IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1187 of 1997 RAGHUNANDAN PRASAD SINGH, son of late Iswardhari Singh, resident of village Ganokhar, P.O. Atari, P.S. Atari, District Gaya, at present residing at Shyam Bhawan West Lohanipur near Railway Kathpool, P.S. Kadamkuan, District Patna … Petitioner Versus 1. THE STATE OF BIHAR through the Secretary, Public Health Engineering Department, having his office at Vishveshvarya Bhawan, P.S. Sachivalaya, District Patna 2. The Engineer-in-Chief, Public Health Engineering Department, having his office at Vishveshvarya Bhawan, P.S. Sachivalaya, District Patna 3. The Superintending Engineer, Public Health Engineering Design and Planning Circle No.2, 3rd Floor, having his office at Vikas Bhawan, P.S. Sachivalaya, District Patna 4. The Executive Engineer, Public Health Engineering Design and Planning Division No.6, 3rd Floor, Vikas Bhawan, P.S. Sachivalaya, District Patna 5. Sri Dev Prasad Singh, son of Sadhu Sharan Singh, resident of village Brij Narainpur, P.S. Danapur, P.O. Daudpur, District Patna … Respondents ----------- 8. 11.5.2011 No one appears for the petitioner. Counsel for the State is present. Despite service of notice on respondent no. 5 no one has appeared on his behalf. In this writ application the prayer of the petitioner reads as follows: “4.(a) That the impugned order dated 26.12.1996 vide office order no. 83 as contained in Annexure 1 issued by Superintending Engineer, Public Health Engineering, Design and Planning Circle No.2 Patna cancelling the promotion of the 2 petitioner in senior selection grade with effect from 1.4.1984 be quashed. (b) That the impugned order dated 26.12.1996 as contained in Annexure 2 vide office order no. 84 issued by Superintending Engineer, Public Health Engineering Design and Planning Circle 2, Patna giving the promotion in senior selection grade to respondent no.5 against the statutory rule of Bihar Board Miscellaneous Rule 1958 be quashed. (c) That the impugned order dated 19.12.1996 as contained in Annexure 3 issued by Engineer-in-Chief Public Health Engineering Department on the basis of which impugned order dated 26.12.1996 as contained in Annexures 1 and 2 having been passed recommending the promotion of respondent no.5 in senior selection grade when it did not pass the final accounts examination, be quashed.” From the perusal of the record it is clear that the petitioner’s promotion given in Senior Selection Grade in the year 1984 was sought to be cancelled after giving him a show cause notice dated 7.6.1996, as contained in Annexure 13, which was issued in view of a representation filed by 3 respondent no.5, who after his retirement had claimed promotion on the post of Senior Selection Grade with effect from 1.4.1981. It is also clear that the petitioner had filed an exhaustive show cause reply, as contained in Annexure 14, wherein he had apart from the other fact questioned the eligibility of respondent no.5 of being promoted as Senior Selection Grade Assistant on the ground that he had not passed the departmental examination as prescribed under Rule 157 of the Bihar Board Miscellaneous Rules. The petitioner had also given certain justification for not cancelling his 10 years old promotion but unfortunately the impugned order that was passed by the authority on 26.12.1996 does not even remotely refer to any of the issue raised by the petitioner in his show cause reply. As a matter of fact there seems to be also no justification in notifying the promotion of respondent no.5 on the same date immediately after cancelling 12 years old promotion of the petitioner. This Court in fact is amazed with the interpretation of Rule 157 as has been 4 sought to be done by the Engineer-in-Chief in his letter dated 19.12.1996 (Annexure 3), inasmuch as when the Rules require any and every Assistant to pass departmental examination for earning any promotion, the clarification issued by him that since respondent no.5 had already been promoted on the post of Head Clerk without passing a departmental examination and thus his promotion as Senior Selection Grade Assistant could not be withheld on the ground of his not passing the departmental examination. The issue with regard to passing of the departmental examination being condition precedent for earning promotion in Muffasil cadre of Clerk/ Assistant has been upheld by the Full Bench of this Court in the case of Maheshwar Prasad Singh Vs. State of Bihar and others and its analogous cases, reported in 2000(4) PLJR 262, this Court will have no hesitation in holding that the order reverting the petitioner from the post of Senior Selection Grade Assistant being in violation of the principles of Natural Justice (containing no reason much less any 5 consideration to his show cause reply) as also order of promotion issued in favour of respondent no.5 cannot be sustained. As this Court had not stayed recovery of the amount, and the impugned order was already given effect to, and the respondent no. 5 is also not represented before this Court, this Court would give liberty to the Engineer-in-Chief of Public Health Engineering Department to reconsider the whole issue in the backdrop of Rule 157 of the Bihar Board Miscellaneous Rules and the State Government’s circular on the subject which have been also interpreted by this Court in the case of Maheshwar Prasad Singh (supra). It is, however, made it clear that if the respondents would not be in a position to make recovery from respondent no.5 of any monetary benefit that was extended to him on account of the impugned order of his promotion passed after his superannuation in terms of Annexure 2, that will not stand in the way of the petitioner in claiming his legitimate amount of salary and emoluments which was recovered from him on the basis of the impugned order contained 6 in Annexure 1. Additionally, this Court would direct that the respondents should also consider the case of the petitioner for restoring the benefit of Senior Selection Grade in terms of the earlier order of his promotion, if the same was/ is inconsonance with Rule 157 and the law laid down by this Court in the case of Maheshwar Prasad Singh (supra). This application is, accordingly, allowed. Annexures 1 and 2 are hereby quashed and the respondents are directed to do the needful in terms of this order within a period of six months from the date of receipt/ production of a copy of this order. (Mihir Kumar Jha,J.) Surendra/