BISHWANATH YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) Regard being had to the commonality of the controversy involved the appeals were heard analogously and are disposed of by a singular order. For the sake of clarity and convenience the facts in L.P.A. No. 860 of 2009 arising out of C.W.J.C. No. 11572 of 2005 are adumbrated herein.

(2.) The appellant invoked the inherent jurisdiction of this Court under Article 226 of the Constitution of India challenging the order of cancellation of his adjustment and posting as Assistant as a consequence of which he was shifted back to his original post, namely, Special Cholera Worker. The cancellation had taken place on the bedrock that he was promoted in the higher pay-scale by the Civil Surgeon to the post of Assistant which was totally in infraction of the Rules. It was contended before the learned Single Judge such cancellation and shifting was in violation of the principles of natural justice inasmuch as they were never asked to show cause on what basis or foundation his adjustment on the post of Clerk was sought to be cancelled and further his representation questioning the propriety of such an action of the Civil Surgeon, was never considered. It was further urged that the persons, who belong to the same class or category, were still working on their adjusted/promoted post but no action has been taken against them. Additionally, it was set forth that he had continued for a long period in service and hence, his services deserved to be better utilized on the post of Assistant keeping in view the concept of experience.

(3.) The stand put forth by the writ petitioner was combatted by the State contending, inter alia, that the said order of cancellation was passed in view of the decision rendered by this Court in L.P.A. No. 448 of 2005, which was disposed of on 7.7.2005 which has been affirmed in Civil Appeal No. 4386 of 2006 decided on 10th October, 2006. The learned Single Judge, as is evident from the order impugned, placed reliance on the decision rendered by the Division Bench in L.P.A. No. 448 of 2005 and came to hold that the contention that there was violation of principle of natural justice did not merit consideration; that the petitioners as well as the other petitioners in other writ petitions were members of technical grade and their job was to work in the field but they conveniently got themselves placed as the Clerks in the non-technical cadre; that the claim of some of the petitioners, who were absorbed by virtue of Government decision, was not substantiated; that the controversy has already been settled by the Division Bench which has been affirmed by the Apex Court; that the claim to be adjusted because of some experience would be travesty of justice and no equity can be claimed by them as their promotion/adjustment is through the backdoor method as a result of which other equally placed incumbents have been deprived of being considered; that the writ petitioners could claim priority on the post, which are in their channel of promotion but as there was no channel of promotion on the post of Assistant their seeking equivalence on the plea that there was no promotional avenue in the technical cadre is of no significance inasmuch as even in technical cadre the specification of general cadre is different and there is different channel of promotion; and that the petitioners would not be liable to return the salary component which they had received while working in the higher post in view of the orders passed by the Supreme Court in the earlier case.