IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7827 of 1997 1. Jagdish Ram, Son of late Bisheshwar Ram, Resident of Mohalla West Lohanipur, P.S. Kadamkuan, District Patna, at present posted as Clerk (Tuber Culosis Demonstration Centre, Agam Kuan, Patna-7. 2. Rajendra Prasad, Son of late Raghuni Ram, Resident of Mohalla Sheopur Tikia Toli (Mosllahpur Hat), P.O. Mahendru, P.S. Sultanganj, District Patna, at present posted as Clerk (Tuber Culosis Demonstration Centre, Agam Kuan, Patna-7. ---------- Petitioners Versus 1. The State of Bihar. 2. The Director-in-Chief, Department of Health, Govt. of Bihar, Patna. 3. Director, Health Services, Bihar, Patna. 4. Director-Tuber Culosis Demonstration Centre, Agam Kuan, Patna- 7. ------- Respondents ----------- 6 20.07.2010 Heard Mrs. M. Chatterjee, learned counsel for the petitioner and counsel for the State. The prayer of the petitioner in this writ application read as follows:- “1(i) That an appropriate writ may be issued commanding upon the respondents authorities neither to deduct any amount from the salary of the petitioners nor to recover any amount from the salary of the petitioner or any dues payable to them in future. (ii) That an appropriate writ may be issued commanding upon the respondent authority to pay 2 the petitioners their salary in the pay scale of Rs. 1400- 2300 which they are drawing since 1.4.1981 instead of putting them in lower pay scale of Rs. 1200-1800.” Mrs. Chatterjee, learned counsel for the petitioners would inform this Court that the petitioner no.1 is dead and she would not like to press his application. That being so, the application of petitioner no.1 is hereby dismissed on the ground that it has already abated on the ground of his death and non-substitution by his any legal heirs. As with regard to the grievance of petitioner no.2, that though he was given promotion in the higher pay scale of Rs. 680- 960/- with effect from 1.12.1981 under the order of Mr. A.A. Mallick, the Director, T.B.D. Centre, Patna, the authority subsequently without even cancelling such order had started making recovery of the amount already paid to him. It has to be noted that this Court by an interim order dated 9.9.1997 had restrained the respondents from making any 3 recovery of any amount from the salary of the petitioners. From reading of the show-cause notice dated 17.7.1997, it would appear that in course of audit verification, it came to the notice of the authorities that the petitioner was given promotion by Mr. Mallick by an order dated 31.7.1985 even when he had not passed the departmental examination in terms of Rule 157 of the Board’s Miscellaneous Rules. The petitioner, in fact, was directed to produce his result-sheet showing to have passed Hindi Noting and Drafting Examination as also the Accounts Examination. The petitioner had failed to produce such results and had taken a plea in the show-cause reply filed by him on 23.7.1997 that the Finance Department vide its circular dated 12.8.1982, again reiterated by another circular dated 21.6.1993 had relaxed the provision for grant of promotion even without passing the departmental examination. Such explanation of the petitioner was not accepted and the authority having promotion of the petitioner 4 against the provisions of statutory rules had started making deduction, whereafter such action was questioned in this writ petition and an interim order was passed by this Court on 9.9.1997 restraining the Respondents from making any deduction till the disposal of this case. Mrs. Chaterjee in fact would submit that the order of promotion of the petitioner though passed in issued in the year 1985 by Mr. Mallick was valid and legal and could not be held to be bad in any manner, inasmuch as, the petitioner was given promotion with effect from 1.12.1981, which is covered by the period of 1.5.1980 to 29.3.1982 as excluded in the judgment of the Full Bench in the case of Maheshwar Prasad Singh Vs. The State of Bihar & Ors. reported in 2000(4)PLJR 263. Mrs. Chaterjee has further submitted that only because the order was passed by a maligned officer like Mr. Mallick that would not mean that everything done by Mr. Mallik was bad and illegal. Counsel for the State on the other hand would submit that once it is admitted 5 that the petitioner had not passed the departmental examination, he must be deemed to have been disqualified for earning promotion in terms of Rule 157 of the Board’s Miscellaneous Rules and therefore, the possible explanation of the amendment made by the executive instruction by correction slip no. 30 dated 29.3.82 would not govern such cases where the order was passed and issued subsequently. In other words, he would submit that if any order was issued in between 1.5.1980 to 29.3.1982, such promotion even if given to a person without passing a departmental examination could be saved but if any order was issued in the year 1985 as is the case of the petitioner though with retrospective from 20.12.1981, that could not be held to be valid. In the opinion of this Court, Counsel for the State seems to be correct, inasmuch as, paragraph nos. 13 to 17 of the Full Bench Judgment in the case of Maheshwar Prasad Singh (supra) reads as follows:- “13. On the basis of the above discussion I have no hesitation in holding that the State Government was fully competent to amend rule 6 157(3)(J) of the Board’s Miscellaneous Rules by executive instructions and the amendment made vide correction slip no. 30 dated 29.3.82 was a valid amendment. Thus, clerks were required to pass the final examination in Accounts as a condition for promotion to the selection grades after 29.3.82. 14. The above discussion, however, covers the period between 29.3.82 and 29.4.85. So far as the period between 1.5.80 and 29.3.82 is concerned, I am inclined to agree with the petitioners that after amalgamation of the posts of L.D. and U.D. clerks, in the absence of any provision requiring the clerks to pass Accounts examination for promotion to selection grade, and the erstwhile provision having become redundant or otiose, the promotion could not be denied to them on account of non-passing of the accounts examination during that period. The amendment dated 29.3.82 was result of administrative instruction and could not have any retrospective effect. To that extent, I would also endorse the decision of this Court in Shamsuddin’s case. 15. As regards the period from 29.4.85; counsel for the petitioners fairly agreed that the amendment having been brought under article 309 of the Constitution, the statutory 7 nature of which cannot be doubted, the clerks could not be promoted to the selection grade posts without passing the Accounts examination. In view of the fair stand of the counsel for the petitioners it is not necessary to discuss the case with respect to the period from 29.4.85 onwards. 16. The result of the above discussion is that the clerks of the Muffasil offices could/can not be promoted to the selection grade posts without passing final examination in Accounts except during the period between 1.5.80 and 29.3.82. Any promotion due to the clerks during that period, thus, cannot be denied on the ground that they had not passed the said examination. 17. As noted above, during the pendency of CWJC Nos. 2995/90 and 8347/90 an order was issued with respect to 82 persons on 17.8.82 cancelling their promotion to selection grade posts and/or shifting the effective date of such promotion from the date of passing the Accounts examination, against which the other writ petitions i.e. C.W.J.C. Nos. 11167/92, 1556/93 and 7521/93 have been filed. As the promotion to selection grades has been cancelled on the ground of non-passing the Accounts examination or the dates of their promotion have been shifted with effect from the date 8 of passing the Accounts examination, as the case may be, in view of my conclusions, the impugned order dated 17.8.82 cannot be said to be illegal. However, if such cancellation of shifting relates to the period between 1.5.80 and 29.3.82, to that extent the order may require correction/modification of the order dated 17.8.92 in the light of this judgment.” (underlining for emphasis) The aforesaid ratio read together with the facts of this case would only indicate the possible exemption from appearing in the departmental examination was only for a restricted period i.e. 1.5.1980 to 29.3.1982 and since the promotion of the petitioner no. 2 was given by an order dated 31.7.1985, though w.e.f. 1.12.1981 the same could not be saved by the judgment of Full Bench. Nonetheless, this aspect of the matter has to be re-examined in view of the fact that there is no clear indication in the counter affidavit with regard to the date of entitlement of promotion of the petitioner no. 2 nor there is also an indication with regard to date of passing of the departmental examination by the petitioner subsequently. 9 Mrs. Chaterjee in fact would only submit that the petitioner no. 2 had subsequently passed the departmental examination and therefore, even if the promotion given by Mr. Mallick is found to be bad, he would still be qualified to get the same from a future date prior to his retirement. The submission of the learned counsel for the State here must be noted that there is no averment of the petitioner in any of the affidavit that he has already passed the departmental examination. For considering all these aspects, this Court would remit the matter back to the Director-in-chief of the Health Services who would now examine the case of the petitioner no.2 only in the light of the judgment of this Court in the case of Maheshwar Prasad Singh (supra) as also the facts of the case of the petitioner no. 2. If upon such consideration, it is found that the petitioner actually was not entitled to get promotion under the order of Mr. Mallick and was wrongly given such promotion but later on became entitled for such promotion after 10 passing of the departmental examination, the date of promotion of the petitioner shall be shifted from 1.12.1981 to any subsequent date on which his immediate junior was given was such promotion after passing the departmental examination of the petitioner inasmuch as any order of promotion to the petitioner no. 2 must fulfil and stand to the scrutiny of Rule 157 of the Bihar Board Miscellaneous Rules. Before parting with, this Court, however, must note an important grievance of the petitioner no.2 as with regard to his being subjected to recovery despite stay order passed by this Court on 9.9.1997. Since this Court is not aware as to in which circumstance the order dated 7.3.2007 in CWJC No. 1732 of 2006 was sought to be implemented by superceding the interim order dated 9.9.1997 passed in this case, all that this court would give liberty to the Director-in- chief of the Health Services to look into this aspect of the matter as to whether recovery from the petitioner no.2 despite an order of stay was permissible but if there would be no such general order of this court 11 and the petitioner’s promotion w.e.f. 1.12.1981 also is held to be justified by him, he will direct for refund of the amount or making suitable adjustment of the amount. In order to give immediate effect to this order, the petitioner will have the liberty to approach the Director-in-Chief of the Health Department by filing a compact representation along with relevant documents as also enclosing a copy of this order which must be disposed of by a speaking order within a period of six months from the date of filing of the aforesaid representation along with a copy of this order. With the aforesaid observations and directions this writ application is disposed of. Rsh (Mihir Kumar Jha, J.)