IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10685 of 2002 JAI GOBIND & ORS W i t h CWJC No.1462 of 2003 RAM PRASAD SHARMA & ORS Versus THE STATE OF BIHAR & ORS For the Petitioners : Ram Hriday Prasad, Adv. For the State : Mrs. Nilu Agrawal, G.A. 10 Mrs. Nirmala Kumari, A.C.to G.A.10. ----------- 3/ 28/2/2009 Heard learned counsel for the petitioners and learned counsel for the State. Both these writ applications question the order of reversion from the post of Head Clerk after grant of promotion from the post of clerk on the basis of need based posts after 1.1.1996, the date that the selection grade posts were abolished. Petitioners 1 to 12 and 14 in C.W.J.C. No.10685/02 and the petitioners in C.W.J.C. No.1462/03 are stated to have been alive on the date that the impugned order of reversion dated 5.8.2002 came to be passed while petitioners 13 and 15 are the widows of the employees deceased prior to the issuance of the order of reversion. The petitioners were promoted as Head Clerks by an order dated 5.8.1999. For culling out facts, this Court shall refer to annexure-1 in C.W.J.C. No.10685/02. The order of promotion dated 5.8.1999 in 2 clear terms refers to one circular and one letter of the Finance Department dated 8.2.1999 and 16.4.1999 respectively. It then goes on to recite identification of need based posts of Head Clerks in light of the aforesaid two communications of the Finance Department for promotion of clerks holding that post on 1.1.1996 for promotion to the post of Head Clerk. Based on these materials, there was application of mind by the Establishment Committee. Thereafter the orders of promotion followed. Clause-2 of the order of promotion states that if at a later stage, the promotions were found to be contrary to Rules, the persons shall be reverted to their original posts. Learned counsel for the petitioners urged that there had been no misrepresentation, concealment or other method adopted by them to obtain an unfair or undue advantage of promotion and in absence of any such reasons, the question of reversion did not arise. In any event, there could be no recovery from the petitioners for the same very reasons, even if reversion be upheld. Learned counsel for the State urged that the order granting promotion had erred in interpreting circular dated 8.2.1999 of the Finance Department. It is, however, fairly acknowledged by the learned counsel 3 for the State that the counter affidavit does not deal with the letter of the Finance Department dated 16.4.1999, issued subsequent to the earlier circular dated 8.2.1999. What is the content of letter dated 16.4.1999 and to what extent it may affect the circular dated 8.2.1999 cannot be answered at this stage. Stress is, however, laid on Clause-2 of the order of promotion with regard to an order of reversion, which may be found contrary to Rules. Reliance has been placed on a Full Bench decision of this Court in C.W.J.C. No.12181/03 and analogous cases decided on 5.7.2007, reported in 2007(3) P.L.J.R. 398 (Ram Binod Singh & Ors. vs. The Bihar State Electricity Board & Ors.). The Full Bench, after consideration of two Division Bench orders of this Court, reported in 2001(2) P.L.J.R. 58 (Bihar State Electricity Board & Others vs. Madan Mohan Prasad & Ors.) and 2004(3) P.L.J.R. 3 (Bihar State Electricity Board & Ors. vs. Man Bahadur & Ors.), noticed that in the former case the Division Bench observed (relevant for the purposes of the present controversy) that if the order granting the benefit itself stipulates that the same is liable to recovery, if found erroneous at a latter stage, of the monetary benefit so granted. In the latter case of Man 4 Bahadur (supra), the Division Bench held that excess payment due to mistake in pay fixation, grant of increment or the lack leading to wrong calculation of the salary of the employee can be recovered even if there was no fraud or misrepresentation on part of the concerned employee. After noticing the submission, the Full Bench at paragraph-28 arrived at the conclusion that the grounds mentioned in the case of Madan (supra) were only illustrative and not exhaustive. Holding that there was no conflict between the two Division Bench Judgements the Full Bench held that the harsh aspect of recovery can be softened by fixation of instalments for the same. Once finality is arrived at on the issue of grant of wrong promotion, contrary to Rules, the Full Bench decision shall have full play. If the process of decision making by the authorities is itself vitiated and cannot be upheld in law, the order of reversion is not based on proper application of mind to cogent materials, the basic edifice for applying the Full Bench decision shall be missing. Once a benefit of promotion is granted and it is sought to be withdrawn, the latter order necessarily visits the government servant concerned with adverse civil consequences. The law stands well settled that no order adverse to a person having civil consequences can 5 be passed without an opportunity of hearing. Even in cases with regard to allegations of fake and fabricated appointment letters, the Courts have held that an enquiry was first required to ascertain the factum of forgery and fabrication only whereafter, the delinquent may have no case. In the facts and circumstances of the present case, the order of promotion dated 5.8.1999 is speaking in nature. It reflects full application of mind, of the nature and the materials to which the mind was applied, and consequent consideration of these materials and subsequent application of mind by the establishment committee, as distinct from an individual. Those holding the post of clerk on 1.1.1996 from before or from that date, were being considered. This was being done in light of the Finance Department Circular dated 8.2.1999 and its letter dated 16.4.1999 that this was being done after identification of need based posts of Head Clerk in light of the aforesaid communications of the Finance Department. The order of promotion further states that the incumbent was liable to be reverted to their previous post, if found contrary to Rules. It does not state that they will also be liable to recovery, if found contrary to Rules. It has already been noticed above that the 6 counter affidavit of the respondents is silent with regard to the Finance Department letter issued subsequently on 16.4.1999. What is contained in that letter is left in the void and becomes speculative. No order of the Government can be passed in the void and be speculative and can be supported on that basis before a Court of Law. As distinct from the materials revealed in the order of promotion of the application of mind upon the same by the respondents, the order of reversion dated 5.8.2002 is cryptic and gives no reasons of why and how there was error in the order of promotion. As discussed above, the counter affidavit is hardly of any help in the matter if the order can be explained in a counter affidavit in terms beyond that stated in the order itself. In light of the aforesaid discussion, this Court finds that the present cannot be termed simpliciter as cases of wrongful promotion to uphold orders of reversion and consequent recovery, if the latter be permissible in absence of any such clause in the order of promotion. This Court is, therefore, satisfied that there was a need for the authorities to issue notice to the concerned employees who were promoted and were sought to be deprived of the promotion along with reasons as to why the reasons mentioned in the order of 7 their promotion were contrary to Rules and due opportunity to them to meet the same. The present are not cases where the order of promotion is non-speaking. The orders of reversion dated 5.8.2002 and the incorporation therein directing recovery is, therefore, not sustainable in its present form. The orders of reversion dated 5.8.2002 are accordingly set aside. The respondents shall be at liberty to issue show cause notices to the persons granted such promotion by order dated 5.8.1999 requiring them to show cause within a specified period and after considering the causes shown by them the respondents may pass fresh appropriate order in accordance with law within a maximum period of 12 weeks from the date of such causes shown by the individuals concerned, within the time to be fixed by the respondents in the show cause notice. The applications are allowed. KC ( Navin Sinha, J.)