The State Of Bihar And Ors vs Amrendra Prasad Yadav
2022 Latest Caselaw 4826 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                      Letters Patent Appeal No.1074 of 2018
                                        In
                   Civil Writ Jurisdiction Case No.348 of 2016
     ======================================================

1. The State of Bihar through the Commissioner-cum-Secretary, Water Resources Department, Government of Bihar, Patna, Sinchi Bhawan, Patna.

2. The Deputy Secretary, Water Resources Department, Sinchai Bhawan Government of BIhar, Patna.

3. The Director Land acquisition and Rehabilitation Department, Water Resources Department, Sinchai Bhawan Government of Bihar, Patna

4. The Special Land Acquisition-Cum-Rehabilitation Officer, Koshi Project Saharsa, Bihar.

... ... Appellant/s Versus Amrendra Prasad Yadav Son of Late Deo Narayan Yadav, Resident of Village- And Post Office- Mohanpur Choumukh, Police Station- Bihariganj, District- Madhepura Bihar.

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Anjani Kumar, (AAG-4) Mr. Deepak Sahay Jamuar, AC to AAG-4 Mr. Utkarsh Bhushan, Advocate For the Respondent/s : Mr. Sanjay Kumar, Advocate Mr. Ashok Kumar No.6, Advocate Mr. Akhilesh Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI and HONOURABLE MR. JUSTICE PURNENDU SINGH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)

Date : 06-12-2022

Heard learned counsels for the parties.

2. The instant L.P.A. is filed by the State of Bihar in

questioning the order of the learned Single Judge dated

22.03.2018 passed in C.W.J.C. No. 348 of 2016.

3. Respondent Amrendra Prasad Yadav had filed

C.W.J.C. No. 348 of 2016 and had prayed for following reliefs Patna High Court L.P.A No.1074 of 2018 dt.06-12-2022

in the writ petition:-

"(i) For quashing the order dated 03.04.2014 issued under Memo No. 649 dated 04.04.2013 passed by the Director, Land Acquisition and Rehabilitation, Water Resources Department, Government of Bihar, Patna.

(ii) For direction to the respondents to regularize his service till his retirement i.e. 31.12.2013, and to pay all consequential benefits for which he is entitled in accordance with law.

(iii) For any other relief."

4. The learned Single Judge allowed the writ

application.

5. Earlier Respondent- Amrendra Prasad Yadav had

filed C.W.J.C. No. 7766 of 2003 before this Court questioning

his termination which was disposed of on 30 th March, 2010 in

favour of the respondent. Thereafter L.P.A. No. 1046 of 2011

was preferred by the State-appellant (The State of Bihar &

another Vs. Amrendra Prasad Yadav) against the order dated 30th

March, 2010 passed in C.W.J.C. No. 7766 of 2003 and it was

allowed on 13.09.2011 (Annexure-13 of writ petition).

6. Respondent- Amarendra Prasad Yadav was

initially appointed as a Peon on 09.12.1980. He was promoted

to the post of Junior Accounts Clerk and Senior Accounts Clerk

on 06.09.1982 and 20th December, 1988 respectively. He was Patna High Court L.P.A No.1074 of 2018 dt.06-12-2022

continued to hold the post as on 31.12.2013, the date on which

he has attained age of superannuation and retired from service.

In the meanwhile, appellant-State opened their eyes that there

were certain illegalities in the initial appointment to the post of

Peon and further promotion to the post of Junior Accounts Clerk

and Senior Accounts Clerk in the year 1980, 1982 and 1988

respectively. On the alleged allegations relating to illegalities in

appointment and promotion his services were displaced. Feeling

aggrieved and dissatisfied with the appellants' action, he invoke

remedy before this Court. Initially he had benefit of interim

prayer. Writ Court while deciding respondent's writ petition,

remanded the matter to the appellant. Thereafter, show cause

notice was issued on 14.02.2013 for which respondent had filed

his reply on 15.03.2013. In the result, dismissal order was

passed on 04.04.2013. Thus, respondent has invoke the remedy

in filing C.W.J.C. No. 348 of 2016 in questioning dismissal

order dated 04.04.2013. The learned Single Judge allowed

C.W.J.C. No. 348 of 2016 on 22.03.2018. State-appellant feeling

aggrieved and dissatisfied with the order of the learned Single

Judge presented this appeal.

7. Learned counsel for the appellant-State

vehemently contended that from the inception, namely, date of Patna High Court L.P.A No.1074 of 2018 dt.06-12-2022

appointment to the post of Peon till promotion to the post of

Senior Accounts Clerk were illegal. In this regard, disciplinary

action has been initiated and it was concluded against such of

those officers who were alleged to have involved in the process

of appointment and promotion of the respondent herein.

Therefore, there is no infirmity in the order of dismissal and the

learned Single Judge has committed error in not appreciating the

factual aspect of the matter that the initial appointment and

further promotion of the respondent are contrary to material

information. It is further submitted that promotion granted in the

year 1982 and 1988 is contrary to Government Policy decision

dated 11.06.1986. Hence, the impugned order is liable to be set

aside while affirming the order of dismissal dated 04.04.2013.

8. Per contra, learned counsel for the respondent

resisted the aforesaid contentions and submitted that there is

inordinate delay in raking up the issue relating to initial

appointment and promotion orders passed in the year 1980,

1982 and 1988 and it has attained finality in the year 1988. It is

submitted that if there are any irregularities in respect of

appointment to the post of Peon and the same is doubted by the

appellant-State in that event they were required to follow due

process of law in the year 1980 with reference to his date of Patna High Court L.P.A No.1074 of 2018 dt.06-12-2022

initial appointment in the year 1980. In the year 2003, status of

the respondent, like a regular appointee and he had extended all

service and monetary benefits time to time including two

promotions. Therefore, if illegal appointment had been noticed

and if the respondent was involved in the process of illegal

appointment and promotion in that event State-appellant should

have initiated disciplinary proceedings while invoking various

provisions of the Bihar Government Servants (Classification,

Control & Appeal) Rules, 2005 (Hereinafter referred to as

"Bihar CCA Rules, 2005"). On the other hand, they have

resorted to only issuing show cause notice and obtaining reply

and proceeded to pass order of dismissal. It is further submitted

that before passing order of dismissal it was the bounden duty of

the disciplinary authority to first revert him from the post of

Senior Accounts Clerk to that of Junior Accounts Clerk and

further to the post of Peon for which post he was initially

appointed. The disciplinary authority/appointing authority failed

to resort the aforesaid statutory provision of law. It is also

submitted that State-appellant have not taken any action to

withdraw or cancel the promotion. On the other hand, they

resorted to imposing penalty of dismissal from service.

Dismissal order could be passed only after resorting or adhering Patna High Court L.P.A No.1074 of 2018 dt.06-12-2022

to the Bihar C.C.A. Rules, 2005. Therefore, there is no infirmity

in the order of the learned Single Judge dated 22.03.2018 passed

in C.W.J.C. No. 348 of 2016.

9. Heard learned counsels for the respective parties.

10. Respondent- Amarendra Prasad Yadav was

initially appointed as a Peon on 09.12.1980 and he earned

promotion to the post of Junior Accounts Clerk and Senior

Accounts Clerk on 06.09.1982 and 20th December, 1988. The

State - appellant noticed certain irregularities stated to have

been committed by the officers of the department while

appointing petitioner to the post of Peon in the year 1980 and

further promoting him to the post of Junior Accounts Clerk and

Senior Accounts Clerk in the year 1982 and 1988 respectively.

Such alleged irregularities have been noticed only in the year

2003. Appellants-State had issued notice on 17.01.2003 and

12.07.2003. Respondent had filed his reply/objection and the

same was not appreciated by the State-appellants and appellants

proceeded to dismiss Respondent's services. Respondent invoke

remedy under Article 226 of the Constitution in filing C.W.J.C.

No. 348 of 2016 before this Court and got favourable order,

however matter was remanded to the appellants to re-visit the

entire matter and proceed to pass order in accordance with law. Patna High Court L.P.A No.1074 of 2018 dt.06-12-2022

11. Thus, appellants had issued show cause notice

on 14.02.2013 and on receipt of reply on 15.03.2013 proceeded

to impose penalty of dismissal from service on 04.04.2013.

12. Appellants have failed to apprise this Court

what are the irregularities committed by the concerned officials

in appointing petitioner to the post of Peon and further

promotion to the post of Junior Accounts Clerk and Senior

Accounts Clerk and it is stated that appointment and promotions

were illegal and contrary to relevant provisions/ executive order.

The same is not supported by material information. No doubt

there is a serious lapses on the part of the State in promoting

respondent to the post of Junior Accounts Clerk and Senior

Accounts Clerk in the year 1982 and 1988 respectively for the

reasons that in the absence of creation of post of Junior

Accounts Clerk and Senior Accounts Clerk how promotions

have been made from the post of Peon. When we posed question

to the State, they were unable to answer and apprise this Court

on what date the post of Junior Accounts Clerk and Senior

Accounts Clerk were created and what is the mode of

promotion. On the other hand, respondent's counsel relied on

Annexure-J to the supplementary affidavit, method of

promotion issued on 28th February, 1989.

Patna High Court L.P.A No.1074 of 2018 dt.06-12-2022

13. On/from perusal of Annexure-J to the

supplementary affidavit, it is evident that it is general in nature.

In other words, it is not relating to promotion to the post of

Junior Accounts Clerk or Senior Accounts Clerk. They were

unable to apprise this Court existence of Junior Accounts Clerk

and Senior Accounts Clerk in a particular department. For the

purpose of promotion to any post the minimum requirement is

existence of a particular promotional post and further what is the

mode of recruitment to such a promotional post whether is it by

promoting from the feeder cadre. If it is from feeder cadre,

further question would be final seniority list of the feeder cadre.

All these materials is required to be taken note of for the

purpose of promotion. It is astonished to know that the State of

Bihar -appellants have rake up the issue about irregularities after

more than a decade. In the present case, finality in respect of

taking action is attained only on 04.04.2013 with reference to

the alleged incident in the year 1980, 1982 and 1988. In other

words, departmental officials and superior are sleeping over the

matters for years together which is deprecated, for the reasons

that ultimately tax payers money is being spent on the

illegalities committed by the State-department.

14. Irregularities in appointment to the post of Peon, Patna High Court L.P.A No.1074 of 2018 dt.06-12-2022

further promotion to the post of Junior Accounts Clerk and

Senior Accounts Clerk with reference to the order passed in the

year 1980, 1982 and 1988 cannot be interfered in the year 2022

for the reasons that respondent has attained age of

superannuation and retired from service on 31.12.2013.

15. Time and again Courts have taken note of

belated action on behalf of authorities and in not interfering with

the action taken by the State. Recently, in the case of Yogendra

Prasad in C.W.J.C. No. 4737 of 2017 (para 6) we have noticed

that irregularities in promotion in the year 1997 was noticed and

concerned authority proceeded to rectify the same after lapse of

more than a decade and during the pendency of the litigation

such employee has already attained age of superannuation and

retired from service.

Para 6 of C.W.J.C. No. 4737 of 2017 reads as

under:-

"6. Having regard to the fact that petitioner had rendered service in the post of Sr. Section Engineer for more than one decade, one has to draw inference that he is a regular holder of the post of Sr. Section Engineer. Therefore, revisit of eligibility to promotion at this distance of time would be a daunting exercise for the Respondent-Department. Retrieving correct data to rework seniority commencing from the year 1997 or earlier would be extremely difficult, resulting further litigation among Patna High Court L.P.A No.1074 of 2018 dt.06-12-2022

retired persons. The matter, in our view, must rest there so that the pensioner is not left in a stake of uncertainly at this stage of his life after rendering decades of service to the Respondent-Department."

If the promotion is to be undone rights accrued in

favour of several persons would be affected including retired

persons. These issues have been taken note of while granting

relief to the concerned person/ employee. In the present case

also respondent was initially appointed to the post of Class-IV

and promoted to the post of Junior Accounts Clerk and Senior

Accounts Clerk in the year 1982 and 1988 respectively and he

has attained age of superannuation on 31.12.2013.

Dismissing him from service would be too harsh

when he has rendered service from the year 1980 to 31.12.2013.

Dismissal is not on account of any misappropriation of

government fund or money. Moreover, department have not

pointed out whether respondent was involved in alleged

irregularities in appointment and promotion and what is the role

played by him so as to punish him in the absence of alleged

allegations against the respondent, imposition of penalty of

dismissal from service that too without resorting to Bihar CCA

Rules, 2005. To some extent, learned Single Judge has taken

note of how the order of dismissal dated 04.04.2013 is bad.

Patna High Court L.P.A No.1074 of 2018 dt.06-12-2022

16. In the light of these facts and circumstances,

appellant- State have not made out a case so as to interfere with

the order of the learned Single Judge dated 22.03.2018 passed in

C.W.J.C. No. 348 of 2016.

17. Accordingly, present L.P.A. stands dismissed

with exemplary cost of Rs. 1,00000/-. The cost shall be remitted

in the Prime Minister Relief Fund within six months from the

date of receipt of this order.

                                                   (P. B. Bajanthri, J)


                                                  ( Purnendu Singh, J)

rakhi
AFR/NAFR
CAV DATE                NA
Uploading Date          15.12.2022
Transmission Date       NA