IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7348 of 2005 JANARDAN PRASAD YADAV S/O SHRI SHAHDEO PRASAD, R/O MOHALLA-GWALATOLA, BARI KHANJARPUR, P.O. & P.S.-BARARI, DISTRICT-BHAGALPUR. ………….Petitioner Versus 1. THE STATE OF BIHAR THROUGH THE COMMISSIONER-CUM- SECRETARY TO GOVT. DEPTT. OF HEALTH, NEW SECRETARIAT, BIHAR, PATNA. 2. THE DIRECTOR IN CHIEF, HEALTH SERVICES, BIHAR, PATNA. 3. THE SUPERINTENDENT, JAWAHAR LAL NEHRU MEDICAL COLLEGE AND HOSPITAL, BHAGALPUR. …………..Respondents ----------- 05 24.02.2011 Heard both the parties. 2. The petitioner was working on a Class IV post in the Jawahar Lal Nehru Medical College and Hospital, Bhagalpur. He was promoted to the post of clerk along with ten other persons in the year 1994. The petitioner’s case is that he was promoted to Class III post as recommended by Departmental Promotion Committee. After promotion, the petitioner being aggrieved by the fact that the authorities were not paying his salary due to him, on the basis of his promotion, filed a writ application. The writ application was dismissed which was challenged by filing L.P.A. No. 661 of 1996. This Court noticed that there was a Circular of the Government dated 11.01.1991 which provided for promotion of Class III and Class IV employees on the basis of written test. 2 3. It was submitted on behalf of the State that the promotion was wrongly given to the petitioner as written test was not held. This Court while stating all aspects of the matter, did not go into the question of the aforesaid promotion of the petitioner, rather directed that the petitioner, should be granted his monetary benefits. After the order of the L.P.A., the petitioner was still not paid the monetary benefits due to him. As a result of which he filed C.W.J.C. No. 10297 of 2002 which was disposed of on 27.06.2003 with a direction of the Court that the Director-in-Chief, Health Services, Government of Bihar, Patna would consider the representation filed by the petitioner. 4. The representation of the petitioner has been considered vide Annexure-6. On perusal of Annexure-6, it would appear that the petitioner’s case has been rejected on the ground that the Superintendent of the Hospital did not have the power to grant promotion from Class IV and III and, therefore, the petitioner was not entitled for the said promotion and consequential monetary benefits thereof. The Director-in-Chief has further directed that the promotion granted to the petitioner should be cancelled. The order cancelling the petitioner’s promotion has been passed after issuing show cause to him which is contained in Annexure-7. 3 As per Annexure-7, it would appear that the Superintendent of Jawar Lal Nehru, Medical College and Hospital, Bhagalpur, has come to the conclusion that because the out- going Superintendent of the Hospital was to retire, he has applied a pick and choose method and appointed the petitioner on a non-existent post. 5. This Court finds that the reasons given in Annexure-7 are not substantiated by any facts. The authorities concerned, i.e., the Director-in-Chief and the Superintendent of the Hospital ought to have looked into the documents and records and then only could have come to the conclusion that the appointment was not regularly made and that a pick and choose method was involved. The orders do not mention as to the number of candidates who were eligible for consideration to the post of Class III and why the post of Class III was not available or in the words of the authority concerned “non- existent”. It cannot be believed that there are no post of Class III in the Jawahar Lal Nehru Medical College and Hospital at Bhagalpur. Although, it may be contended that there were no vacancies, however, no such detail has been given in the said order. I may state here that the petitioner has brought on record Annexure-8 to show that, in fact, he has been doing/performing the work of typist in Jawahar Lal Nehru 4 Medical College and Hospital at Bhagalpur and his name finds place at end of the letter which indicates that he was performing the duties of typing which work is performed by a Class III employee. It is also not clear to this Court as to whether all persons, who were working or promoted alongwith petitioner, have been terminated from service or not. In any event, since the petitioner was appointed in 1978, it cannot be believed that no Class III post fell vacant between the time when he was duly qualified to be considered for promotion up till now. 6. I, therefore, direct that the State Government, i.e., Director-in-Chief, Health Services, Bihar, Patna and the Superintendent of Jawarhar Lal Nehru Medical College and Hospital should take steps in calculating the vacancies since 1994 in the Jawahar Lal Nehru Medical College and Hospital and if it is found that vacancies are available the petitioner’s case should be considered for appointment in accordance with law vide resolution No. 2215 (Ka) dated 11.02.1985. This writ application is disposed of with the aforesaid observations and directions. Safik (Sheema Ali Khan, J.)