of Co-operative Societies, Darbhanga Division, Darbhanga that he was also posted on the vacant post of Clerk (Assistant) in the office of District Co- operative Officer, Samastipur and a consequential order for payment of his salary dated 26.3.2007 with effect from the date of acceptance of joining was also passed. These two orders dated 1st March, 2007 and 26th March, 2007 were actually made the subject matter of the connected writ application, C.W.J.C.No. 5196/2007, wherein a complaint was made by the writ petitioner that the order of his posting as an Assistant on the vacant post of Clerk/ 9 Assistant in the office of the District Co-operative Officer was bad as it amounted to reversion, inasmuch as by an order dated 7.7.2004 the Joint Registrar, Co-operative Society, Darbhanga Division had already promoted him to the post of Head Assistant. In the counter affidavit that was filed in C.W.J.C.No. 5196/2007 the respondent officials of the Co-operative Department had specifically denied the claim of the writ petitioner to have been ever promoted on the post of Head Assistant and to that extent it would be relevant to quote paragraphs 25 and 26 of the writ application C.W.J.C. No. 5196 of 2007, which reads as follows: “25. That in the light of the order of Secretary, Co-operative Department the Joint Registrar (respondent no.5) posted the petitioner as Head Assistant on the basis of his seniority and thereafter by impugned order he has posted as an Clerk in the office of District Co-operative Officer, Samastipur. 26. That only one post of head Assistant has been sanctioned vide notification issued vide Memo No. 2381 dated 31.10.1983 in the office of Joint Registrar (respondent no.5) but he has been posted as an Clerk in the office of District Co- operative Office, Samastipur which is also illegal in the eye of law.” It has to be noted that in the counter affidavit of C.W.J.C. No. 5196 of 1997, paragraphs 10 25 and 26 of the writ application as quoted above was replied by the official respondents (petitioners herein) specifically controverting the claim of the writ petitioner to have been ever promoted to the post of Head Assistant/ Head Clerk as would be apparent from following extract of paragraph 19 of the counter affidavit reading as follows:- “19. That with regard to the statement made in paragraph 25 and 26 of the writ petition under reply it is pertinent to mention here that as per finance Department Resolution No. 660 dated 8.2.1999 concerned with new pay revision with effect from 1.1.1996 only on category and scale of posts of clerks (Assistant) in the Co-operative Department is approved. It is also relevant to mention here that the petitioner was never promoted to the post of Head Clerk (Head Assistant) earlier. Earlier the petitioner was only granted to time bound promotions. The petitioners assertion of working/ posting by the Joint Registrar as Head Clerk (Assistant) in this regard can only be working arrangement on the basis of seniority.” It has to be also kept in mind that the writ petitioner did not enclose the order dated 7.7.2004 in the writ petition on the basis of which he was claiming to have been promoted on the post of Head Assistant and in fact this order was sought to be placed on record after filing of the counter affidavit by way of a supplementary affidavit. The said order dated 7th July, 2004 as with regard to the 11 claim of the writ petitioner to have been promoted to the post of Head Assistant has a vital bearing on the result of this case and therefore, the same is also extracted hereinbelow: dk;kZy;] la;qDr fuca/kd] lg;ksx lfefr;ka njHkaxk izeaMy njHkaxk vk fnukad-----------@ la0 la0] njHkaxk tqykbZ 2004 Jh ykyckcw jk; iz0 iz0 la0] dk;kZy;] la;qDr fuca/kd lg;ksx lfefr;ka njHkaxk izeaMy] njHkaxk dks bl dk;kZy; ds Kkikad 505 fnukad 3@6@04 ds }kjk LFkkukUrfjr LFkkiuk ds fy, fnukad 2-7-04 ds vFk0 ls dk;Z fojfer fd;k tk pqdk gSA mDr fLFkfr esa Jh fo'oukFk dqekj lgk;d tks v/kksgLrk{kjh LFkkiuk dh lcls ojh; lgk;d gS dks v/kksgLrk{kjh dk;kZy; esa iz/kku lgk;d ds in ij inLFkkfir fd;k tkrk gSA g0 A/kus'oj jkeA la;qDr fuca/kd Kkikad 528@ l0l0 fnukad 7 tqykbZ 2004 The learned Single Judge while disposing of the writ application of the writ petitioner, C.W.J.C.No. 5196/2007 as with regard to posting of the writ petitioner on the post of Assistant had, however in her order dated 28.8.2007 had held that the posting of the writ petitioner as a Head Assistant by an office order dated 7.7.2004 against a sanctioned and vacant post of Head Assistant had clothed him with a right to continue against such post and therefore, the subsequent order of his posting dated 1.3.2007 and 26.3.2007 as an Assistant amounted to reversion and consequently the writ application C.W.J.c. No. 5196 of 2007 was allowed by an order dated 28.8.2007 the following observations and directions: “ A counter affidavit has been filed wherein it has been mentioned that the petitioner was never promoted to the post of Head Clerk. Earlier the petitioner was 12 only granted time bound promotions. Petitioner‟s assertion that he was posted by the Joint Registrar as Head Assistant, has not been denied. Simply it has been stated that it was only a working arrangement. Petitioner‟s claim regarding seniority has also not been denied. Neither it has been denied that there is only one post of Head Assistant under Darbhanga Division. This can be treated as admission, that there is only one sanctioned and available post of the Head Assistant in the office of the joint Registrar, respondent no.5 in whole of Darbhanga Division. Transfer is a condition of any government employee‟s service but by way of transfer one cannot be demoted, or be compelled to face adverse situation. Such order of transfer be treated as punitive, and cannot sustain. Accordingly, order dated 26.3.2007 passed by Additional Registrar, Co-operative Societies, Bihar, transferring the petitioner on the lower post of Assistant is quashed. The respondents are directed to restore petitioner‟s posting against the sanctioned post of Head Assistant in the office of the Joint Registrar, Co-operative Societies, Darbhanga Division, Darbhanga. In case the petitioner has not been paid his salary for all these periods, his salary and other allied monetory benefits payable should also be paid.” It is infact this order dated 28.8.2007 of the learned Single Judge in C.W.J.C.No. 5196/2007 which was made subject matter of an appeal, 13 L.P.A.No. 46/2008 at the instance of the petitioners of these review application, namely State of Bihar and its officials. While in the name of Memo of Appeal of L.P.A. No. 46 of 2008 it was categorically asserted that the Registrar, Co-operative Society, was the appointing authority of the cadre of Assistant (Clerk) in the Co-operative Department as also giving promotion on the higher post in the cadre of Assistant (Clerk) of the Co-operative Department and that no order of promotion on the post of Head Assistant had ever been passed by the Registrar of the Co-operative Society and therefore, the order of posting issued by the Joint Registrar, Darbhanga assigning the writ petitioner the post of Head Assistant was itself without jurisdiction and in fact at best could be treated to be only a working arrangement for carrying out the duties of the post of Head Clerk (not Head Assistant), the same in no event could have been treated as a promotion of the writ petitioner to the post of Head Assistant. The same was also further explained by filing of a supplementary affidavit by Shiva Bhushan Thakur in capacity of Joint Registrar (H.Qrs.), Co- operative Society, wherein he had stated as follows: “3. That the statement earlier made in paragraph 19 of the counter affidavit filed by the respondent no.6 in the writ application vide oath no. 8469 dated 31.7.2007 in C.W.J.C.No. 5196/2007 clearly states that 14 (i) There is only one category of post in the Co-operative Department with the post and scale of clerk (Assistant) with effect from 1.1.1996. There is no post sanctioned as Head Assistant in the department till today. (ii) That the writ petitioner was never promoted to the post of Head Clerk/ Head Assistant. (iii) That the writ petitioner was never promoted and posted as on post of Head Clerk/ Head Assistant but as a working local arrangement he was placed on the post of Head Assistant as being a senior in the Darbhanga Division only. 4. That in the para 12, 13, 14, 15, 16, 17 and 18 of the L.P.A. No. 46/08 it is clearly stated that:- The joint Registrar, Darbhanga is not competent authority to grant promotion to the writ petitioner. That the order of the Joint Registrar, Darbhanga of posting the writ petitioner on the post of Head Assistant in his office is a working arrangement considering the seniority of writ petitioner amongst other clerks of the office of the Joint Registrar, Darbhanga. That according to Finance Department resolution no. 660 dated 8.2.1999 the need based higher posts in the clerk cadre of the cooperative department have not been identified with effect from 1.1.1996. That at present all members of the clerk cadre in the co-operative department and on basic grade post that it the post of the clerk/ Assistant. That there are 55 posts of clerks under 15 Darbhanga Division. 5. That it is further stated that with effect from 1.1.1996 as per Finance Department resolution no. 660 dated 8.2.1999 no higher grade posts in clerks cadre of the co-operative department including the post of Head Clerk/ Head Assistant have been identified. Accordingly there is no question of availability of any Head Clerk post and posting on such higher grade post including the post of Head Clerk/ Head Assistant in the Co-operative Department clerk cadre including Darbhanga Division with effect from 1.1.1996. 6. That the Registrar, Co-operative Societies is the competent authority to grant any promotion to the clerks in the co-operative Department. It is further submitted that no promotion to the post of Head Clerk/ Head Assistant has been granted to the writ petitioner and that he continues to work with basic grade of clerk.” The Division Bench, however, in the light of the pleadings on record including the aforesaid supplementary affidavit of Mr. Shiva Bhushan Thakur in its order dated 7.8.2008 in L.P.A. No. 46 of 2008 had held as follows: “2. It has been canvassed before us by the Government Advocate on the basis of the supplementary affidavit filed by Shiva Bhushan Thakur, Joint Registrar (Headquarters), Co-operative Societies, Bihar, Patna that in the entire Cooperative Department there is no post of Head Assistant and, therefore, there is no 16 question of respondent being posted as Head Assistant. It is, thus, submitted that the Single Judge committed an error in passing the impugned order. 3. In paragraph 3(i) of the supplementary affidavit, the following statement has been made:- “There is only one category of post in the Co-operative Department with the post and scale of clerk (Assistant) with effect from 1.1.96. There is no post sanctioned as Head assistant in the department till today.” 4. That the aforesaid statement is palpably wrong is apparent from the notification dated 31st October, 1983, which has been annexed as Annexure 13 with the writ petition. At Sl.No. 5 of the said notification the post of Head Assistant at Darbhanga having been created is mentioned. 5. The Government counsel sought to justify the stand set-up in the supplementary affidavit by stating that upon implemention of the Vth Pay Commission and in view of the resolution No. 660 dated 8.2.1999, the post of Head Assistant is yet to be identified. This explanation does not deserve to be accepted. Nothing has been shown from the resolution No. 660 dated 8.2.99, that the post of Head Assistant which already existed has been abolished. 6. The false affidavit by the Joint Registrar (Headquarters), Co-operative Societies, Bihar, Patna is a serious matter. A senior government officer like him is expected to state truth and nothing but truth in the affidavit but he did otherwise. The practice of filing false 17 affidavit by the Government officer/ official not only requires to be deprecated but also for such perjury, the officer/ official needs to be prosecuted. 7. We, accordingly, direct the Joint Registrar(Judicial) of this Court to file a complaint in the competent court of criminal jurisdiction against Shiva Bhushan Thakur, Joint Registrar (Headquarters), Co- operative Societies, Bihar, Patna having filed a false affidavit before this Court today which is marked „X‟ for identification purpose. The criminal complaint shall be filed against Shiva Bhushan Thakur as expeditiously as possible and in no case later than one month from today. 8. Since there is post of Head Assistant and the respondent has been working on that post for quite sometime pursuant to the directive issued by the Secretary, Co- operative Department, Govt. of Bihar on 3rd March, 2004, the view of the Single Judge cannot be faulted. 9. L.P.A. is accordingly dismissed in limine.” A midst the aforementioned admitted factual scenario learned Advocate General has drawn our attention firstly to the aspect that there was/is no order of promotion of the writ petitioner from the post of Assistant to Head Assistant and in fact the concept of the earlier promotional channel as prevalent in the year 1983 pursuant to the recommendation of 4th Pay Revision Commission