IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6849 of 2003 Ganesh Kumar, Son of late Muni Sao, Resident of Village + P.O. + P.S. Kurtha, District Jehanabad, at present posted as Clerk in Additional Primary Health Centre, Pondil, Kurtha, District Jehanabad. -------- Petitioner Versus 1. The State of Bihar. 2. The Secretary and Commissioner, Health Medical Education and Family Welfare Department, Govt. of Bihar, Patna. 3. The Director-in-Chief, Health Services, Bihar, Patna. 4. The Collector-cum-District Magistrate, Jehanabad. 5. The Civil Surgeon-cum-Chief Medical Officer, Jehanabad. 6. The Incharge Medical Officer, Additional Primary Health Centre, Pondil, Kurtha, Jehanabad. ---------- Respondents ----------- 3 19.08.2010 Heard learned counsel for the petitioner and counsel for the State. The petitioner’s prayer to the following effect:- “1. That, this writ application is being filed for quashing the order vide Memo No.786 dated 21.6.2003 issued under the signature of Civil Surgeon-cum-Chief Medical Officer, Jehanabad by which the petitioner’s promotion to the post of Clerk has been cancelled and thereby he has been posted against the vacant post of Class-IV under Primary Health Centre, Kurtha. By the aforesaid order it has been decided to recover the excess amount paid to the petitioner on account of promotion, in installment from his salary. This application is also 2 being filed for commanding the respondents not to interfere in the peaceful discharge of duty by the petitioner to a Class-III post of Clerk. This application is also being filed for holding that the impugned order dated 21.6.2003 is illegal, arbitrary and without any lawful justification. This application is also being filed for commanding the respondents not to recover the amount which has been paid to the petitioner on account of his promotion, from the salary of the petitioner.” gets answered from his own document contained in Annexure-6, wherein, the Civil Surgeon of Jehanabad had circulated a notice to all the controlling authority to forward the name of all the Class-IV employees, who were matriculate for their being considered for promotion on Class-III post. It is the claim of the petitioner that in view of the aforesaid requisition the petitioner was promoted on the post of Clerk on 15th June, 1995. It is this promotion which has been cancelled by the impugned order dated 21.6.2003 on the ground that the procedure made for such promotion was never 3 gone into. The post of Clerk in the district is the basic post and there are two sources of recruitment, namely, direct appointment or filling 25% thereof by way of internal recruitment from eligible matriculate Class- IV employees by holding an internal departmental examination. That is how the State Government in the circular dated 11.2.1985 has laid down the detailed procedure for filling up 25% Class-III post by way of internal recruitment. That is not promotion and in fact only an appointment by way of internal recruitment. The procedure was also is that all the Class-IV employees will be asked to appear in a qualifying examination and on the basis of the result of the qualifying examination as well as number of vacancies available on Class-III post, the persons would be arranged as per the seniority and they would be appointed on the Class-III post by way of internal recruitment. Admittedly, all these aspects were never gone into as would be clear from reading of Annexure-6 & 7. 4 Once this aspect becomes clear, this Court would find no error in the impugned order of cancelling such illegal promotion given to the petitioner on 15.6.1995. Counsel for the petitioner then would submit that the petitioner has been also subjected to certain recovery on the amount drawn by him. This writ application was filed on 23.7.2003 but when the same was heard on 30.7.2003, the case was adjourned on the prayer of the petitioner and thereafter the case has remained pending. In view of the fact that the order of recovery has already been acted upon and the amount has also been recovered, this Court would find it difficult to direct for refund of the amount specially when the alleged promotion of the petitioner was rank illegal order of promotion. That being so, this application is wholly misconceived and the same is dismissed accordingly. Rsh (Mihir Kumar Jha, J.)