IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3779 of 2006 DIWAKAR PRASAD MANDAL SON OF SRI MANESHWAR PRASAD MANDAL RESIDENT OF VILLAGE FAJELIGANJ, P.O. TGARAPUR, P[.S. TARAPUR, DISTRICT MUNGER. Versus 1. THE STATE OF BIHAR THROUGH THE COMMISSIONER CUM SECRETARY, PUBLIC HEALTH ENGINEERING DEPARTMENT, NEW SECRETARIAT, PATNA. 2. THE CHIEF ENGINEER, PUBLIC HEALTH ENGINEERING DEPARTMENT, BHAGALPUR ZONE, BHAGALPUR. 3. THE SUPERINTENDING ENGINEER, PUBLIC HEALTH ENGINEERING DEPARTMENT, MUNGER CIRCLE, MUNGER. 4. THE EXECUTIVE ENGINEER, PUBLIC HEALTH ENGINEERING DEPARTMENT, MUNGER DIVISION, MUNGER. 5. THE SUB-DIVISIONAL OFFICER, PULIC HEALTH ENGINEERING DEPARMENT, SUB-DIVISIONAL OFFICE, HAVELI KHARAGPUR, MUNGER. ----------- For the petitioner :- M/S. Akashdeep & Shyameshwar Kumar Singh For the State :- Mr. Prabhakar Tekriwal, S.C. I. ------- 5 09/08/2010 The Court must fairly record that at a point of time when the petitioner filed C.W.J.C. No. 10827 of 1995 seeking a direction upon the respondents for granting him promotion, High Court in its order dated 3.2.1997 contained in annexure- 4, based on the submissions made by the learned Counsel for the State, recorded that since the petitioner did not sit for the limited examination and his name did not figure in the - 2 - register, petitioner could not be granted any relief. That order was challenged before a Division Bench in L.P.A. No. 282 of 1997 which the petitioner withdrew after some argument. But the issue of his promotion did not rest at that. Vide order dated 23.11.1998 which is annexure-6, petitioner was granted promotion to the post of Correspondence Clerk. Annexure-6 categorically states that this promotion has been granted on the basis of educational qualification and the seniority of the petitioner though the order also records that the promotion was provisional. This promotion order came to be withdrawn in the year 2002 vide order dated 26.6.2002. Petitioner challenged this order of withdrawal by filing C.W.J.C. No. 8491 of 2002. High Court after hearing the parties disposed of the said writ application vide order dated 28.10.2002 contained in annexure-7 with a direction to give an opportunity of hearing to the petitioner and decide the issue. Order passed by the Superintending Engineer, pursuant to annexure-7, is under challenge in the present writ application. This order dated 22.02.2006 is annexure-10 to the writ application. After passing of this order, yet another order posting the petitioner - 3 - on Class IV post has also been issued on 23.2.2006 which has been labeled as annexure-10/1 to this writ application and petitioner wants quashing of this order as well. Submission of the learned counsel for the petitioner is that irrespective of what the high Court had observed in the earlier writ application, the fact stood that taking into consideration the educational qualification and seniority of the petitioner in Class IV post, he along with others came to be promoted on the post of Correspondence Clerk. He joined that post and continued to work. There was no occasion for withdrawing that order of promotion, more so, after it is decided on the ground urged in the impugned order. Paragraph 2 of annexure-10 categorically lays down that the reasons for cancellation of the petitioner’s promotion is violation of two Circulars issued by the Department of Personnel and Administrative Reforms, Government of Bihar, Patna which is Circular No. 2215 dated 11.2.1985 and Circular No. 5939 dated 18.6.1993. Both the Circulars have been produced before this Court and the learned counsel has pointed out that there is a clear indication therein that for such promotion or for a - 4 - promotion from Class IV to Class III post, specially of Correspondence Clerk, the applicants are not required to sit in any examination. Local authorities are supposed to draw a list of all eligible candidates, against vacancies on the basis of marks obtained by them in School and College as well as keeping their seniority in mind. The bogey of the petitioner not having passed the examination raised by the respondents is not supported by either of the Circulars which have been issued by the State. Annexure-6 by virtue of which petitioner was granted promotion states that keeping in mind the marks obtained by the petitioner and his seniority, such a promotion is given. If that was the primary and sole consideration, the stand taken by the State that the petitioner did not opt or sit for departmental examination is misplaced because there is no requirement of that kind pointed out from the two circulars. The order of reversion, therefore, has to be seen in light of the grounds which have been stated in the said impugned order. Primafacie, the petitioner seems to have made out a case that there is no breach of policy or of the two circulars of 1985 or 1993 in grant of promotion. - 5 - Learned counsel for the State again harps on the order passed by this Court in Annexure-4 and the same fact has been reiterated in the counter affidavit as well. Earlier observation of the Court in Annexure-4 has no meaning in the light of the fact that despite such an observation, it is the respondents who went ahead and granted promotion to the petitioner on which post he continued to work for quite a while and it is only now in the year 2006 that it is sought to be taken away. Learned counsel for the State, as a last bid, tried to rely on the Circular of 1993 which is annexure-1 to the writ application to support his stand but a bare perusal of the said Circular also does not support the stand of the respondents that any kind of written examination was required to be held in which Class IV employees were obliged to sit. In fact, the Circular categorically states that no kind of written or oral examination was required to be held in which the candidate was required to participate. Merit list was to be prepared on the basis of marks obtained in the school and the college examination coupled with seniority and nothing more. If there are other reasons or the infirmity in grant of - 6 - promotion, then those aspects have not been highlighted or pointed out. The Court is bound to go by the reasons indicated in annexure-10 and the reasons given therein do not support the respondents in withdrawing the order of promotion granted to the petitioner. Annexre-10 stands quashed. So is the corresponding notification contained in annexure-10/1 by which the petitioner has been reverted and posted on Class IV post afresh. This writ application is accordingly allowed. AMIN (Ajay Kumar Tripathi, J.)