IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9902 of 2009 Munishwar Prasad & Anr. Versus The State Of Bihar & Ors 3/ 11/08/2011 Heard learned counsel for the petitioners and learned counsel for the State. The two petitioners are stated to have superannuated from the Cooperative Department on 30.6.1997 and 31.7.1997 respectively. They are aggrieved by the order dated 20.5.2008 directing re- fixation of their pay-scale to the 1985 level and simultaneously ordering recovery from their pension in 20 equal installments or in one lump sum subject to a maximum amount of the 60% of pension. It is submitted that the petitioners came to this Court in C.W.J.C. No.7353/98 to be considered for promotion to the super time scale in the Bihar Cooperative Service from the due date as recommended by the Bihar Public Service Commission. It was their further case that based on the recommendation of the Commission a memo. was placed before the Cabinet on 8.11.1996 for approval, but no notification for promotion was issued. The order of the Court notices that this fact was accepted in the counter affidavit. But, in view of a Circular dated 27.11.1996 it had become necessary to 2 make a fresh request for consideration of their cases for promotion. It only need be noticed that if the Bihar Public Service Commission had recommended on 3.10.1996 and Cabinet note for approval prepared on 8.11.1996 could sheer inaction of respondents be permitted and they be allowed to take advantage of their own lapse in not having issued the necessary notification till 27.11.1996 when the new Circular came into vogue. The Court remanded the matter to the respondents for re-consideration. On 13.12.2000 the petitioner No.1 was granted super time grade with effect from 1.4.1994 and petitioner No.2 from 1.7.1994. On 8.2.1999 selection grade posts were abolished with effect from 1.1.1996 and the system of need based posts for promotion came into vogue. This notification provided that if any promotion was due before 1.1.1996, but was not given, it should be given till 31.12.1995 and then terminated. The respondents then identified the need based posts on 29.4.2002. Having done so on 13.7.2002 they gave the scale and designation of Additional Registrar to petitioner in the pay-scale of Rs.14300-18300 with effect from 1.1.1996 and to petitioner No.2 as Senior Joint Registrar with effect from 1.7.1997. The matter attained finality here and was not questioned by the respondents. On 21.2.2006 3 the respondents carried out a re-structuring of the need based posts coming to a conclusion that the petitioners had been given promotion against non-existent posts. A show cause followed on 31.1.2008 whereafter the impugned order has been passed. Learned counsel for the petitioner submits that there are no allegations of any misrepresentation by the petitioners. They only obtained orders for consideration of their case from this Court. The rest was done by the respondents in their own wisdom. They cannot be permitted to keep re-opening the issue of need based posts at their pleasure especially when the petitioners accepted it on 13.7.2002, after more than six years in the year-2008. learned counsel emphasizes the miseries that shall follow if in the evening of their life the petitioners are required to make substantial refunds when pension is the only mode of their survival. Learned counsel for the State submits that such promotion if due before 1.1.1996 could be given and it shall remain operative only till 31.12.1995. No sooner that the error was detected action has been taken. The issue in the present case is not with regard to any cancellation of promotion on a need based post after 31.12.1995. What the respondents contend is 4 that the very identification of the need based posts made by them on 13.7.2002 was wrong. The Court cannot lose sight of the fact that by application of mind the respondents granted super time grade to the petitioners on 13.12.2000 with retrospective effect from the respective dates. That was revisited by the respondents on 13.7.2002. The petitioners did not question it. Matters thus attained finality inter parties. There has to be finality to government action. The respondents cannot be permitted to wake up in fits and starts and reopen settled matters especially when it pertains to superannuated employees. The Court cannot shut its eyes to the fact that the petitioners have retired long ago. Pension is their only source of income. Any reduction in the same shall visit them with grossly adverse consequences when they have structured their life on that income only now. An additional fact which this Court considers necessary to take into account is that because of the vacillating stand of the respondents merely because those who are ensconced in the safety of their salary reopen matters and again reopen matters. The petitioners are forced to contest litigation from their meager pension resources. The respondents have the luxury of fighting the litigation on the tax payers’ expense. 5 Keeping in mind the peculiar facts of the case, that there has been no misrepresentation by the petitioners, that the respondents were seeking to reopen and re-reopen matters indicating that the fault lay with them, the Court is satisfied that it shall be highly unequitable for the respondents to visit the petitioners with such consequences in their retired status. Learned counsel has relied upon (1995) Supp. 1 SCC 18 (Sahib Ram Vs. State of Haryana). In 1995 Supp. (3) SCC 600 (Union of India v. Indian Rly. SAS Staff Assn.) the Court restrained any recovery from retired employees in relevant extract at paragraph as follows:- “8. …… It is, however, made clear that the said arrears shall not be recovered from those of the employees who have already retired from service.” Before the respondents called upon the petitioners and propose to visit them with adverse consequences, there is an urgent need for them to do some self introspection first and call into question the acts of those who have created this awkward situation for the respondents to reopen and re-reopen matters generating litigations. The impugned order dated 20.5.2008 is set aside. Any recovery made is directed to be refunded 6 within a maximum period of two months from the date of receipt/production of a copy of this order. The writ application is allowed. KC ( Navin Sinha, J.)