Patna High Court - Orders
Bindeshwari Prasad vs The State Of Bihar & Ors on 4 September, 2014
Author: Chakradhari Sharan Singh
Bench: Sharan Singh, Chakradhari Sharan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.12810 of 2010
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1. Bindeshwari Prasad S/O Late Bir Prasad R/O Village/Mohalla- Azad
Nagar, P.S.- Motihari Town, Distt.- East Champaran
.... .... Petitioner
Versus
1. The State Of Bihar
2. The Health Commissioner, Government of Bihar at Patna
3. The Director-In-Chief Health Services, Bihar, Patna
4. The Civil Surgeon-Cum-Chief Medical Officer East Champaran at
Motihari
5. The District Magistrate, East Champaran at Motihari
.... .... Respondents
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Appearance :
For the Petitioner : Mr. Anil Kumar, Advocate
For the Respondents : Mr. Ratan Deep Prasad, AC to AAG IX
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CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI
SHARAN SINGH
ORAL ORDER
6 04-09-2014The petitioner seeks quashing of memo No. 1223(4) dated 16.10.2007 issued by the Director-in-Chief, Health Services, Government of Bihar (respondent No.3) whereby the promotion granted to the petitioner to Supertime Selection Grade vide earlier order dated 04.05.2007 with effect from 01.04.1990 has been cancelled. The petitioner also seeks a direction commanding the respondents to grant him Supertime promotion as well as 2.5% Supertime scale of pay of Rs. 1600-2750 with effect from 01.04.1990 in terms of memo No. 503(22) dated 02.08.1984.
The impugned order dated 16.10.2007 itself will be Patna High Court CWJC No.12810 of 2010 (6) dt.04-09-2014 2/7 required to be looked into first, to decide the controversy involved in the present case.
This is not in dispute that by an order issued vide memo No. 1081 dated 04.05.2007 the petitioner was granted Supertime Selection Grade and 2.5% Supertime Selection Grade scale with effect from 01.04.1990 in the scale of Rs. 1600-2750. The said order dated 04.05.2007 has been brought on record as annexure-18 to the writ application. The order dated 04.05.2007 was slightly modified by a subsequent order dated 16.05.2007 issued by the Civil Surgeon-cum- Chief Medical Officer, East Champaran, Motihari by which, in place of the scale of Rs. 1600-2750 the petitioner was given 2.5% Supertime Selection Grade in the scale of Rs. 1500-2750 with effect from 01.04.1990. The only reason which is being assigned for cancelling the said promotion earlier granted to the petitioner is that the post of Laboratory Technician, which the petitioner was holding, was a State cadre post and it should have been granted on the basis of State level seniority list and not on the basis of district level seniority list.
I consider it appropriate to quote paragraphs 4 and 5 of the said order dated 16.10.2007 which is under challenge in the present writ application:-
"4 Okknh Jh foUns"ojh izlkn, iz;ksx"kkyk izkoSf/kd, jkT; laoxhZ; dehZ gS Patna High Court CWJC No.12810 of 2010 (6) dt.04-09-2014 3/7 vSkj jkT; Lrjh; ojh;rk lwph ds vkyksd es gh laoxhZ; izksUufr nh tk ldrh gS u fd ftyk Lrjh; ojh;rk lwph ds vk?kkj ij A 5 pwfd mi;qDr dafMdk&2 esa vkns"k la[;k 1089 fnukad 04&05&07 dks fuxZr djus es jkT; Lrjh; ojh;rk lwph dks utjvankt dh xbZ gS lkFk gh bl funs"kky; ds i=kad 437&4 fnukad 05&04&07 es fn;s x;s funsZ"k dk xyr izlax dzs lkFk mDr vkns"k fuxZr fd;k x;k gS A"
(emphasis added) This is not in dispute that the petitioner was appointed as Laboratory Technician on 29.03.1960 and he retired on 30.06.1995. Till the date of his retirement he was granted Junior Selection Grade with effect from 01.04.1981 and Senior Selection Grade with effect from 01.04.1984. Claiming that he was entitled for Supertime Selection Grade also he had earlier approached this court by filing CWJC No. 1908 of 1997 for which a recommendation was already made. The writ application was disposed of by an order of this court dated 27.07.1998 directing the Civil Surgeon-cum- Chief Medical Officer, East Champaran, Motihari to take a final decision in this regard within a period of four months from the date of receipt/ production of a copy of that order. The petitioner had to approach this court by filing contempt application being MJC No. 3686 of 1998 alleging disobedience of the order dated 27.07.1998 passed in CWJC No. 1908 of 1997. It were the State respondents who took a stand before this court that the petitioner was wrongly granted promotion to Junior Selection Grade and Senior Selection Grade. In the year 2003, the petitioner Patna High Court CWJC No.12810 of 2010 (6) dt.04-09-2014 4/7 approached this court again by filing CWJC No. 660/2003 challenging the decision of the State respondents by which the selection grade allowed to him with effect from 01.04.1984 was cancelled. By an order dated 24.05.2006, this court quashed the said order of the State respondents dated 17.07.2002 by which selection grade allowed to the petitioner with effect from 01.04.1984 was cancelled. Thereafter, by an order dated 04.05.2007 the petitioner was granted Supertime Selection Grade, as has been noted above, which has been cancelled by the impugned order dated 16.10.2007 on the sole ground that post which the petitioner held was State cadre post and on the basis of his seniority at district level, he could not have been granted such promotion.
A counter affidavit has been filed on behalf of the respondents- the State of Bihar bringing on record annexure-D, which is letter dated 14.01.1983 issued under the signature of Joint Secretary, Government of Bihar, wherein in paragraph 4 it has been indicated that cadre of X-ray technicians, Laboratory Technicians and Nurses should be maintained at State level because such posts were limited.
Learned counsel for the petitioner has drawn my attention to annexure-8 to the writ application, which is a Patna High Court CWJC No.12810 of 2010 (6) dt.04-09-2014 5/7 subsequent notification by Health Commissioner, Government of Bihar dated 02.08.1984 mentioning specifically that the post of all Laboratory Technicians, except those in medical education and medical hospital, shall be a district level cadre and such cadre will be under the control of Civil Surgeons-cum- Chief Medical Officers. Learned counsel for the petitioner submitted that communication dated 14.01.1983, as contained in annexure- D of the counter affidavit, has been considered by the subsequent communication dated 02.08.1984. He, accordingly, contends that the order cancelling the petitioner's promotion to Supertime Selection Grade is erroneous.
I find force in submission made on behalf of the petitioner. It would appear from the impugned order that the sole ground for cancelling the promotion granted to the petitioner to Supertime Selection Grade is that the post of Laboratory Technician was State cadre post and such promotion could not have been granted to him on the basis of district level seniority. The impugned order was evidently passed on the basis of annexure-D, which is communication dated 14.01.1983 without taking into account the fact that in subsequent communication dated 02.08.1984 issued by the Government of Bihar to the Accountant General, it was indicated that post of Laboratory Patna High Court CWJC No.12810 of 2010 (6) dt.04-09-2014 6/7 Technician would be a district cadre post under the control of Civil Surgeon-cum- Chief Medical Officer.
I, accordingly, hold that the impugned order dated 16.10.2007 is illegal and erroneous and based on incorrect appreciation of the decision of the State Government. The impugned order is, accordingly, quashed. The petitioner shall be entitled for all benefits consequential to quashing of the order dated 16.10.2007 on the basis of the order issued vide memo No. 1081 dated 04.05.2007/ memo No. 1586 dated 16.10.2007 issued by Civil Surgeon-cum- Chief Medical Officer, East Champaran, Motihari. He will be entitled for re-fixation of his pay and other allowances accordingly and re-fixation of his pensionery benefits. It is directed that respondents, particularly, the Civil Surgeon-cum- Chief Medical Officer, East Champaran, Motihari shall ensure payment of arrears after calculating the petitioner's pay, which he is found to be entitled to on grant of promotion to Supertime Selection Grade. He will also ensure that necessary sanction orders are issued to the office of Accountant General for fixation of his pension and retrial dues accordingly. The entire exercise must be done and arrears must be paid within a period of six months from the date of receipt/ production of a copy of this order before the Civil Surgeon-cum- Chief Medical Patna High Court CWJC No.12810 of 2010 (6) dt.04-09-2014 7/7 Officer, East Champaran, Motihari.
In the facts and circumstances of the case, I am of the view that the petitioner is entitled for cost also. Accordingly, respondent No.3, the Director-in-Chief, Health Services, Government of Bihar is directed to pay to the petitioner a sum of Rs. 5,000/- by way of cost which must be paid within six months from the date of receipt/ production of a copy of this order.
This writ application is, accordingly, allowed.
(Chakradhari Sharan Singh, J) BKS/-
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