IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7308 of 2003 1. DASRATH PRASAD, son of Late Ram Dahin Sao, resident of Village- Jiryun Dehri, P.S.-Dehri, District-Rohtas. 2. Meghnath Bhagat, son of Late Fauzdar Bhagat, resident of Village- Manikpur, P.S.-Indrapuri, District-Patna. 3. Ram Bachan Ram, son of Rutu Ram, resident of Village-Bhaliwari, P.S.- Indrapuri, District-Rohtas. 4. Sukhdeo Sharma @ Mistri son of Late Saheb Mistri, resident of Village- Pipara, P.S.-Jamhaur, District-Aurangabad. Versus 1. THE STATE OF BIHAR , through its Chief Secretary, Old Secretariat, Patna. 2. The Commissioner cum Secretary, Water Resources Department, Sinchai Bhawan, Patna. 3. The Chief Engineer (Mechanical), Water Resources Department, Old Secretariat, Patna. 4. The Executive Engineer (Mechanical) Irrigation Mechanical Division, Dehri-on-Sone, Rohtas. ----------- 3 7/11/2009 Heard counsel for the petitioners and counsel for the State. Prayer in this writ application reads as follows:- “(i) Issuance of a writ in the nature of certiorari for quashing of the notifications dated 12.3.2003 vide its letter nos. 225, 227, 231 and 232 whereby and whereunder the Respondent no. 4 has passed an order for cancellation of the promotion given to the petitioners way back in the year 1991 by the order of the Superintending Engineer (Mechanical), (ii) Issuance of any other writ or writs, order/orders, direction/directions by which the petitioners are directed to continue in their respective posts without reverting back to their earlier posts.” With reference to the aforementioned prayer counsel for the petitioners would invite attention of this Court not only towards the impugned order but also the statement made in paragraph 18 of this application. A conjoint reading whereof would lead to inescapable 2 situation that the impugned order against the petitioner came to be passed even without application of mind. In the earlier judgment of this Court dated 25th July, 2000 in C.W.J.C. No. 8786 of 1991 in paragraph no. 7 the learned Single Judge while allowing the writ application had made it clear the impugned order dated 24th October, 1991, by which the petitioners of this case as well as others including respondent nos. 5 to 15 of C.W.J.C. No. 8786 of 1991 were given promotion on the higher post of fitter from the post of Khalasi/Helper earlier held by them, was bad as also unsustainable. However this Court had restricted the adverse effect of the order setting aside the earlier order dated 24th October, 1991 only in respect of respondent nos. 5 to 15 as would be clear from reading of paragraph no. 7 of the judgment which is quoted hereinbelow : - “In the facts and circumstances, as the impugned order has been passed without consideration of cases of similarly situated persons and there is nothing on the record to suggest that the posts are promotional posts of Khalasi/Helper and as the order was issued without any recommendation of a Selection Committee, the impugned order dated 24th October, 1991 is set aside, so far as it relates to the 5th to 15th respondents. The respondents are directed to fill up the posts in accordance with law after consideration of cases of al the eligible persons, who come within the zone of consideration.” Grievance of the petitioners in paragraph 18 of the writ application is that he respondents after receipt of the aforementioned judgment had blankly made in applicable in each and every persons giving higher post on the basis of same selection which was confined only to respondent nos. 5 to 15. In this context the petitioners have also explained that no show cause notice and/or opportunity of hearing 3 was given to them before passing the order reverting them from the posts with a direction also to make recovery from the salary drawn by them. Paragraph-18 of the writ application, in fact, is clear and categorical statement in this regard which reads as follows : - “That on the basis of the aforesaid order the department without applying its mind and despite the fact that these petitioners were not respondents in the C.W.J.C. No. 8786 of 1991 and the impugned order was only concerning Respondents nos. 5 to 15 passed an order reverting those petitioners back when they were neither the juniors to the petitioners nor were they respondents in that writ application relying on the judgment of this Hon’ble Court in C.W.J.C. No. 8786 of 1991.” Though a counter affidavit has been filed by the Respondents sworn by one Uma Kant Paswan holding the post of Executive Engineer (Mechanical), Irrigation Mechanical Division, Dehri, but the same appears to be only by way of completing a formality, crucial statement in paragraph 18 of the writ application has not been even touched in the aforesaid counter affidavit rather the counter affidavit containing only eight paragraphs, out of which six of them are formal paragraphs only paragraph nos. 3 and 4 thereof are relevant which is quoted hereinbelow:- “3. That the brief facts of the case is that the petitioner along with other 21 Khalasi/Helper Hammarmam were working in workcharge establishment before 24.10. 1991. On 24.2.1990 Chief Engineer (Mechanical) ordered to fill the 60 vacant Technical sanctioned post of Class-III. Accordingly and as per direction a committee was formed in the chairmanship of Executive Engineer, Irrigation Mechanical Division, Dehri who after proper interview and test prepared a list in which 21 employees including the petitioner were selected finally for absorption on the various technical posts of Mechanic, Welder, Fitter, Carpenter and blacksmith. The selection committee divided total 4 200 marks into two parts. First part of 50 marks was kept for seniority and next 50 marks was kept for trade test, Each candidate was given four types of jobs and accordingly their marking were done as seen the list of marks, in Annexure-II. 4. That it is stated that by the order dated 25.7.2000 in C.W.J.C. No. 8786 of 1991 Jai Ram Pandey and others Vrs. State and others the Hon’ble Court set aside the promotion cum absorption order dated 24.10.1991 issued by the Superintending Engineer, Irrigation Mechanical Circle, Mithapur, Patna (Annexure-3 and 4 of the writ application) considering that the absorption/promotion was not according to law. As such Chief Engineer (Mechanical) Water Resources Department Patna vide his letter no. 328 dated 10.2.2003 (and Executive Engineer, (Mechanical), Irrigation Mechanical Division, Dehri vide his letter no. 225 dated 12.3.2003 cancelled the promotion/absorption of employees as per the order/direction of Court, against which the petitioners approached the Hon’ble Court.” From the aforementioned limited stand taken in the counter affidavit case of the petitioners especially as pleaded in paragraph 18 remains unanswered. Even otherwise it becomes admitted from the another annexures of the writ application including copy of the writ application of C.W.J.C. No. 8786 of 1991 that petitioners were not respondent no. 5 to 15 and in fact such respondents are as follows : - 5. Rameshwar Ram, son of Imli Choudhary, resident of village Sheoganj, P.S. Dehri- On-Sone, District-Rohtas. 6. Samiullah Khan, son of Raja Khan, resident of village-Babuganj, P.S.-Dehri, District- Rohtas. 7. Jag Narayan Singh, son of Shri Bhimal Singh, resident of Village-Dahaur Tola, P.S.-Dehri, District-Rohtas. 8. Surya Nath Prasad, son of Shri Lakhan Ram, resident of village-Berkap, P.S.-Dehri, District-Rohtas. 9. Rajnath Sharma, son of Shri Balkaran Sharma, resident of Village-Mednipur, P.S.- 5 Sasaram, District-Rohtas. 10. Prabhu Ram, son of Shri Lakhan Singh Yadav, resident of Village-Barapathan, P.S.-Dehri, District-Rohtas. 11. Ramjee Singh No. II, son of Shri Ramkrit Singh, resident of Village-Patanwa, P.S.- Indrapuri, District-Rohtas. 12. Jiwit Sharma, son of Shri Bansropan Sharma, resident of Village-Bishrampur, P.S.- Sheosagar, District-Rohtas. 13. Ram Ekbal Bhagat, son of Jagnnath Bhagat, resident of Village-Pipra, P.S.-Baunsi, District-Aurangabad. 14. Sheosagar Pandey, son of Late Raghubit Pandey, resident of village-Dhopdiha, P.S.- Nasariganj, District-Rohtas. 15. Shyam Bihari Sharma, son of Shri Chedi Sharma, resident of village-Pachama, P.S.- Hasan Bazar, District-Bhojpur. It would thus be clear that such counter affidavit is of no use and avail of this Court for deciding the question involved in this case. An inescapable position which would thus emerge is that the petitioners though given higher post of fitter after undergoing of selection in view of order issued by the authority and having been given financial benefit thereon were suddenly sought to be reverted back to the lower post either without issuance of show cause notice or without application of mind to the fact that the petitioners being not respondent nos. 5 to 15 of C.W.J.C. No. 8687 of 1991, they could not have been straight way made to suffer on account of the order passed in the aforementioned writ application. Since this Court had already passed an interim order dated 26.8.2003 that the order of reversion will be subject to the result of this case, this Court while allowing this writ application on only a 6 technical ground would remit the matter back to the authority to find out as to whether promotion of the petitioners was given in accordance with law and as to whether case of the petitioner would be covered alike respondents nos. 5 to 15 of C.W.J.C. No. 8786 of 1991. since the petitioners have now know import of the impugned order, they instead of waiting for issuance of show cause notice and service on them, will now be required to file a representation explaining the fact as to how their cases are distinguishable from respondent nos. 5 to 15 and further how would they say that the order dated 24th October, 1991 regarding their promotion on the higher post when it was issue, was backed by a recommendation of the selection committee. In the event, the petitioners file such representation within a period of six weeks of receipt of copy of this order the authorities shall consider the same and pass a fresh order strictly in accordance with law. For the period of six months, the petitioners will not be subjected to any recovery and/or would not be forced to work on the lower post if unless by virtue of impugned order they have already started working as Khalasi/Helper, the post earlier held by the petitioners. In the event, the respondents would not pass any order within the aforementioned period as indicated above, they would stand precluded in passing any order and/or demoting the petitioners from the post of fitter, as done earlier order dated 24th October, 1991, but if the respondents in the meantime pass an order adverse to the interest of the petitioners, they will have liberty to seek remedy before the 7 appropriate forum/court. With the aforementioned observations/directions this application is allowed. Annexure-6 series are quashed, but it is made clear quashing of such order will not make the petitioners entitled to work on the higher post or claim salary on the higher post till their individual representation is disposed of. (Mihir Kumar Jha, J.) Abhay Kumar