Jawahar Choudhary v. The State Of Bihar

For the Petitioner/s : Mr. Anil Prasad Singh For the Respondent/s : Mr. Vikash Kumar, A.C. to A.G. ====================================================== PRESENT: HONOURABLE MR. JUSTICE S.N. HUSSAIN ORDER 3 22-01-2013 Heard learned counsel for the petitioner and learned counsel for the respondents.

2. This writ petition has been filed by the petitioner for the following reliefs: I. II. To grant to the petitioner First Time Bound the date of Promotion with effect from as Sub appointment department of Excise i.e. 24.07.1981. To further order or direction for quashing the letter dated 09.12.2005 issued under memo Inspector 2 Patna High Court CWJC No.11942 of 2006 (3) dt.22-01-2013 No.4313 by the Secretary of Commissioner, Department of Excise, Bihar whereby and whereunder, the First Time Bound Promotion granted to the petitioner with effect from 25.07.1991 vide memo No.3989 dated 28.10.2004 has been cancelled. III. To further order or direction commanding the respondents not to recover the salary and allowances being paid to the petitioner. IV. Any other relief or reliefs to which the petitioner be deemed entitled.

3. It is not in dispute that the petitioner was appointed as typist-cum-clerk in the Department of Excise on 11.07.1973 and he passed the examination of Hindi Noting and Drafting on

01.02.1976, where after his services was confirmed on

30.08.1976. It is also stated that there was a departmental examination for filling up 10% quota for the post of Sub-Inspector and the petitioner cleared all the papers in the examination organized by the Central Examination Committee, Bihar, Patna. In the year 1981 he was duly promoted as Sub-Inspector of Excise on 25.07.1981 and thereafter he was not given any such promotion and he retired on 30.04.2004. It was only thereafter that the state government carefully considering the recommendation of the 4th Pay Revision granted First Time Bound Promotion to the petitioner on 28.10.2004.

4. The grievance of the petitioner is that thereafter no 3 Patna High Court CWJC No.11942 of 2006 (3) dt.22-01-2013 promotion was given to him until his superannuation on

30.04.2004. Furthermore, after the 4th Pay Revision, the state government carefully considered the said recommendation and vide order dated 28.10.2004 granted First Time Bound Promotion to the petitioner to the post of Inspector of Excise with effect from

25.07.1991 when he completed ten years as Sub-Inspector in the Department and also gave consequential financial benefit from the said promotion after his retirement. However, subsequently vide order dated 09.12.2005, the said First Time Bound Promotion granted to the petitioner was cancelled and the authorities were directed to recover all the amounts paid to the petitioner from his post retrial benefits. This is under challenge in this writ petition.

5. The claim of the petitioner is that the appointment of the petitioner on the post of Sub-Inspector cannot be termed as promotion in the strict term thereof as the promotional post from clerk was Assistant Sub-Inspector, on which post the petitioner was never promoted rather he passed the examination and was appointed directly on the post of Sub-Inspector on the basis of 10% reserved quota fixed for the employees of the department. In this connection, he relies upon Clause-2 of Memo No.3/P.A.R.- 04/8/89-920 dated 07.03.1990 issued by the finance department of the Government of Bihar, in which it was stated that only such 4 Patna High Court CWJC No.11942 of 2006 (3) dt.22-01-2013 promotion can be considered for denial of First Time Promotion which is direct cadre promotion. The petitioner’s promotion was not a direct cadre promotion rather it was a promotion through a departmental examination to a higher post. Hence, he submits that First Time Bound Promotion given to the petitioner vide order dated 28.10.2004 was legal and proper and the cancellation of the said order by the impugned order dated 09.12.2005 was not legal, proper and justified and was also without issuing any notice or information to the petitioner in a cursory manner.

6. On the other hand, learned counsel for the respondents vehemently opposes the contention of the learned counsel for the petitioner and submits that the posting of the petitioner as Sub-Inspector cannot legally be held to be a direct appointment rather it was a promotion, even though, by way of departmental examination for the employees of the departments only and hence as per the circular of the Government, the said promotion has to be considered as a promotion and on its basis no First Time Bound Promotion was available to the petitioner and order dated 28.10.2004 not being legal and proper, it was cancelled vide order dated 09.12.2005 asking the authorities to recover the amounts paid to the petitioner.

7. Considering the submissions made by the learned 5 Patna High Court CWJC No.11942 of 2006 (3) dt.22-01-2013 counsel for the parties and the materials available on record, it is quite apparent that impugned order in which time bound promotion was given to the petitioner on 28.10.2004 was cancelled but that order is clearly on the face of it a non-speaking order without considering the claim of the petitioner. It also transpires that no notice or information was given to the petitioner with respect to intention of the authorities for passing such order and the same was passed in the absence of the petitioner to whom a right had been accrued as per the earlier order of the authorities dated 28.10.2004 and hence any order taking away the said benefit granted to the petitioner should have been proceeded by show- cause notice to the petitioner calling for his comments in that regard. This having not done in the impugned order dated

09.12.2005 it cannot sustain the test of legality and is accordingly quashed with a liberty to the authorities to pass a fresh order after giving due notice to the petitioner.

8. With the aforesaid observations and directions, this writ petition is disposed of. Mkr./- (S.N. Hussain, J)