Dismissed

Ganesh Kumar v. the State of Bihar and Ors.

Patna HC25 Jul 2012L.P.A/95/2011

Case brief

AI extract

What is this about?

The Letters Patent Appeal against a single judge order dismissing the writ petition was dismissed in limine. The court held that reinstating the appellant would revive an illegal order as he was not screened via the mandated qualifying examination under the relevant Government Circular. However, the court allowed salary equal to Class-III scales and directed refund of any junior grade salary diffe

What did the court decide?

No recovery of salary difference from appellant; any amount recovered by respondents shall be refunded with interest at 6% per annum.

Ganesh Kumar Vs the State of Bihar and Ors. — Pension and Retirement Benefits | Patna HC (2012)

¶1

IN THE HIGH COURT OF JUDICATURE AT PATNA

¶2

Letters Patent Appeal No.95 of 2011

¶3

¶4

Civil Writ Jurisdiction Case No. 6849 of 2003

¶5

====================================================== Ganesh Kumar son of late Muni Sao, resident of village+P.O.+P.S.-Kurtha, District-Jehanabad.

¶6

.... .... Petitioner-Appellant Versus 1. The State of Bihar.

¶7

The Secretary and Commissioner, Health, Medical Education and Family Welfare Department, Government of Bihar, Patna.

¶8

The Director-in-Chief, Health Services, Bihar, Patna. 4. The Collector-cum-District Magistrate, Jehanabad. 5. The Civil Surgeon-cum-Chief Medical Officer, Jehanabad.

¶9

The Incharge Medical Officer, Additional Primary Health Centre, Pondil, Kurtha, Jehanabad.

¶10

.... .... Respondents-Respondents

¶11

====================================================== Appearance : For the Appellant : Mr. Bindhyachal Singh, Advocate Mr. Umesh Kumar, Advocate For the Respondents : Mr. P.N. Sahi, AAG-14 Mr. Dhirendra Kumar, A.C. to AAG-14

¶12

======================================================

¶13

CORAM: HONOURABLE THE CHIEF JUSTICE and

¶14

HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE)

¶15

25-07-2012 Feeling aggrieved by the judgment and order dated 19^th August 2010 passed by the learned single Judge in C.W.J.C.

¶16

Patna High Court LPA No.95 of 2011 (8) dt.25-07-2012

¶17

2 / 4

¶18

No. 6849 of 2003, the writ petitioner has preferred this Appeal under Clause 10 of the Letters Patent.

¶19

The appellant, a health servant in Class IV service under the Civil Surgeon-cum-Chief Medical Officer, Jehanabad, came to be promoted as a Clerk in Class-III service under the order dated 15^th June 1995 made by the Civil Surgeon-cum-Chief Medical Officer, Jehanabad. The said promotion was made purportedly under the Government Circular dated 11^th February 1985. The said order of promotion was later cancelled on 21^st June 2003. Challenge to the said order under Article 226 of the Constitution has failed before the learned single Judge. Therefore, this Appeal.

¶20

Learned advocate Mr. Bindhyachal Singh has appeared for the appellant. He has submitted that the promotion was made after calling the names of all eligible Class-IV employees and on recommendation of the concerned Medical Officer. The appellant having served for nearly eight years as a Clerk, he should not have been demoted/reverted to Class-IV service. Mr. Singh has also submitted that the order of reversion has not been made on germane ground but on extraneous grounds. He has submitted that the appellant was not promoted in supersession of a person senior to him. Thus, the appellant’s promotion as a Clerk in Class-III service was neither illegal nor irregular nor was it made on misrepresentation made by the appellant.

¶21

The relevant Rules for appointment to Class-III service has not been brought before us. The above referred Circular dated 11^th February 1985 provides that 25% of the posts of Routine Clerk, Correspondence Clerk and Typist be filled in

¶22

Patna High Court LPA No.95 of 2011 (8) dt.25-07-2012

¶23

3 / 4

¶24

by appointment of Class-IV servants who do possess the required qualification for appointment to Class-III service. The said Circular further provides that such Class-IV servants be appointed on the basis of the result of the limited qualifying examination. Admittedly, the appellant was appointed as a Clerk without giving him the limited qualifying examination envisaged by the aforesaid Circular. Thus, the appellant has not been put through the only screening test provided for appointment to Class-III service from amongst the Class-IV employees.

¶25

We do appreciate that the appellant had served as a Clerk for nearly eight years. May be some Class-III employees who were reverted to the parent cadre in Class-IV service have succeeded before this Court for violation of Article 311(2) of the Constitution. We are, however, of the opinion that it is not a case of disciplinary proceeding or of punishment. Article 311 of the Constitution is, therefore, not attracted. In spite of the irregularity in appointment of the appellant; if we allow him to be reinstated in Class-III service, we would be reviving an irregular/illegal order. Unless, the Class-IV employees were screened by giving them limited qualifying examination, they could not have been appointed to Class-III service.

¶26

The High Court, exercising power of judicial review under Article 226 of the Constitution, would not allow revival or continuation of an illegal/irregular order.

¶27

For the aforesaid reasons, the Appeal is dismissed in limine.

¶28

We are of the opinion that so long as the appellant served as a Clerk in Class-III service he was entitled to salary of that of a Clerk on the principle of quid pro quo . The impugned

¶29

Patna High Court LPA No.95 of 2011 (8) dt.25-07-2012

¶30

4 / 4

¶31

order of demotion/reversion, therefore, shall not entail recovery of the amount of difference in salary as directed in the impugned order. No recovery of the amount of difference in salary will be made from the appellant. In case, pursuant to the impugned order dated 15^th June 2003, any recovery has been effected from the appellant, the said amount will be refunded to the appellant as arrears of salary. Such amount shall be paid to the appellant within six months from today. In case the respondents fail to refund the amount recovered within six months as directed, such amount shall, commencing from 1^st February 2013, carry interest @ 6% per annum.

¶32

Registry will send copy of this order to the respondents forthwith.

¶33

(R.M. Doshit, CJ)

¶34

(Ahsanuddin Amanullah, J)

¶35

Pawan/-

Ganesh Kumar v. the State of Bihar and Ors.

Case brief

What is this about?

What did the court decide?

Ganesh Kumar v. the State of Bihar and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

M/S Indian Oil Corporation Ltd. Vs Smt.Sandhya Prasad

Kilaru Dileep Vs P.K.Malhotra ,the G.M.,State B

Indian Overseas Bank ,Patna Br Vs M/S Life Line Surgicals and Medi

Ram Jinish Mahto Vs the State of Bihar and Ors.

Jalim Prasad Yadav Vs the State of Bihar and Ors.

Mukesh Kumar Gupta Vs the State of Bihar and Ors.