Patna High Court - Orders
Kusheshwar Nath Pandey vs The State Of Bihar &Amp; Ors on 25 October, 2010
IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.4369 of 2010
1. KUSHESHWAR NATH PANDEY S/O LATE NAGINA PANDEY R/O
VILL.- BASAHI, P.S.- BARIYARPUR, DISTT.- SARAN
Versus
1. THE STATE OF BIHAR THROUGH THE SECRETARY,
DEPARTMENT OF MINOR IRRIGATION, GOVT. OF BIHAR, PATNA
2. THE CHIEF ENGINEER, DEPARTMENT OF MINOR IRRIGATION,
GOVT. OF BIHAR, PATNA
3. THE SUPERINTENDING ENGINEER, MINOR IRRIGATION CIRCLE
BHAGALPUR, BIHAR
4. THE EXECUTIVE ENGINEER, MINOR IRRIGATION DIVISION,
BHAGALPUR, BIHAR
5. THE ACCOUNTANT GENERAL BIHAR, BIRCHAND PATEL MARG,
PATNA-1
-----------
02. 25.10.2010The petitioner is aggrieved by the orders dated 16.9.2009 and 5.10.2009. The former cancels the first time bound promotion granted to him on 13.11.1998 with effect from 1.9.1991. The latter orders recovery of Rs. 1,84,201/- in pursuance thereof. The impugned order dated 16.9.2009 is based on objections raised by the Audit Department that the promotion granted was wrong in absence of the petitioner having cleared the departmental Accounts examination.
The petitioner is stated to have superannuated on 31.5.2009.
Learned counsel for the petitioner submits that the petitioner has passed the departmental Accounts examination in the year 2007. The respondents have not considered his reply to the show cause notice by a reasoned and speaking order before issuance of the impugned order.
2Learned counsel for the State from the counter affidavit submits that the petitioner has passed the Accounts examination by mis-representing himself as belonging to the Scheduled Caste, when in fact he belonged to the General Category.
The impugned order cancelling the promotion of the petitioner only refers to his non-passing of the Accounts examination as pointed out by the audit objection. It does not state or refer to any misrepresentation by the petitioner of belonging to the reserved category to pass the examination. If the petitioner had not passed the Accounts examination it was for the respondents to specifically assert the same as a fact to their satisfaction, in the order, rather than only reiterating what the audit objection may have opined.
If what the petitioner contends is correct and he has passed the Accounts examination in the year 2007, the impugned order dated 16.09.2009 is clearly founded on non est grounds. The subsequent order dated 5.10.2009 shall then automatically become unsustainable. Perhaps, if the respondents had disposed his reply to the show cause notice by a reasoned order before cancelling his time bound promotion nearly 11 years later and that to after his 3 superannuation an adjudicatory order in place of what is virtually in the nature of an ex-parte order may have brought matters to finality in favour of one or the other.
An administrative order has to be examined on basis of the recitals contained in the order. What is written in the order cannot be explained or supplemented in a counter affidavit. A bad order cannot be infused fresh life by statements in context thereof made in the counter affidavit. The counter affidavit in any event is silent with regard to the reasons while the cause shown by the petitioner was not acceptable.
The respondents cannot urge a ground in the counter affidavit not mentioned in the impugned order. Even if this Court were to permit them to do so, if they make allegations against the petitioner that he committed any fraud, it was for them to demonstrate the fraud by bringing on record necessary information and documents preceded by a show cause notice to the petitioner on that specific ground to arrive at a final finding of fact on any misconduct or misdemeanor on the part of the petitioner. The counter affidavit is completely silent both with regard to any show cause notice issued to the petitioner much less does it contain any documentary evidence in support of their stand that the petitioner mis-represented himself as belonging 4 to the Scheduled Caste category to pass the examination.
The Supreme Court in 2001 (1) SCC 610 (State Government Houseless Harijan Employees Association Versus State of Karnataka) at paragraph-49 relying upon 1978 (1) SCC 405 (Mohinder Singh Gill Versus Chief Election Commissioner) has held as follows:-
"49. The basis on which the learned Single Judge dismissed the appellant's writ petition was that there was no approval of the appropriate Government to the acquisition, namely, the absence of the third factor noted above. This was not the ground on which withdrawal from the acquisition had been made and it was not open to the State Government to justify its decision on any other ground. As held by this Court in Mohinder Singh Gill v. Chief Election Commr.7:
(at SCC p. 417, para 8) "[W]hen a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out."
The petitioner was promoted in the year 1998. He has superannuated on 31.5.2009. No substantive promotion was given to him, but only certain increments by way of a time bound promotion. The impugned order mentions a ground for cancellation of the promotion, the counter affidavit seeks to urge 5 another ground at variance with the same.
The order dated 16.09.2009 cancelling the promotion after submission of reply to the show cause notice is unreasoned and non-speaking. The unreasoned nature of the order also renders its arbitrary.
Considering the entirety of the matter, the long years that have passed after promotion was granted, the petitioner having superannuated, the absence of any, reasoned order considering his reply to the show cause before passing the impugned order and the failure of the respondent to bring substantive materials on record in their counter affidavit supported by documentary evidence of any alleged fraud by the petitioner, the Court is satisfied of the illegality and unsustainability of the impugned orders.
The impugned orders dated 16.9.2009 and 5.10.2009 are accordingly set aside. Any recovery made from the petitioner is directed to be refunded forthwith.
The writ application stands allowed.
P.K. (Navin Sinha, J.)