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Patna High Court

Anupam DvivediversusThe State of Bihar

Decided
Disposal
DISPOSED

Holding

The court set aside the demotion orders, holding that the promotion was valid and the impugned orders were arbitrary and unsupported by reason.

Summary

The petitioner, a widow appointed on compassionate grounds as a Class‑IV clerk in 2011, was later promoted to Lower Division Clerk (Class‑III) in 2016 based on her intermediate qualification and a state policy reserving 15% of promotions for Group‑D employees. In 2022 the Director‑in‑Chief, Health Services, issued Memo 893 demoting her back to Class‑IV, and the Civil Surgeon issued Memo 2031 confirming the reversion, without considering her representations. The petitioner challenged the demotions, arguing that the promotion was valid, that the authorities exceeded their jurisdiction, and that the orders were passed without any reasoning, violating service jurisprudence. The court examined the relevant state notifications, the competence of the appointing authority, and the procedural requirements under Memo 1060(4) dated 01‑12‑2014. Finding that the promotion had been lawfully granted under the 15% quota policy and that the demotion orders were arbitrary and unsupported by reason, the court set aside both memos and directed the respondents to verify compliance with the promotion procedure before taking any further action. No adverse order was to be imposed on the petitioner for the period she served in the promoted post.

Issues considered

  • Whether the demotion of the petitioner by Memo 893 and Memo 2031 was arbitrary and violative of service law.
  • Whether the Director‑in‑Chief, Health Services, and the Civil Surgeon had competence to cancel the promotion.
  • Whether a promotion granted on compassionate appointment grounds can be cancelled under Notification No. 13293/1991.
  • Whether the procedure prescribed in Memo 1060(4) dated 01‑12‑2014 for promotion of Group‑D employees was complied with.

Subjects

  • service law
  • promotion
  • demotion
  • compassionate appointment
  • administrative law
  • writ petition
  • health services
  • competent authority
  • procedural fairness

Judgment

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                 Civil Writ Jurisdiction Case No.16617 of 2022
     ======================================================
     Anupam Dvivedi Widow of Late Vikash Kumar Dvivedi, Resident of Shankar
     Chowk, Ward No-18, Bettiah, District-West Champaran.

                                                                  ... ... Petitioner
                                       Versus
1.   The State of Bihar through the Chief Secretary, Govt. of Bihar. Patna.
2.   The Principal Secretary, Health Department, Govt. of Bihar, Patna.
3.   The Director in Chief Health Services, Bihar, Patna.
4.   The Additional Director, Health Services-Cum-State Programme Officer,
     Leprosy, State Leprosy Eradication Office, Bihar, Patna.
5.   The Civil Surgeon-Cum Chief Medical Officer, West Champaran at Bettiah.

                                               ... ... Respondent/s
     ======================================================
     Appearance :
     For the Petitioner/s     :      Mr. Abhay Shankar Singh, Advocate
                              :      Mr. Akshansh Shanker Singh, Advocate
                              :      Mr. Barun Kumar Singh, Advocate
                              :      Mr. Amit Kumar Mishra, Advocate
     For the State            :      Mrs. Vijaya Laxmi Srivastava, AC to SC-23
     ======================================================
     CORAM: HONOURABLE MR. JUSTICE RITESH KUMAR
     ORAL JUDGMENT
      Date : 03-02-2026

                            Heard the parties.

                       2. The present writ petition has been filed for the

      following reliefs:-

                                     A) For issuance of an appropriate
                                        writ/writs, order/orders to quash the
                                        non speaking and unreasonable
                                        order contained in Memo No. 893
                                        dated    7.10.2022     (Annexure-12)
                                        issued   under    signature    of    the
                                        Director in Chief Health Services,
                                        Bihar, Patna (Respondent No-3) by
                                        which    the   petitioner   has     been
                                        demoted from the post of Lower
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                                           division clerk (LDC) to the class-IV
                                           post under Civil Surgeon, Bettiah in
                                           most arbitrary and unreasonable
                                           manner without any justification and
                                           contrary to the established norms of
                                           the Service Jurisprudence.
                                        B) For a consequential writ to set-aside
                                           the follow up order contained in
                                           memo        no.2031   dated      3.11.2022
                                           issued from the office of Civil
                                           Surgeon-cum-Chief Medical Officer,
                                           West          Champaran,              Bettiah
                                           (Annexure-13)         by      which       the
                                           petitioner has been demoted from
                                           the class-III post of clerk to the
                                           class-IV post of office attendant and
                                           has     been posted         at Additional
                                           Primary Health Centre, Senuwaria
                                           (Majhaulia) and further the writ of
                                           mandamus or any other appropriate
                                           writ/writs. order/orders, direction/
                                           directions upon the respondents to
                                           allow the petitioner to continue as
                                           Lower Division Clerk (LDC) in the
                                           pay scale of 5200-20200/- grade pay
                                           1900/-under      Civil      Surgeon-cum-
                                           Chief       Medical        Officer,     West
                                           Champaran, Bettiah.
                         3. At the outset, the learned counsel for the

         petitioner submits that after death of her husband, the petitioner

         was appointed on compassionate ground vide Memo No. 142

         dated 16.01.2011, issued under the signature of the Civil
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         Surgeon-Cum-Medical Officer, West Champaran at Bettiah, on a

         class-IV post in the pay scale of Rs. 4440-7440/- with grade pay

         of Rs. 1300/-. The appointment of the petitioner was made on

         the recommendation of the District Compassionate Appointment

         Committee vide its meeting dated 07.12.2010 and the

         recommendation made by the District Magistrate, West

         Champaran at Bettiah vide Memo No. 743 dated 09.12.2010.

         Accordingly, the petitioner gave her joining at Additional

         Primary Health Centre, Leprosy Eradication Unit, Bettiah.

                         4. It has further been contended on behalf of the

         learned counsel for the petitioner that although the petitioner

         was having Intermediate qualification at the time of her

         appointment, but the respondent authorities deliberately by

         ignoring the same, appointed the petitioner on Class-IV post,

         although being Intermediate pass, she was entitled for being

         appointed on Class-III post. It has further been contended that at

         the same time i.e. in 2011, in the same district, some other

         appointments were also made on compassionate ground and the

         persons having qualification of Intermediate degree were

         appointed on Class-III posts. In support thereof, the petitioner

         has brought on record Annexure-2 to the writ petition which has

         been issued by the District Magistrate, West Champaran at
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         Bettiah.

                         5. It is further case of the petitioner that the State

         Government vide notification dated 02.12.2023 contained in सं ०

         सं ०-4/वववध-8-102/2013-1720(4) (annexure-3 to the writ petition)

         issued under the signature of the Director-In-Chief, Health

         Services, Bihar, Patna addressed to State Programme Officer

         (leprosy,      malaria, filaria, tuberculosis, blindness), all the

         Superintendent/Principal of all the medical colleges/hospitals

         and all the Civil Surgeons in the State of Bihar, it was directed

         that in view of the letter issued by the General Administration

         Department on 23.03.2011, a provision has been made for grant

         of promotion to the clerical cadre, from group “घ" employees

         on the basis of seniority and roster, who having qualification of

         matriculation against 15% quota. Subsequently, vide Memo No.

         209 dated 25.05.2015 issued under the signature of the District

         Programme Officer (Leprosy), State Leprosy Eradication Office,

         Bihar, Patna addressed to all the District/In-Charge, District

         Leprosy Eradication Officers, it was intimated/directed that in

         view of the letter dated 02.12.2013 issued by the Director-In-

         Chief, Health Services (Annexure-3 to the writ petition), the

         original certificate of Matriculation is required of Class-IV

         employees, working in the services of the State Government in
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         National Leprosy Programme, for being promoted to the post of

         Clerk. Some other directions were also given in the above

         mentioned letter. In compliance thereof, the Additional Chief

         Medical Officer-Cum-Drawing and Disbursing Officer, Leprosy

         Control Unit, West Champaran at Bettiah vide his letter no. 15

         dated 12.06.2015, addressed to the State Programme Officer

         (Leprosy), Bihar, Patna recommended the case of the petitioner

         for her promotion to Class-III post. Along with the letter, all the

         relevant documents, including the educational qualification of

         the petitioner were also sent.

                         6. It if further case of the petitioner that vide memo

         no. 266 dated 27.07.2016 issued under the signature of the

         Additional Director, Health Services-Cum-State Programme

         Officer (Leprosy), Bihar, Patna, the petitioner was promoted to

         the post of LDC in the pay scale of Rs. 5200-20200/- with grade

         pay of Rs. 1900/- and the petitioner was posted in the office of

         the State Leprosy Eradication Office, Bettiah. In compliance of

         Memo No. 266 dated 27.07.2016, the competent authority vide

         order contained in Memo No. 309 dated 14.02.2017 notified the

         same and gave posting to the petitioner. Subsequently, the

         petitioner appeared in the departmental examination, which was

         held on 26.12.2017 and 27.12.2017, wherein she was declared
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         successful. The name of the petitioner appears at serial no. 7 of

         the result of the said departmental examination.

                         7. It has further been contended by the learned

         counsel appearing on behalf of the petitioner that all of a sudden

         vide letter no. सं ०सं ०-11/एल० (सथा०)-05/2018- 192 (11) dated

         10.03.2022 issued under the signature of the Director-in-Chief,

         Health Services, Bihar, Patna, a show cause notice was issued to

         the petitioner that why the promotion given to her be not

         cancelled, since the same has been given in violation of the

         Department Notification No. 1060(4) dated 01.12.2014, wherein

         the appointing authority for clerical cadre has been notified as

         Civil Surgeon in the District and the Superintendent in the

         Medical colleges and hospitals. It was further mentioned in the

         letter that the State Programme Officer (Leprosy), Bihar, Patna

         is not the competent authority to grant the same. Immediately

         thereafter, vide letter no. सं ०सं ०-11/एल० (सथा०)-05/2018-257(11)

         dated 30.03.2022, a reminder was sent to the petitioner to give

         her explanation within one week. In compliance thereof, the

         petitioner submitted her detailed representations on 26.03.2022

         and 12.04.2022, wherein the petitioner gave all the relevant

         documents and her explanation to the show cause notice issued

         on 10.03.2022 and 30.03.2022. It has further been contended
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         that vide memo no. 893 (11) dated 07.10.2022 issued under the

         signature of Director-In-Chief (disease control, public health,

         paramedicals) Health Services, Bihar, Patna, the petitioner was

         reverted to Class-IV post.

                         8. It has been further submitted by learned counsel

         for the petitioner that the order impugned has been passed

         without even going through the explanation submitted by the

         petitioner, since no consideration has been made by the

         authority concerned while reverting the petitioner from Class-III

         post to Class-IV post. Accordingly, vide Memo No. 2031 dated

         03.11.2022 issued under the signature of the Civil Surgeon-

         Cum-Chief Medical Officer, West Champaran at Bettiah, the

         order of reversion of the petitioner from Class-III post to Class-

         IV post was issued from the date of the issuance of the letter and

         the petitioner was posted in Additional Primary Health Center,

         Senuwaria, Majhaulia on a Class-IV post.

                         9. Learned counsel for the petitioner further

         submits that the order impugned has been passed on erroneous

         consideration that the petitioner has been promoted on

         compassionate ground and not by the competent authority.

         Although, the promotion has not been granted on compassionate

         ground, rather it has been granted to the petitioner in view of the
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         policy decision of the State Government to reserve 15% posts

         for grant of promotion from Class-IV employees to Class-III

         employees. It has further been contended that as per the policy

         decision of the State Government a Class-IV employee having

         intermediate/matriculation qualification is/was entitled for being

         considered under the 15% quota and since the petitioner was

         having the said qualification from the date of appointment itself,

         the appointing authority recommended the case of the petitioner

         for grant of promotion to Class-III post and there is no illegality

         in the same.

                         10. It has been contended on behalf of the learned

         counsel for the petitioner that the authority concerned while

         passing the impugned order did not give any reasoning in the

         order impugned and merely by writing that after consideration

         of the show cause submitted by the petitioner, he has come to

         the conclusion that the promotion granted to the petitioner be

         cancelled. It has further been submitted that the order impugned

         is without reasoning and which is being tried to be

         supplemented by the reasoning given in the counter affidavit

         filed on behalf of the respondent-State. Learned counsel for the

         petitioner in support thereof relies on a judgment in the case of

         Mohinder Singh Gill & Another vs The Chief Election
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         Commissioner, New Delhi & Others reported in (1978) 1 SCC

         405 wherein in paragraph no.8, the Hon’ble Supreme Court has

         been pleased to hold that:-

                                        “8. The second equally relevant matter
                                           is that when 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. We may here draw attention to
                                           the observations of Bose, J. in
                                           Gordhandas Bhanji [Commr. of
                                           Police,     Bombay     v.    Gordhandas
                                           Bhanji, 1951 SCC 1088 : AIR 1952
                                           SC 16] :
                                           “Public orders, publicly made, in
                                           exercise of a statutory authority
                                           cannot be construed in the light of
                                           explanations subsequently given by
                                           the officer making the order of what
                                           he meant, or of what was in his
                                           mind, or what he intended to do.
                                           Public      orders    made   by     public
                                           authorities are meant to have public
                                           effect and are intended to affect the
                                           actings and conduct of those to
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                                           whom they are addressed and must
                                           be     construed    objectively    with
                                           reference to the language used in the
                                           order itself.”
                                           Orders are not like old wine
                                           becoming better as they grow older.”
                         11. Per contra, the learned counsel appearing on

         behalf of the State submits that the promotion granted to the

         petitioner was not given by the competent authority since the

         Additional Director, Health Services-Cum-State Programme

         Officer (Leprosy), State Leprosy Eradication Office, Patna,

         granted promotion to the petitioner from Class-IV post to Class-

         III post beyond his jurisdiction, since vide letter no. 1060(4)

         dated 11.12.2014 of the Health Department, the appointing

         authority of the Class-III post, is Civil Surgeon-Cum-Chief-

         Medical Officer of that district and in Medical Hospital, the

         appointing authority is the Superintendent of that Medical

         Hospital. It has further been contended that with respect to the

         appointment         on     compassionate           ground   the      General

         Administration Department in Clause 9(Ka) in Notification No.

         13293      dated     05.10.1991        specifically    stated     that   after

         appointment on compassionate ground, the appointee shall not

         be again benefitted by giving promotion or by cadre transfer. It

         has further been contended that the Rules with respect to the
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         appointment of Clerk and their service condition have been laid

         down in which sub-Clause (1) of Clause-5 stipulates that 85% of

         the post of LDC shall be filled up directly on the

         recommendation of the Commission and remaining 15% post of

         LDC shall be filled up through promotion of Group-D

         employees who possess Intermediate/10+2 qualification and the

         said promotional post shall be filled up through Seniority list. It

         has further been contended that the Group-D employees shall be

         promoted on the recommendation of the Departmental

         Promotion Committee.

                         12. After having heard the learned counsel for the

         parties and after going through the documents on records, I find

         that the petitioner was appointed on the recommendation of the

         District Compassion Appointment Committee and the District

         Magistrate, West Champaran at Bettiah by following due

         procedure of law. The petitioner was recommended for being

         considered for promotion on Class-III post by the competent

         authority in view of the policy decision of the State to grant

         promotion        to     Group-D          employees   who   possessed

         Intermediate/Matriculation qualification against 15% quota

         reserved for them. During course of hearing of the present writ

         petition, a specific query was made to the learned counsel for
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         the petitioner that no document has been brought on record with

         regard to the petitioner having obtained the qualification of

         matriculation or above, since, in the counter affidavit filed on

         behalf of the respondent-State a categorical statement has been

         made in paragraph-4 that the petitioner was appointed on

         compassionate ground on Class-IV post since she was having

         the requisite qualification of ‘Madhyama’. Learned counsel for

         the petitioner handed over all the original documents including

         admit card, mark-sheet and provisional certificate issued by the

         Bihar School Examination Board to the petitioner with regard to

         her obtaining Intermediate qualification. From perusal thereof, it

         transpires that the petitioner had obtained Intermediate

         qualification in the year 2009 itself and from Annexure-5 to the

         writ petition, it appears that all the relevant documents including

         the documents mentioned above were forwarded to the

         competent authority, while recommending the case of the

         petitioner for being promoted to a Class-III post. The order of

         promotion was issued by the Civil Surgeon-Cum-Chief Medical

         Officer, West Champaran, Bettiah on the basis of the policy

         decision of the State Government and the said promotion has

         not been granted on compassionate ground as has been

         mentioned in the counter affidavit filed on behalf of the
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         respondent-State. The said promotion has been granted against

         15% quota reserved for Class-IV employees in view of the

         policy decision of the State Government dated 02.12.2013 and

         25.05.2015. It appears that the Director-In-Chief, Health

         Services while passing the impugned order contained in memo

         No. 893(11) dated 07.10.2022 was not aware of the policy

         decision of the State Government or deliberately and

         intentionally relied upon clause 2 (VI) of letter no. 1060 dated

         01.12.2014, which relates to Appointment. Further, the Director-

         in-Chief, Health Services for the reasons best known to him did

         not even consider the representation/show cause filed by the

         petitioner and passed the impugned order dated 07.10.2022 on

         erroneous ground. Further, the respondent authorities in their

         counter affidavit have stated that for promotion from Group-D

         post to Group-C post, the exercise has to be taken on the

         recommendation of the departmental promotion committee and

         relied on the notification contained in Memo no. 1060(4) dated

         01.12.2014.

                         13. It appears from Clause-15 of the notification

         contained in Memo no. 1060(4) dated 01.12.2014, that

         procedure for promotion has been given, but nowhere in the

         counter affidavit or the writ petition it has come that the said
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         procedure was followed or not. The only contention raised in the

         counter affidavit is that the same has not been given by the

         competent authority, since the Civil Surgeon-Cum-Chief

         Medical Officer, West Champaran, Bettiah was not competent to

         grant the same.

                         14. Accordingly, from the discussions made above,

         the order impugned contained in memo No. 893 (11) dated

         07.10.2022 issued under the signature of the Director-in-Chief,

         Health Services, Government of Bihar, Patna and the

         consequential order contained in Memo No. 2031 dated

         03.11.2022 issued under the signature of the Civil Surgeon-

         Cum-Chief Medical Officer, West Champaran at Bettiah are

         hereby set-aside.

                         15. The respondent-authorities are at liberty to

         verify that whether while giving promotion to the petitioner, the

         procedure mentioned in Clause-15 of letter no. 1060(4) dated

         01.12.2014 was followed or not and if they come to the

         conclusion that the same was followed then no further orders are

         required to be passed, but if it is found that the same was not

         followed then the respondent authorities by following the due

         procedure prescribed under law will proceed afresh after giving

         due notice to the petitioner. It is further clarified that since the
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                      petitioner has already discharged her duties on the promoted

                      post till issuance of the impugned order dated 03.11.2022, no

                      recovery or adverse order shall be passed against the petitioner

                      for the period till 03.11.2022.

                                      16. The writ petition is disposed of in the

                      aforementioned terms.




                                                  (Ritesh Kumar, J)
AjayMishra/-
AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          06.02.2026
Transmission Date       NA


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