IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13426 of 2008 BHOLA PRASAD, S/O LATE CHANDRIKA PRASAD SINGH, R/O VILLAGE-SAHABAJPUR, P.S.- NARDIGANJ, IN THE DISTRICT OF NAWADAH. …………PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY-CUM-COMMISSIONER, DEPARTMENT OF HEALTH, GOVT. OF BIHAR, PATNA. 2. THE DIRECTOR-IN-CHIEF, HEALTH SERVICES, GOVT. OF BIHAR, PATNA. 3. THE DEPUTY DIRECTOR, HEALTH SERVICES, GOVT. OF BIHAR, PATNA. 4. THE REGIONAL DEPUTY DIRECTOR, HEALTH SERVICES, MAGADH DIVISION, GAYA. 5. THE CIVIL SURGEON-CUM-CHIEF MEDICAL OFFICER, NAWADAH. 6. THE ADDITIONAL CHIEF MEDICAL OFFICER, NAWADAH. 7. THE INCHARGE MEDICAL OFFICER, PRIMARY HEALTH CENTRE, HISUA, DISTRICT-NAWADAH. …………RESPONDENTS. ----------- 3 26.08.2011 Petitioner has filed this writ application challenging a memo no.2765 dated 14.11.2005 (Annexure-5) containing the orders of the Civil Surgeon-cum-Chief Medical Officer, Nawada, by which petitioner as well as 7 other persons were reverted from class- III post to class-IV post. He has further prayed for a direction to treat the petitioner as Clerk pursuant to promotion granted to him through memo no.1448 dated 13.07.1993 and has also prayed for a direction for all consequential benefits of the same. 2 The contention of the petitioner is that, by order contained in the impugned memo, 8 persons were reverted from class-III to class-IV post, in view of some order passed by this Court in LPA No.448 of 2005 and directions received from the Director-in- Chief, Health Services. However, only few months thereafter, out of the 8 persons all others except petitioner, were restored to their posts of class-III. Since other 7 persons had been restored to their services the petitioner filed representation for restoration of his service also, but the same was not considered. Hence, he has filed this writ application. Learned counsel for the petitioner submits that petitioner was promoted on class-III post, by order contained in memo no.1448 dated 13.07.1993. He continued as such for thirteen years and reverted in 2005 along with other persons, who had also been promoted during the period or even later on. But within few months they have been restored to their services. He submits that the petitioner has continued on class-III post for quite a long time and it was not open to 3 the respondents to revert him to class-IV post now. A counter affidavit has been filed in this case by the respondents. The case of the petitioner is being sought to be distinguished from the case of other 7 persons on the pleadings that the promotion of the petitioner was not by the Committee; it was not from the gradation list; reservation policy had not been adopted; vacancy had not been shown and quota had not been determined for limited promotion from class-IV to class-III. It has also been contended in the counter affidavit that the services of other persons were got verified and, after verification, the 7 persons were restored to their promotional post in view of the observations of the Division Bench in LPA NO.448 of 2005 as they were promoted prior to 1992 and they were not holding technical post of Basic Health Worker. A reply to the counter affidavit has been filed by the petitioner today. Learned counsel for the petitioner has drawn the attention of this Court to Annexure-5 series, which are orders of the Civil Surgeon-cum- 4 Chief Medical Officer in respect of the 7 persons whose services have been restored to class-III. The orders appear to have been passed in March 2006 i.e. merely about three months after the order of their reversion. Each of the order shows that in respect of each of the persons legal opinion was sought for from the Government Pleader, Nawada and in view of his legal opinion their services were restored and they were held entitled for payment of salary etc. from retrospective date. He has also drawn the attention of this Court to the opinion of the Government Pleader, Nawada dated 27.04.2006, as contained in Annexure-6, in respect of the petitioner, which shows that the Government Pleader, Nawada has opined that, if the petitioner was appointed in 1992 or thereafter he was also entitled for being promoted to the post of Clerk. Learned counsel submits that, in spite of this legal opinion in favour of the petitioner, the respondents did not pass order restoring services of the petitioner to class-III post, whereas solely on the basis of legal opinion they have restored the services of other 7 5 persons. He further submits that there is nothing in the counter affidavit to show that the validity of promotion of other 7 persons had been independently examined by the respondents and finding was in their favour. He further submits that, out of the 8 persons, two other persons, i.e. person at serial no. 6 and serial no.8 of Annexure-1, were also holding technical post, but their promotion has been restored by the respondents solely on the basis of legal opinion of Government Pleader, Nawada. He further submits that the person at serial no.8 had also been promoted in 1992 and person at serial no.6 was promoted as late as in the year 2003. Still no fault was found in their promotion and relying upon the legal opinion of the Government Pleader, Nawada, they have also been restored to class-III post. Learned counsel appearing for the respondents does not dispute this factual aspect of the matter. He has simply relied upon the counter affidavit and has referred to paragraph 6 and 10 of the same, the contents of which have been noticed in the 6 earlier part of this order. After going through the relevant annexures, this Court finds the submission of learned counsel for the petitioner as correct. Annexure-5 series shows that other 7 persons were restored to their promoted post only on the basis of opinion of the Government Pleader, Nawada. This Court also finds that the opinion of the Government Pleader, Nawada in respect of the petitioner was in his favour, as contained in Annexure- 6. This Court also finds that two other persons whose promotion have been restored were also holding technical post, first at serial no.6 being Male Family Welfare Worker and second at serial no.8 being Basic Health Worker. Petitioner was also Basic Health Worker. This is also not denied that the person at serial no.8 was promoted in 1992, whereas the person at serial no.6 was promoted as late as in the year 2003. In the circumstances, this Court does not find from the records any distinguishing feature in the case of the petitioner vis-à-vis the case of the other 7 persons, particularly persons at serial nos. 7 6 and 8. This Court finds that pleadings made in the counter affidavit in paragraph 6 and 10, as relied upon by learned counsel for the respondents, are not supported by any material or document on record, rather the orders of the Civil Surgeon, restoring the promotions of the 7 persons including the persons at serial nos. 6 and 8, as contained in Annexure-5 series, show that for restoring their promotions there was no other consideration before the respondent Civil Surgeon than the legal opinion of the Government Pleader, Nawada. Therefore the legal opinion of the Government Pleader, Nawada also being in favour of the petitioner, the respondents had no occasion to deny the restoration of promotion of the petitioner with retrospective effect, as done in the case of other 7 persons. In the circumstances, this Court finds that the petitioner is entitled for the prayer made by him in the writ application. The writ application is accordingly allowed. The respondents are directed to pass orders restoring the services of the petitioner with retrospective effect with consequential 8 benefits in the same terms as done in the case of persons at serial no.6, namely, Balmukund Sharma and the person at serial no.8, namely, Shyamdeo Singh. The order must be passed with orders of consequential benefits positively within two months from the date of receipt/production of a copy of this order. Arvind/ ( J.N. Singh, J.)