IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3570 of 2007 Ashok Kumar Chaudhary, son of late Ram Raksha Chaudhary, resident of Village Panchobh, P.S. Bishanpur, District- Darbhanga, at present posted as Head Clerk-cum-Accountant, District Engineer Officer, Zila Parishad Darbhanga -------- Petitioner. Versus 1.The State of Bihar 2.The Secretary, Rural Engineering Development- cum- Panchayati Raj, Government of Bihar, Patna. 3. The Deputy Development Commissioner-cum-Chief Executive Officer, Zila Parishad, Darbhanga. 4. The Chairman, Zila Parishad, Darbhanga 5. The District Engineer, Zila Parishad, Darbhanga ------- Respondents. --------- 8. 22.10.2008 Heard Mr. Hemendra Prasad Singh for the petitioner, Mr. P.K. Verma, learned Advocate Additional General No.11 for respondent nos. 1 and 2, Mr. Yogendra Mishra for respondent nos. 3 and 4, and Mr. Parmatma Singh for respondent no.5. This writ petition is directed against the order dated 6.2.2007 (Annexure-1), and the consequential order dated 7.3.2007 (Annexure-9), whereby the petitioner has been reverted from the post of head-clerk-cum- accountant to the substantive position as Stenographer. A brief resume of facts essential for the disposal of the writ petition may be indicated. The petitioner was appointed as stenographer in the Zila Parishad, Darbhanga, on 27.4.1977. He was made in-charge head-clerk-cum-accountant on 1.4.1992. The question of his regular promotion to the post was considered by the 2 Zila Parishad at its meeting held on 17.8.1993. The meeting was presided over by the Collector-cum-Deputy Development Commissioner at its meeting dated 17.8.1993 (Annexure-3), whereby resolution was passed that the petitioner may be promoted to the post of head-clerk-cum-accountant on a regular basis. By the consequential order dated 19.8.1993 (Annexure-4), he was notified to have been promoted to the post that “vLFkkbZ izksUufr nh tkrh gS@“ The petitioner continued to function as such till the Zila Parishad has passed the impugned order dated 6.2.2007 (Annexure- 1), whereby it was decided that he be reverted to his substantive post as stenographer for three reasons. He belongs to the cadre of stenographers which is not the feeder category for promotion to the post of head-clerk-cum-accountant which can be filled up only from amongst the members of the cadre of clerks. The second reason for his reversion is that the roaster clearance was not considered. Thridly, the petitioner is guilty of financial irregularities. This was followed by the consequential order dated 7.3.2007 (Annexure-9), and impugned herein. While assailing the validity of the impugned order, learned counsel for the petitioner submits that none of the three reasons have any force and has made sustained efforts to justify his promotion. He submits that in order to get prompted to the post in question, the employee must have passed the accounts examination which he has achieved. He next submits that the question of roster clearance was considered by the Zila Parishad in its meeting held on 3 19.8.1993, and the matter was directed to be put up at the next meeting. He was promoted at the next meeting held on 17.8.1993. He also submits that the surcharge proceeding is pending with respect to the affairs of the Zila Parishad in which the petitioner has no involvement. He lastly submits that the petitioner was not afforded a reasonable opportunity of hearing before the impugned order was passed. Learned counsel for the respondents in their separate submissions, attempted to justify the impugned order. We have perused the materials on record and considered the submissions of learned counsel for the parties. It appears to us on a perusal of the provisions of the Government resolution dated 15.9.1993, read with resolution dated 16.3.1991, published in extra- ordinary gazette dated 21.9.1993 (Annexure-A to the counter affidavit of the State of Bihar), as well as the provisions of Bihar Panchayat Samiti and the Zila Parishad (Conditions of service) Rules 1964, that a person of the category of cadre of clerks can alone be promoted to the post in question. Learned counsel for respondent nos. 3 and 4 has rightly invited my attention to the communications dated 14.3.2002 and 4.10.2007 (Annexures V series to the additional supplementary counter affidavit of respondent no.3) that identical promotions to other employees as has been given to the present petitioner, has been disapproved by the State Government and those orders of promotion have been rescinded 4 In the present case, the petitioner belongs to the cadre of stenographers which is a separate and distinct cadre from that of clerks. It is evident that the petitioner would not have been considered for promotion to the post in question. The impugned action canceling the petitioner’s promotion and reverting him to his substantive post as stenographer is fit to be up-held. Respondent no.3 has placed on record its counter affidavit and has annexed thereto photo copies of the notings in the relevant file maintained by the Zila Parishad in the routine course of business. The note dated 3.11.1992, was recorded by the petitioner himself, where he had examined issues relating to the impugned promotion had declared one Sukhdeo Ram, arrival candidate for promotion to be unfit, has cleared the roster position, and has stated about himself as follows: “ rqyukRed fooj.kh ds lkFk yxk;s x;s çek.ki=ksa] lsok vfHkys[kksa rFkk lafpjkvksa ds voyksdu ls Li’V gksrk gS fd Jh pkS/kjh(the present petitioner) ( ojh;] ;ksX; rFkk n{k gS] vr,o bl in ij fu;fer çksUufr gsrq fu.kZ; ysrs gq, p;u lfefr dh cSBd gsrq ,d frfFk fu/kkZfjr fd;k tk ldrk gSA ” This presents and outrageous position and shocks the conscience of the court. The petitioner dealt with the matter himself in a situation where he himself was a candidate and declared the rival candidate unfit, and equally declared himself to be a worthy and fit candidate. The impugned action is fit to be up-held on this ground. I am supported by the judgment of the Supreme Court in the 5 case of A.K. Kraipak and others V. Union of India and others reported in 1969(2) SCC 262. In the result, this writ petition is dismissed. However, the official acts done by the petitioner so long he functioned as head- clerk-cum- accountant shall not be declared irregular/illegal on the ground that he was not validly appointed. He will also not be required to refund the differential amount of salary, allowances etc. , if any, found refundable. Vinay/ ( S. K. Katriar , J.)