1 C^ ^ 1i^/0 ^ ^7 HADHVA F'RDESH STATE ADMZN2MSTRATIVE TRIBUNAL EBIWCJPAL BEMQ-i 61 JftBALPUR rf ^ D.A^MD,, R.A.KHAN,ASED ABOUT 45 YEARS,SON OF 9HR1 AHMAD ^HAN OCCU; ASST'T' „ DRAFT51AN ,IRR £GAT i ON DEPAR'TnENT ^^CHADOl.. 1^1 N1 HATA BANOO DSV. N0..3,BILASPUR (M.P.)- . -Ver^us- I). STATE OF HADHYA PRADESH THROUBHsSECRETARV : 1RR I- 8ATI ON DEPARTMEMT,, VAL.LABH BHANAN, BI-fORAL ENS i NEER I^ CHE I F ^ATER RE BHOPAL. EXECTIVE ENBSNEER WATER RESOURCES DSP.ARTS1ENT MACHADDL3 MSNIMATA DIV.N0.3, BiLASPUR ^-^f3GJS/^ i^A^^/W'J APPLICANT ,RESPOMDENTS DEtftJLS OF PETITIDN HIGH COURT OF CHHATTISGARH : BILASPUR SINGLE BENCH :HON»BLESHRI MANINDRA MOHAN SHRIVASTAVA,J. PETITIONER RESPONDENTS Writ Petition (Sl No. 1747/2005 R. A. Khan Versus State ofM.P. (now C.G.) and others Appearance: Shri Suresh Pandey, counsel for the petitioner. Shri Arvrind Dubey, Panel Lawyer for the State. ORAL- ORDER (Passed on 22.03.2010) 1. By this petition, the petitioner has called in question the legality and validity of order dated 12.5.1997 (Annexure A-5) to the extent recovery has been ordered and seniority has been restricted. 2. Learned counsel for the petitioner at the outset submitted that the ^IIINIiNli^ relief is confined only to recoveiy part. 3. While working as Tracer, petitioner was promoted as Assistant Draftsman vide order dated 21.10.1983 (Annexure A-l). On the post of Assistant Draftsman, petitioner continuously worked from 28.10.1983 to 18.7.1987. However, later on, vide order dated 18.7.1987 (Annexure A-2), petitioner and other Assistant Draftsmen were reverted to the post of Tracer. -2- ^7 4. Aggrieved by this order, a petition was filed before the Tribunal by the petitioner and two other Draftsmen namely S.S. Nayak 85 G.P. Verma. Learned Tribunal vide its order dated 9.8.1994 (Annexure A-4) held that in so far as other two Draftsmen namely S.S. Nayak 85 G.P. Verma are concerned, their reversion was illegal, in so far as the case of the petitioner is concerned, it was found that petitioner does not possess the qualification required for promotion to the post of Assistant Draftsman on the date the selection was made. Observing that as the petitioner may have gained required experience subsequently before the date of issuance of order of reversion, it was obser^ed that it would be open to the respondents to re-examine the case and pass suitable orders keeping in view the experience actually gained by the petitioner. It was further observred that if there was a clear vacancy on the date of the order, petitioner could be reconsidered for promotion w.e.f subsequent date. 5. In compliance of the order of Tribunal, the case of the petitioner was considered and ad-hoc ser^ices on the post of Assistant Draftsman were regularized. Vide order dated 12.5.1997 (Annexure A-5), petitioner was granted benefit of regularization of promotion w.e.f. 1.1.1987, though by the said order, recovery in respect of the period during which the petitioner worked from 28.10.1983 to 31.12.1986 was also ordered. 6. Learned counsel for the petitioner submits that he was promoted on regular basis on the post ofAssistant Draftsman. Though the Tribunal recorded that he did not possess qualification for the post of Assistant Draftsman, keeping into consideration experience gained by him, directed respondents to re-examine his case. As petitioner was found -^?^:-. ^ .-y% | '.y j j •^sftt/ '"^^ -3- <^ eligible, his promotion was regularized, w.e.f. 1.1.1987. It is submitted that once the promotion was regularized and the petitioner continued to work, whatever payment has been made to him during discharge of his duties and functions of the higher post as Assistant Draftsman, could not be recovered as this would be arbitrary and unfair. 7. On the other hand, submission of learned counsel for the respondents is that in view of the fact that petitioner was promoted on the post of Assistant Draftsman, though he was not qualified, he was not entitled to salary of the higher post» even though he has worked notwithstanding subsequent regularization of his promotion w.e.f. 1.1.1987. 8. I have heard learned counsel for the parties and perused the records. 9. It is not the case of the respondents that while submitting his candidature or while considering case for promotion, there was any fraud or misrepresentation played or any misleading information submitted by the petitioner at the time of his promotion as Assistant Draftsman. Vide order dated 21.10.1983 (Annexure A-l), petitioner on the strength ofthe order ofpromotion, discharged duties and functions of the higher post which is an undisputed position. Petitioner was considered for promotion under the directions of the Tribunal and his promotion was also regularized. 10. In view of the aforesaid circumstances, in my opinion, it would be unjust to recover salary paid to the petitioner towards discharge of duties and functions of the higher post in respect of the period from 29.10.1983 to 31.12.1986. Consequently, the impugned order dated 12.5.1997 to the extent it orders recovery against the petitioner is ^'^.. .yy^ % yJs ^^ Praveen -4- ^7 hereby set aside. The sum recovered from the petitioner shall be refunded. 11. Petition is accordingly allowed in part to the extent indicated above. 12. There shall be no order as to costs. ^ Sd/- Manindra Mohan Shrivastava Jude