UMESH CHANDRA JHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard Mr. Prafull Chandra Jha, learned counsel for the petitioner and Miss Juhi Kumari, learned AC to AAG-13 for the State. Mr. Jha, learned counsel for the petitioner, assailing the impugned order of reversion of the petitioner from the post of Basic Health Worker to Sweeper-cum-Servant, has submitted that the impugned order, passed after 25 years of promotion of the petitioner, is wholly unsustainable, inasmuch as, the petitioner was never given copy of the enquiry report on the basis of which he was sought to be reverted from service, He has further submitted that as a matter of fact, no departmental proceeding was held against the petitioner before passing the order of reversion, which is a major punishment in. terms of the Civil Services Classification Appeal Rules, 2005. He has also submitted that in any event, the order recovery of the payment of salary made to him on the promotional post of Basic Health Worker cannot be justified either on fact or in law specially when in the show-cause notice, the petitioner was even not asked anything about such recovery. He has finally submitted that the petitioner has already retired from service on 31.12.2009 and, therefore, if the impugned order of reversion is allowed to stand, he would be looser in the matter of getting his retirement benefit.

(2.) Counsel for the State, on the other hand, has submitted that the petitioner's appointment against the Class-IV post in the year 1970, being against a non-technical post, he could not have earned promotion on a technical post, namely, Basic Health Worker. She has further explained this aspect as also dwelt upon the pleas raised in the counter affidavit that such promotion given by the Civil Surgeon to the petitioner was itself per se illegal and, as such, did not cloth him with any right.

(3.) In the considered opinion of this Court, there cannot be any dispute on the question of law that a person cannot be promoted on a post, which does not fall in his or her line of promotion. The difficulty, however, in the facts of present case is that when in the year 1982, such promotion was given to the petitioner after his continuing for a period of twelve years against a Class-IV post, there was no Government order there in existence which had classified the post of Basic Health Worker as a technical post. Such concept of 'Basic Health Worker as a technical post in fact after change of basic qualification in terms of the recommendation of the Central Government, was introduced only in the year 1966 (s/c-1986?)and only thereafter avenue of promotion of a Class-IV employee against the post of Basic Health Worker was closed. Once this aspect, therefore, would becomes clear that the post of Basic Health Worker in the year 1982 was not a specified technical post, there would be no difficulty in coming to a conclusion that the petitioner's promotion in the year 1982 was very much permissible in view of his holding the lower Class-IV post for a period of twelve years.