IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11248 of 2003 RAM ASHESHAR PRADHAN S/O LATE JHORIKHI PAADHAN, R/O OF MOHALL- KAUSHAL NAGAR, Q.NO. 227, PO- GPO, PS AARDANIBAG, DISTT- PATNA--- PETITIONER Versus 1. THE STATE OF BIHAR 2. THE COMMISSIONER-CUM-SECRETARY DEPARTMENT OF MINOR IRRIGATION, BIHAR, PATNA 3. THE PLANNING COSERVATOR, TUBE WELL (MINOR IRRIGATION) BIHAR, PATNA 4. CHIEF ENIGNEER ( SOUTH) TUBLE WELL, SHEIKHPURA, PATNA 5. SUPERINTENDING ENGINEE4R, TUBE WELL CIRCLE, MITHAPUR, PATNA 6. EXECUTIVE ENGINEER, TUBE WELL DIVISION, PATNA EAST 7. THE ACCOUNTNT GENERAL (BIHAR & JHARKHAND), BIHAR, PATNA- --- ------ RESPONDENTS. ----------- 6 22.1.2009 Heard learned counsel for the petitioner and learned counsel for the State as well as learned counsel representing the Accountant General. After retirement of the petitioner on 30.9.2002 he approached the respondents to settle his retiral dues, but only provisional pension has been granted to him. Final pension could not be settled because of certain objections with regard to entitlement of the petitioner to get first and second time bound promotions on the post. Objection raised is on the ground that as the petitioner came on permanent establishment of the respondents after absorption only on 26.4.1980, the benefit of time bound promotion will accrue to him from that day onwards and his initial entry into service on the work charge establishment from 10.11.66 will have no reflection or consequence. A basic submission has been made by learned counsel for the petitioner that the respondent authorities have not bothered to have a look at their own clarification or circular issued - 2 - in this regard by the Department of Finance way back on 27.3.1987. Annexure-6 has been brought on record with supplementary affidavit in support of the submission made at the bar. Emphasis is placed in paragraph 3 (b) of the said circular which categorically lays down that the period spent by an employee in the work charge establishment shall be considered for the purpose of not only pension but even for grant of time bound promotion on the senior scale. If this position is clarified by the Department of Finance then there is no occasion why the respondents of the Irrigation Department should raise an objection after retirement of the petitioner with regard to promotion which he has earned by counting the period he had entered in service in the year 1966. Petitioner has also brought on record a communication addressed to the Accountant General which is dated 17.2.2004 and is annexure-5 to the writ application. In this communication the respondents have taken away the benefit of time bound promotion granted to him earlier and had refixed on 15.5.1991 by counting his ten years service from 26.4.1980. Thereafter since the petitioner has retired from service the benefit of second time bound promotion could not be given to him. The order also has the effect of making certain recovery from the petitioner. In the counter affidavit which has been filed on behalf of the State they have justified their action by stating that the benefit of promotion in the cadre can only be conferred upon - 3 - the petitioner once he is made permanent and number of years will have to be counted thereafter. Since the birth of the petitioner under the respondents as permanent employee was from 26.4.1980 therefore the benefit will only accrue after the said date. The Court may have considered the stand of the State in isolation but for the fact that the petitioner has brought on record the circular of the Finance Department which clarifies the issue and applies on to all. A plain reading of annexure-6 would show that the employees in the State Government are not aware of all the circulars and clarifications which are issued from time to time. On the issue whether it is negligence or mischief it can not be certified one way or the other, but the Court is in agreement with the submission of the learned counsel for the petitioner that the act of the respondents in taking away the benefit of first and second time bound promotions given to him earlier and refixing them or juggling with the dates is totally misplaced. The order dated 17.2.2004 contained in annexure-5 is quashed., The respondents are directed to fix the retiral dues and pension of the petitioner on the basis of the promotion which he had earned during the period of service which shall include the period he had entered in service on 10.11.1966. Since the petitioner has retired in the year, 2002 it is expected that the respondents will resolve the issue based on the present decision at the earliest preferably within a period of three months from the date of communication or production of a copy of this order. If - 4 - any recovery has been done the same shall be refunded in the same period. This writ application is allowed. RPS (Ajay Kumar Tripathi, J.)