- (1.) THIS writ application has been filed for quashing Annexures -20 and 21, whereby the promotion of petitioner on the post of Statistical Investigator has been cancelled.
(2.) IT appears that petitioner was initially appointed on the post of Sanganak (Computer) on 20.04.1983 and accordingly, he joined on that post on 26.04.1983. It further appears that Civil Surgeon -cum Chief Medical Officer, Dhanbad (hereinafter referred as C.M.O.') asked Superintendent of various Sub -Divisional Hospital and Incharge Medical Officers of Primary Health Centres. Additional Primary Health Centres and Government Hospital to forward applications of Class -III and Class -IV employees for their promotion on higher posts. By Annexure -4, the C.M.O, Dhanbad asked the aforesaid Medical Officers to inform those class -III and class -IV employee, who applied for their promotion, to appear in interview on 16.05.1990. It is stated that the petitioner also appeared before the district Establishment Committee for interview. It is stated that District Establishment Committee recommended the name of petitioner for promotion on the post of Statistician. Accordingly, C.M.O.. Dhanbad (respondent No.5) provisionally promoted petitioner on the post of Statistician vide Annexure -4 in anticipation of approval of Principal Secretary. Health Services. Bihar. patna. It further appears that C.M.O., Dhanbad seek approval of Principal Secretary, Health Services through Memo No. 470 dated 16.07.1990. Annexure -8 reveals that the Chief Director, Health Services, Bihar, Patna had cancelled the aforesaid promotion on the ground that the post of Statistician is not available at the district level and on the said post Computer (Sanganak) cannot be promoted. It appears that thereafter C.M.O., Dhanbad (respondent No.5) modified the earlier order of promotion as contained in Annexure -4 and had said that It would be deemed that the petitioner was promoted on the post of Statistical Investigator. Thereafter, the said order of promotion was cancelled by C.M.O., Dhanbad vide his order dated 14.09.1991. It is worth mentioning that thereafter petitioner filed a representation before the Chief Director and on the basis of the aforesaid representation, vide Annexure -14. Chief Director. Health Services directed that if the petitioner is eligible for holding the post of Statistical Investigator the District Establishment Committee should consider his case in accordance with law. It is stated that petitioner's case was considered by the District Establishment Committee and on the recommendation of District Establishment Committee petitioner was provisionally promoted on the post of Statistical Investigator in anticipation of approval of Chief Director. Health Services. Bihar. Patna. It appears that though the petitioner was promoted by Annexure -15 he was not paid his salary. Aggrieved with the same petitioner filed a writ application in Hon'ble Patna High Court vide C.W.J.C. No. 9752 of 1993. which was disposed of with a direction that the petitioner may file a representation before the Director. Health Services and Director. Health Services shall dispose of the same by a reasoned order. Accordingly, petitioner filed a representation by Annexure -I8 which was disposed of by Director, Health Services vide Annexure -20. It appears from Annexure -20 that the promotion of petitioner was cancelled because the same was not in accordance with law. A counter -affidavit has been filed by the State of Bihar as well as by the State of Jharkhand. In the counter -affidavit filed by State of Bihar, it is specifically stated at paragraph No. 5 that the post of Statistical Investigator is a State Cadre post. It is further stated in the said counter -affidavit that the C.M.O. has no Power to give promotion on the post of Statistical Investigator. In supplementary counter -affidavit dated 26.09.2011, the State of Bihar annexed a Circular by which the different authorities were given power to appoint different employees in the Health Department. Civil Surgeon -cum -Chief Medical Officer was given power to appoint only fourth Grade and third Grade employee including ANM. who are below the rank of Senior Selection Grade, whereas Chief Director. Health Services was given power to make appointment of other Class -III employees. In Para -6 of the said Circular, it is specifically mentioned that the cadre of employees, who would be appointed by the Chief Director. Health Services is of State Level. Accordingly, it is stated in the counter -affidavit that C.M.O., has no power to promote petitioner on the post of Statistical Investigator, because it is a State Cadre post.
(3.) IT is submitted by Dr. S.N. Pathak, Senior Advocate, appearing for the petitioner that once the petitioner was promoted on the recommendation of District Establishment Committee, the Chief Director. Health Services has no power to cancel the same and that too without giving the petitioner any opportunity of being heard,;