IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11095 of 2003 SATYADEO SINGH son of Indrasan Singh, resident of mohalla Mithanpura, P.S. Mithanpura District Muzaffarpur. Versus 1.THE STATE OF BIHAR through the Chief Secretary, Bihar, Patna. 2.The Secretary to the Government, Finance Department, Bihar, Patna. 3.The Secretary to the Government, Water Resources Department, Sichai Bhawan, Bihar, Patna. 4.The Under Secretary to the Government, Water Resources Department, Bihar, Patna. 5.The Accountant General (A & E) II, Bihar and Jharkhand through the Senior Accounts Officer, Bihar, Patna. ----------- 4. 13/1/2010 Heard counsel for the petitioner, counsel for the State as also counsel for the Accountant General. Prayer of the petitioner in this writ application reads as follows:- “That the present writ petition is being filed before this Hon‟ble Court for issuance of an appropriate writ in the nature of certiorari/prohibition quashing the Water Resources Department notification no.4287 dated 24.5.2003 purported to have cancelled the time bound promotion allowed to the petitioner with effect from 7.7.94 as well as the letter no.372 dated 11.8.2003 of the Accountant General (A & E) II, (Respondent no.5) intimating accordingly that the benefit of time bound promotion with effect from 7.7.1994 was not payable to the petitioner and for issuance of writ in the nature of mandamus directing the respondents state to pay the promotional benefit of first time bound promotion with effect from 7.7.1994 to the petitioner.” Learned counsel for the petitioner with regard to the aforementioned prayer would submit that the petitioner during his active service was given time bound promotion of the post of Assistant Engineer w.e.f. 7.7.1994 and therefore when the same came to be 2 cancelled on 24.05.2013 much after his retirement in the year 1998, in view of an order of the Water Resources Department dated 24.5.2003, it must be held that such cancellation of promotion was impermissible, inasmuch as, not only the petitioner had retired from service after availing the benefit of such promotion but had also after receiving the payment of higher salary which could not be recovered from the petitioner. In this regard he would place reliance on the judgment of the Full Bench in the case of „Ram Binod Singh & Ors. vs. The Bihar State Electricity Board & Ors.‟ reported in 2007 (3) PLJR 398 and the judgment of the learned Single Judge in the case of „Ram Kumar Bharti @ R.K. Bharti vs. The Bihar State Electricity Board through its Chairman & Ors.‟ Reported in 2010 (1) PLJR 113. Counsel for the State, on the other hand, would submit that the petitioner as per original provisions made in the resolution of the Finance Department dated 30.12.1981 introducing the concept of time bound promotion was not entitled for any time bound promotion inasmuch as he had already earned two promotion one by way of selection grade on the post of Junior Engineer w.e.f. 1st January, 1971 and other by way of promotion of Assistant Engineer w.e.f. 1st April, 1981. Counsel therefore proceeds that once the petitioner was already having two promotions, he was not entitled to any time bound promotion and as such the petitioner having been wrongly given the benefit of such time bound promotion w.e.f. 7.7.1991 was liable for cancellation of his such promotion and refund of the excess amount. This Court would find that there are two aspects involved 3 in this writ application, namely (I) entitlement of the petitioner to which he would be reduced to on account of the impugned order of cancellation of time bound promotion and (II) recovery, if any, on account of such cancellation of order of promotion. So far question of entitlement is concerned, there would be no difficulty in holding that the petitioner having earned two promotions prior to the introduction of time bound promotion scheme was not entitled for any further promotion and to that extent resolution of the Finance Department dated 30.12.1981 and its clarification by the resolution dated 7.3.1990 was itself sufficient for the parent department of the petitioner for not allowing promotion to the petitioner or similarly situated persons. This however remains a fact that there was some scope of confusion under which the Water Resources Department as a whole had kept on giving time bound promotion to the officer/Junior Engineer who had earned promotion on the post of Assistant Engineer and for this purpose the Finance Department had to come out with specific circular dated 28.12.2002 (Annexure-B) holding and declaring that the Junior Engineers earning promotion on the post of Assistant Engineer would not be entitled for time bound promotion. In presence of Annexure-B it therefore cannot be said that entitlement of the petitioner for getting time bound promotion can still be justified. The petitioner, in fact, has also not assailed the correctness of order contained in Annexure-B dated 28.12.2002 and the impugned order is only conseq1uential order based on Annexure-B it must be held to be correct, inasmuch as, the petitioner despite service of the counter affidavit has neither chosen to controvert 4 any fact mentioned therein nor has assailed the correctness of the said order. It therefore must be held that so far cancellation of time bound promotion of the petitioner is concerned that suffers from no infirmity, inasmuch as, it is on the basis of the Government decision dated 28.12.2002 (Annexure-B) explaining the original scheme of time bound promotion in the resolution no.10770 dated 30.12.1982 that such action has been taken. It is only second aspect namely recovery which would be adversely affecting the petitioner. The petitioner had retired in the year 1998 and the clarification was given by the Finance Department on 28.12.2002, as a result whereof the impugned order dated 24.5.2003 and 11.8.2003 were passed cancelling time bound promotion of the petitioner. The petitioner therefore cannot be made to suffer if the authorities of the Finance Department and/or parent department were themselves not aware of the correct interpretation of the time bound promotion and had themselves given promotion to the petitioner without any fraud or misrepresentation on the part of the petitioner. Consequently any payment already made to the petitioner on the basis of the order of time bound promotion cannot be made subject matter of recovery. It is, however, made clear that if any amount on account of such time bound promotion was not paid to the petitioner that will now not be required to be paid because such time bound promotion has stood cancelled. At the same time, if any amount and/or monetary benefit had been given to the petitioner the same also will not be 5 recovered from the petitioner on the ground of impugned order of cancellation of time bound promotion. It is also made clear that the petitioner‟s entitlement for payment of post retirement benefit will be strictly in terms of last payable salary without the benefit of such time bound promotion and not on the basis of last salary drawn. The petitioner therefore will be paid his pension and allowances as if he was never given any time bound promotion, but if the petitioner during the period from 1998 onwards after his retirement has already been paid any higher amount of pension on his last pay that again will not be recovered from him and the petitioner‟s re-fixation of pension on account of cancellation of his time bound promotion and re- determination of his pay would be given effect prospectively w.e.f. the date of impugned order inasmuch as this court had not stayed the same. With the aforementioned observations/directions this application is disposed of. Abhay Kumar ( Mihir Kumar Jha,J )