Allowed

Md.Ayub Khan v. the State of Bihar and Ors.

Patna HC18 Feb 2009CWJC/3854/2008

Case brief

AI extract

What is this about?

High Court quashed orders of reversion of government employees from Class III to Class IV posts after 18-19 years. Court held long delay precludes reopening and mandatory nature of specific government circulars, confirmed petitioners in promotional posts.

What did the court decide?

Impugned orders of reversion quashed and petitioners confirmed in their Class III promotional posts with all consequences.

Md.Ayub Khan Vs the State of Bihar and Ors. — Pension and Retirement Benefits | Patna HC (2009)

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 IN THE HIGH COURT OF JUDICATURE AT PATNA

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 CWJC No.3727 of 2008

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BIRENDRA KUMAR SINGH, son of Rama Prasad Singh, resident
of Village Besardih, PS Chapra Muffasil, District Chapra
(Saran) ……………………………………………………………….. Petitioner

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 Versus

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1. THE STATE OF BIHAR through the Commissioner- cumSecretary, water Resources Department, Government of Bihar, Sinchai Bhawan, Patna

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2. The Director Land Acquisition and Rehabilitation, Water Resources Department, Government of Bihar, Patna

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3. The Rehabilitation Officer, Medium Irerigation Project,

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Bhagalpur ………………………………………….. Respondents

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 With

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CWJC No.10684 of 20

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 VIJAY KUMAR, son of Late Aadan Ram, resident of Village
 Chamhera, PO Oriawan Via Ekangarsarai, PS Ekangarsarai
District Nalanda, at present posted as Lower Division
Clerk in the office of Special Land Acquisition Officer,
Koshi Project, Saharsa ………………………. Petitioner

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Versus

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1. THE STATE OF BIHAR

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2. The Secretary water Resources Department, Government of Bihar, Patna

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3. The Director Land Acquisition and Rehabilitation, Water Resources Department, Government of Bihar, Patna

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4. The Joint Secretary, Water Resources Department, Government of Bihar, Patna

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5. The Special Land Acquisition Officer, Koshi Project, Water Resources Department, Saharsa

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………………………………………….. Respondents

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With

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CWJC No.15159 of 2007

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ASHOK KUMAR SHAHI, son of late Sheojee Sahai, resident of
Village Siari Mathia, PO Mathihani Madho, PS Siwan,
District Siwan, at present posted as Junior Accoounts
Cl;erk in the office of Special Land Acquisition Officer,
Patna Flood Control Project, Water Resources Department,
Anishabad, Patna-800002…………………………. Petitioner

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Versus

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1. THE STATE OF BIHAR

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2. The Secretary water Resources Department, Government of Bihar, Patna

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3. The Director Land Acquisition and Rehabilitation, Water Resources Department, Government of Bihar, Patna

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4. The Joint Secretary, Water Resources Department, Government of Bihar, Patna

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5. The Special Land Acquisition Officer, Patna Flood Control Project, Water Resources Department, Anisabad, Patna-800002

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 ………………………………………….. Respondents

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With

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CWJC No.410 of 2008

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RAMADHAR SINGH, son of Sri Chandrika Singh, resident of
Village Belma, PO Maksudpur, PS Khijar Sarai District Gaya
 ……………..Petitioner

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Versus

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1. THE STATE OF BIHAR through the Principal Secretary, Department of Water Resources Department, Government of Bihar, Patna

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2. The Director Land Acquisition and Rehabilitation, Govt. of Bihar, Patna

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3. Special Land Acquisition Officer, Sone Yojna Aurangabad ………………………………………….. Respondents

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With

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CWJC No.3728 of 2008

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SURENDRA PRASAD SINGH, son of Gambhira Singh, resident of
Village Pahari Chak, PS Sonpur, District Saran

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 ……………… Petitioner

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Versus

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1. THE STATE OF BIHAR through the Commissioner- cumSecretary, water Resources Department, Government of Bihar, Sinchai Bhawan, Patna

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2. The Land Acquisition and Rehabilitation,

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Water Resources Department, Government of Bihar, Patna

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3. The Rehabilitation Officer, Medium Irrigation Project, Bhagalpur, District Bhagalpur………. Respondents

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With

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CWJC No.3755 of 2008

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MD.AINUL HAQUE, sonof Late Md. Sahir Khan, resident of
Village Milki, Police Station Piro, Distrtict Bhojpur
………….. Petitioner

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Versus

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1. THE STATE OF BIHAR through the Commissioner- cumSecretary, water Resources Department, Government of Bihar, Sinchai Bhawan, Patna

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2. The Director Land Acquisition and Rehabilitation, Water Resources Department, Government of Bihar, Patna

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3.The Rehabilitation Officer, Medium Irrigation Project, Bhagalpur ………………………………………….. Respondents

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With

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CWJC No.3854 of 2008

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MD.AYUB KHAN, son of Late Yar Mohammad Khan, resident of
Village Aunsi, Police Station Bisti, District Madhubani

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 ……………Petitioner

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Versus

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1. THE STATE OF BIHAR through the Commissioner- cumSecretary, water Resources Department, Government of Bihar, Sinchai Bhawan, Patna

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2. The Director Land Acquisition and Rehabilitation, Water Resources Department, Government of Bihar, Patna

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3. The Rehabilitation Officer, Medium Irrigation Project, Bhagalpur ………………………………………….. Respondents

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With

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CWJC No.10201 of 2008

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MANOKAMNA BHAKTA, son of Late Ram Chandra Bhakta,
Resident of Mohalla Dahiawan (Near Deo Kumar singh Gate),
Professor Colony, PO Sahebganj, District Saran

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 ….. Petitioner

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Versus

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1. THE STATE OF BIHAR

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2. The Principal Secretary, Water Resources Department, Government of Bihar, Patna

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3. The Director Land Acquisition and Rehabilitation, Water Resources Department, Government of Bihar, Patna

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4. The Joint Secretary, Water Resources Department, Government of Bihar, Patna

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5. The Special Land Acquisition Officer, Medium Irrigation Project, Bhagalpur ………………………………………….. Respondents

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With

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CWJC No.17982 of 2008

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 MAHABIR RAM, son of Late Gulab Ram, resident of Village
 Paterhi, PS Maharajganj, District Siwan

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………………………………. Petitioner

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Versus 1. THE STATE OF BIHAR through the Commissioner- cumSecretary, water Resources Department, Government of Bihar, Sinchai Bhawan, Patna

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4.The Director Land Acquisition and Rehabilitation,
Water Resources Department, Government of Bihar, Patna
5.The Rehabilitation Officer, Medium Irrigation Project,
Bhagalpur ………………………………………….. Respondents
 -----------
For the Petitioners: Mr. Shyama Prasad Mukherji, Sr.
 Advocate, & M/s Rabindra Nath Dubey,
 Shanti Pratap, Akashdeep, Sanjay
 Singh, Shyameshear Kumar Singh,
 Advocates
For the State : Mr Braj Kishore Prasad Sinha, GP 3
 Mr. A.A.G. 3,
 Mr. Piyush Lal, AC to AAG 3
 Mr. Sanjeev Kumar, AC to AAG 4
----------

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18.02.2009 Heard leaned Counsels for the petitioners and the learned Counsels for the State in this batch of writ applications.

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In all these cases the respondent is the State of Bihar in the Department of Water Resources. The issue common to all the writ applications are the orders of appointment by promotion from Grade IV to Grade III under certain government circulars and the subsequent reversion. These writ applications have,

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therefore, been heard together and are being disposed by a common order.

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This Court shall refer to the facts of CWJC No. 3727 of 2008 and also the stand of the respondents from the counter affidavit in CWJC No. 15159 of 2007 as consideration thereof shall deal with all aspects of the matter in controversy.

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The petitioner was appointed as a Chainman on 13.2.1980. On 2.4.1987 proposal was routed for promotion from Grade IV to Grade III against 25% quota meant for such promotion. The petitioner is one of the persons whose case was forwarded on 2.5.1987 for appearing at the interview and examination for purpose of such promotion, by Annexure 8. On 2.12.1988 the cases of persons like the petitioner was taken up for consideration when the Establishment Committee which was considering their cases found certain deficiencies in their papers and the proceedings were deferred by Annexure 1. On 20.12.1988 by Annexure 2 after necessary documents were made available and their qualifications were examined the petitioner and others were directed to be promoted to Class III posts against these 25 % vacancy.

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The petitioner continued to serve on Class III post of Junior Accounts Clerk on promotion from the post of Chainman in this manner for nearly 20 years when on 9.8.2006 a show cause was issued contained in Annexure 3. The show cause notice states that there was no provision for promotion of a Chainman on the post of Accounts Clerk. That there were no rules to this effect whatsoever. This was followed by another

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show cause in similar terms on 15.2.2007, that the promotion from Chainman to Accounts Clerk was not as per rules, that it had been issued from the Confidential Section when there was no confidentiality in the matter that the rules for reservation were not followed.

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The petitioner submitted his reply dated 9.3.2007 at Annexure 5. He specifically referred to an order of this Court in CWJC No. 13578 of 2003 (Madan Thakur Vrs State of Bihar & others), a person promoted from Class IV to Class III along with the petitioner in like manner who was sought to be reverted,

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which was set aside by this Court. The petitioner also specifically mentioned that there was a provision in a regulation of 25.7.1979 (wrongly mentioned as 1999 in the typed copy) for such promotion against25% quota fixed for the same.. On this followed the impugned order dated 12.4.2007 at Annexure 6.

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The impugned order states that the matter was “considered” and upon “consideration” the promotion given to the petitioner from the post of Chainman to Junior Accounts Clerk was contrary to rules as it meant a change of cadre.

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Learned Counsel for the petitioner has relied upon the judgement of this Court in the case of Madan Thakur (Supra) at Annexure 9 reported in 2005 (2) PLJR 11. Learned Counsels have further relied upon another Bench decision of this Court in CWJC no. 3706 of 1997 affirmed in LPA No. 330 of 1998. Their contention is that their promotions were in accordance with law under the circular of 25.7.1979. That there was no justification to revert them after such long years.

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Counsel for the State referred to a government circular dated 11.2.1985 at Annexure B to CWJC No. 15159 of 2007 to contend that such promotion could be made only after a limited competitive examination with regard to these 25 % vacancy to be filled up by way of promotion from Class IV to Class III. That the petitioner did not appear at any limited competitive examination. He also sought to place reliance on an order of this Court in CWJC No. 8467 of 2004 which came to be affirmed in LPA No. 187 of 2006.

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The hallmark of governance is uniformity and consistency. If the Government, acting through its officers issues fresh circulars one after the other on the same issue, when the latter circular does not take into consideration the former circular, if based on the former circular the petitioners have obtained a benefit, will this Court be justified in giving an advantage to the respondent State on the basis of any subsequent circulars not dealing or considering its own earlier circular, to deprive the petitioners of this benefit specially after long passage of time and more than one judgement of this Court on the issue ?.

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It has already been noticed in the discussion that the petitioners in the cause shown specifically referred to the circular of 25.7.1979 providing for 25% vacancies for promotion from Class IV to Class III. Even the circular of 11.2.1985 sought tobe pressed in by the State visualizes such promotion. The circular dated 11.2.1985 does not deal with the circular dated 25.7.1979. The Court is left with the only conclusion that

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circular dated 25.7.1979 holds the field and has not been withdrawn.

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In the impugned order dated 12.4.2007 the recital is “consideration” of the cause shown. What is the “consideration” finds no reference in the order. This assumes vital significance in view of the strong reliance placed by the petitioner on the circular dated 25.7.1979 based on which the judgement of this Court came to be delivered in CWJC No. 13578 of 2003. The impugned order not only fails to discuss the circular of 25.7.1979 and its inapplicability but also does not deal with the

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judgement of this Court in CWJC No. 13578 of 2003. What consideration was being done is difficult to understand.

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An administrative order is required to be speaking, fair and reasoned. A necessary concomittants of the same shall be a proper consideration, a brief discussion of the consideration and the reasons for rejection. All these are vitally lacking in the impugned order dated 12.4.2007. The language of the order is quite simply as power flows from the barrel of the gun, it flows from the pen of the respondents.

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Even in their counter affidavit filed in the present proceeding, the respondents have not dealt with the circular of 25.7.1979 and the order of this Court in CWJC No. 13578 of 2003 which related to the Department of Water Resources itself and concerned the very reversion of the persons from Class III post to that of Chainman after long years contrary to the circular dated 25.7.1979 providing for 25% such limited promotion in such matters. The reversion has taken place after 18 – 19 years.

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A Bench of this Court in CWJC No. 3706 of 1997 (Suresh Kumar Rajak Vrs State of Bihar & others) was considering a challenge to similar orders of reversion after 16 – 17 years in the Department of Water Resources when it also noticed that there was a provision of filling up 25% vacancies from Class IV in Class III. The Court observed in the relevant extract of Para 13 as follows:

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“This apart the respondents have also fixed certain quota (25%) (wrongly typed as 253) to fill up Class III posts amongst eligible Class IV employees. Thus there is nothing on record to suggest that a Class IV cannot be appointed in Class III post in regular establishment even on qualification and selection recommendation by the Selection Committee.”

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Additionally the Bench also relied upon a judgement of this Court in the case of Someshwar Prasad Verma Vrs The State of Bihar, 1991 (1) PLJR 718 to hold that the respondents cannot be permitted to reopen such promotion after long delay of 10 – 12 years. Buttressing the reasoning by a Full Bench decision reported in 1997(1) PLJR 519 of this Court, the Bench declined to permit the respondents to reopen the matters after long delay of 16 – 17 years.

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The very present Department of Water Resources then took the matter in LPA No. 330 of 1998 which was dismissed on 14.10.1998.

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The Judgement in CWJC no. 8467 of 2004 (Lalit Mohan Singh Versus State of Bihar) relied upon by the respondents related to a case of change of cadre of Class III posts itself.

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Moreover, the contention of the State in that case was that there was no proof for 25% appointment from Class IV to Class III but that it was a concept subsequently introduced to justify wrong act. That there was a circular of 25.7.1979 has already been noticed in more than one judgement of this Court, discussed above. This was a fallacious submission on behalf of the respondents is further apparent from their own document presently from circular dated 11.2.1985 providing for such promotion. The contradiction in the stand of the State is glaring.

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The last contention of the respondents is that no competitive examination took place even for purpose of such promotion, even if there was a provision for 25% vacancies to be filled up from Class IV to Class III. To this Court, that is a speculation, on the ground that the State has chosen not to place copy of the circular dated 25.7.1979 on record and has also refused to deal with despite the cause shown by the petitioner.

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Be that as it may, once the respondents acknowledged

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that there was a provision for 25% quota for promotion from Class III the source of the power is there. If there was a procedure prescribed for it which was not strictly followed inasmuch as the Selection Committee did examine qualification, and it is no body’s case that they were not qualified to hold the post, absence of the limited competitive examination may at best be an irregularity to be considered in the backdrop of passage of time of 18 – 20 years. Even in the case of Secretary of State of Karnataka Vrs Uma Devi & ors., reported in 2006 (2) PLJR 363

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(SC) relied upon by the respondents, that mere passage of time shall bring no succour to the petitioners who were granted promotion contrary to law, the Supreme Court at Para 44 held as follows:

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“44. One aspects needs to be clarified. There may be cases where irregular appointments (not illegal appoints) as explained in S.V.Narayanappa (Supra), R.N.Nanjundappa (Supra) and B.N.Nagrajan (Supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgement. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not subjudice, need not be reopened based on this judgement, but there should be no further bypassing of the constitutional requirement and

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regularizing or making permanent, those not duly appointed as per the constitutional scheme.”

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This Court based on the aforesaid discussion finds it difficult to sustain the orders of reversion of the petitioners from Class III to Class IV posts as being devoid of any source of legality for the same. If the respondents in the same Department with regard to a person similarly situated refused to deal with the cause shown more particularly when it deals with the judicial orders of this Court as also their own circulars there is little that this Court can do but to pronounce the illegality of the

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same. This Court does so. The impugned orders of reversion of the different dates in the separate writ applications are not sustainable in law and are accordingly quashed. The petitioners

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stand confirmed on their promotional posts of Class III.

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The writ application stands allowed with all its consequences. Snkumar/- (Navin Sinha,J.)

Md.Ayub Khan v. the State of Bihar and Ors.

Case brief

What is this about?

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Md.Ayub Khan v. the State of Bihar and Ors.

Case brief

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What did the court decide?

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