IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.47 of 2009 ====================================================== Satish Kumar Sah, S/o late Binda Lal Sah, resident of village Adhwari, Post Tyotha, District – Madhubani, presently posted as BHW, Primary Health Centre, Biraul, District – Darbhanga. .... .... Petitioner/s Versus 1. The State of Bihar. 2. The Commissioner cum Secretary, Department of Health, Medical Education and Family Welfare, Govt. of Bihar, Patna. 3. The Director-in-chief, Health Services, Govt. of Bihar, Patna. 4. The Collector, Darbhanga. 5. The Civil Surgeon cum Chief Medical Officer, Darbhanga. 6. The Treasury Officer, Darbhanga. 7. The Medical Officer Incharge, Primary Health Centre, Biraul, Darbhanga. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Amarendra Narayan, Advocate For the Respondent/s : Mr. Ram Das Sinha, AC to SC 12. ====================================================== CORAM: HONOURABLE JUSTICE SMT. MRIDULA MISHRA ORAL ORDER (Per: HONOURABLE JUSTICE SMT. MRIDULA MISHRA) 08/ 13-10-2011 Heard counsel for the petitioner and counsel appearing for the State. Already a counter affidavit has been filed on behalf of Civil Surgeon -cum- Chief Medical Officer, Darbhanga (Respondent No. 5), but in the light of specific direction of this Court supplementary counter affidavit has been field on behalf of Respondent No. 5. Petitioner has prayed for quashing of order contained in Memo No. 311 dated 9.6.2007 issued under the signature of Patna High Court CWJC No.47 of 2009 (8) dt.13-10-2011 2 / 7 2 Medical Officer Incharge, Primary Health Centre, Biraul, Darbhanga (Respondent No. 7), whereby the petitioner has been informed that on account of audit objection a sum of Rs.71,942/- will be recovered from his salary as excess salary has been paid to him during the period April, 1988 to 2003 on account of his promotion to the post of Basic Health Worker from the post of Dresser. After issuance of this order, though petitioner is still working on the post of Basic Health Worker, his salary has been reduced and Rs.2,400/- per month was deducted by way of recovery from his salary. Petitioner was initially appointed on the post of Dresser vide order issued by the Civil Surgeon –cum- Chief Medical Officer, Darbhanga contained in Memo No. 68 dated 18.9.1982. His appointment was in the pay scale of Rs.400-540 and he was posted under Primary Health Centre, Biraul. Petitioner continued on the post and subsequently vide order contained in Memo No. 9 (c) dated 20.01.1989 issued by the Civil Surgeon – cum- Chief Medical Officer, Darbhanga he was promoted to the post of Basic Health Worker in the pay scale of Rs.535-765/-. His pay scale was enhanced with effect from 1.4.1988. Petitioner’s case is that he was promoted to the post of Basic Health Worker considering his eligibility, qualification and Patna High Court CWJC No.47 of 2009 (8) dt.13-10-2011 3 / 7 3 also because both the posts are technical post, as such there was no obstacle in promoting a Dresser to the post of Basic Health Worker. Petitioner also passed Hindi Noting and Drafting Examination. After his promotion to the post of Basic Health Worker his name was included in the seniority list of Basic Health Worker at Serial No. 112. He was allowed all benefits attached to the post of Basic Health Worker till the date an objection was raised by the audit team of the Finance Department regarding promotion given to the petitioner from the post of Dresser to the post of Basic Health Worker. Considering the objection raised by the audit team the Incharge Medical Officer of Primary Health Centre issued impugned order contained in Memo No. 311 dated 9.6.2007 informing the petitioner regarding illegal promotion given to the post of Basic Health Worker and recovery of excess amount paid as salary on account of such promotion. Petitioner’s case is that even though an objection was raised, it was essential before issuing any order regarding recovery from salary of the petitioner; at least an opportunity should have been provided to the petitioner to defend his case. Since, it was not done, the issuance of impugned order and action of the respondent in compliance of the order is completely in violation of rule of natural justice. Patna High Court CWJC No.47 of 2009 (8) dt.13-10-2011 4 / 7 4 In the first counter affidavit filed on behalf of State there is nothing to show any legal reason is there for not promoting a Dresser to the post of Basic Health Worker. There is nothing to show that the promotion was given to the petitioner against the cadre rules. Simply it has been mentioned that an objection was raised by the audit team of the Finance Department and that resulted into issuance of the impugned order as well as recovery of Rs.71,942/- from the salary of the petitioner. In the supplementary counter affidavit also there is no specific statement that the post of Dresser and Basic Health Worker belongs to two different cadres and there is legal restraint for giving promotion from one post of another. In para 6 of the supplementary counter affidavit it has been stated that the Finance Department raised objection vide Memo No. 2071F (2) dated 08.04.1987 that only Matric passed Health Worker qualified for pay scale of Rs. 535-765/- and any Dresser who is not Matric passed cannot get his salary in the pay scale of Rs.535-765/-. The reason for issuance of impugned order, is only this objection of Finance Department, in that case it is not applicable, in the case of petitioner. Petitioner’s qualification is Intermediate, as such he is not a non-matric dresser and there cannot be any objection in giving him promotion to the post, having pay scale of Rs.535-765/-. Patna High Court CWJC No.47 of 2009 (8) dt.13-10-2011 5 / 7 5 Counsel for the petitioner has specifically stated in the writ application that despite the fact that recovery has been made from his salary and his promotion is considered as improper, still he is continuing on the post of Basic Health Worker, but his salary has been reduced to the pay scale of Dresser. There is no statement in the counter affidavit justifying this act of the respondent. Today when the matter was taken up, counsel for the petitioner has brought before this Court the order contained in Memo No. 449 dated 15.2.2010 issued under the signature of Civil Surgeon –cum- Chief Medical Officer, Darbhanga, whereby in response to Finance Department’s Notification No. 1882 dated 23.03.2006 under the ACP Rules, petitioner’s claim for 1st ACP has been rejected and he has simply been allowed 2nd ACP, considering the fact that on account of his promotion to the post of Basic Health Worker he is not entitled for 1st ACP. Counsel for the petitioner submits that respondents have adopted two different scale for judging legality of his promotion, simultaneously at one point of time, they have considered the promotion given to the petitioner to the post of Basic Health Worker as improper, illegal and on account of such decision a recovery of Rs.71,942/- has been made from his salary and current salary has been reduced to the pay scale of Dresser. Patna High Court CWJC No.47 of 2009 (8) dt.13-10-2011 6 / 7 6 Despite this order cancelling his promotion he has not been reverted to the post of Dresser and he is still continuing on the post of Basic Health Worker. However, he is being paid his salary payable for the post of Dresser. On the other hand, while considering his case for ACP, he has been denied benefit of 1st ACP, on the ground that he has been promoted to the post of Basic Health Worker. No specific rule has been brought before this Court due to which promotion given to the petitioner, from the post of Dresser to the post of Basic Health Worker can be considered either improper or illegal. Only reason for not giving promotion to any Dresser to the post of Basic Health Worker, as disclosed in the supplementary counter affidavit is qualification of Matriculation. Those Dressers who do not possess the qualification of Matriculation are not supposed to be promoted in the pay scale of Rs.535-765/- that is the pay scale of Basic Health Worker. So far petitioner is concerned, he is Intermediate and that restriction is not applicable in his case. Petitioner is still being considered as a Basic Health Worker as per the order contained in Memo No. 449 dated 15.2.2010 issued by the Civil Surgeon –cum- Chief Medical Officer, Darbhanga. Since, the petitioner is continuing on the post of Basic Health Worker and he is qualified also for being Patna High Court CWJC No.47 of 2009 (8) dt.13-10-2011 7 / 7 7 promoted to the post, the impugned order issued by Respondent No. 7 contained in Memo No. 311 dated 9.6.2007 is completely illegal. Impugned order has been issued in violation of rule of natural justice, without considering this fact that whether objection raised by auditors has any application in petitioner’s case. Simply on the basis of audit objection, recovery order was issued against the petitioner and his salary paid in the promotional post has been recovered from his salary. For these two reasons, the impugned order is quashed. The Civil Surgeon –cum- Chief Medical Officer, Darbhanga as well as Medical Officer Incharge, Primary Health Centre, Biraul, Darbhanga are directed to refund Rs.71,942/- recovered from the salary of the petitioner as an excess salary paid to the petitioner. The petitioner has continued on the post of Basic Health Worker as such his current salary should be paid in the same pay scale, which is applicable to the post of Basic Health Worker. The difference of arrears of salary from 2003 till the date must also be paid to the petitioner within twelve weeks from the date of production/communication of this order. This application is allowed. DKS/ (Mridula Mishra, J.)