LETTERS PATIENT APPEAL No.900 OF 2006 -------- Against the judgment and order dated 3.5.2006 passed in CWJC No.15607 of 2004. -------- 1. The State of Bihar through the Secretary-cum- Commissioner, Department of Industries, Govt. of Bihar, Vikash Bhawan, Patna 2. The Director, Handloom and Sericulture, Government of Bihar, Patna. 3. The Assistant Director, Sericulture, Bhagalpur 4. The Secretary- cum- Commissioner Finance, Govt. of Bihar, Main Secretariat, Patna ......Respondents ....... Appellants VERSUS 1. Md. Abdul Qaiyum S/o Late Md. Sirajuddin, Resident of Mohalla- Chameli Chak, P.S. Habibpur (Jagdishpur) District – Bhagalpur ..... Petitioner - Respondent ..... 1st Set 2. The Accountant General, Bihar, Patna .... Respondent - Respondent ..... 2nd Set -------- For the Appellant : Mr Sunil Kr. Karn, AC to AAG VI For the Respondent 1 : Mr Shivendra Kishore, Advocate For the Accountant General : Mr J. P. Karn, Senior Advocate ------- P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA Shiva Kirti Singh & Birendra Prasad Verma, JJ. This appeal is directed against the judgment and order dated 3.5.2006 passed by the learned single Judge whereby writ petition preferred by respondent no.1, a government servant retired from the post of Supervisor, Handloom and Sericulture Directorate of 2 Industries Department was allowed and various orders were quashed whereby benefits of first time bound promotion given to the petitioner was cancelled and his pension and gratuity were fixed in reduced scale leading to recovery of excess amounts already paid. 2. On facts, there is no dispute between the parties that the writ petitioner was given promotion from the post of Overseer to Supervisor prior to 1985 and the pay scales of Overseer and Supervisor were merged subsequently in view of recommendations of the Pay Anomaly Committee. It is also not in dispute that in Finance Department’s letter no.10770 dated 30.12.1981 there was a provision in clause 7 barring grant of first time bound promotion if the concerned employee had received benefit of higher scale on account of an earlier promotion or even merger or upgradation but such bar provided under clause 7 was revised and accordingly, Finance Department’s resolution no.4245 dated 16.7.1985 clarified that the bar under clause 7 of resolution no.10770 dated 30.12.1981 was being cancelled in respect of promotion which had been given prior to upgradation/ merger of the lower pay scale to higher pay scale. 3. In the present case, one of the main issues was whether the provisions in resolution no.4245 dated 16.7.1985 would help the case of the writ petitioner or not? The learned Writ Court examined the relevant resolutions and came to a definite finding that since the petitioner was promoted from the post of Overseer to Supervisor prior to 1985 and the pay scales of Overseer and 3 Supervisor were merged subsequently, his promotion in the past from the post of Overseer to Supervisor would not stand in the way of his entitlement for first time bound promotion. 4. On going through the provisions of the Finance Department’s resolution no.4245 of 16.7.1985 and the discussions made by the learned single Judge, we find no good reason to take a different view. The order of the Writ Court requires no interference. 5. Learned counsel for the appellants fairly accepted that a Division Bench of this Court in the case of State of Bihar v. Md. Sanaullah, reported in 2010 (2) PLJR 606, noticed the impugned judgment in this case and approved the same and on that basis the Letters Patent Appeal preferred by the State against Md. Sanaullah was dismissed. Learned counsel for the respondent no.1 placed reliance upon the aforesaid judgment of the Division Bench in the case of State of Bihar v. Sanaullah and further submitted that even if the Writ Court had not found the case of the writ petitioner to be good on merits, the decision of the respondents, who are the appellants herein, to reduce the pensionary benefits of the writ petitioner and order for recovery could not have been permitted in view of Full Bench judgment in the case of Ram Binod Singh v. Bihar State Electricity Board, reported in 2007 (3) PLJR 398. Paragraph 26 of that Full Bench judgment was relied upon by a Division Bench of this Court in the case of Mundrika Devi v. Bihar State Electricity Board, reported in 2009 (2) PLJR 16 and the law as discussed in aforesaid 4 two judgments clearly helps the case of the writ petitioner to the extent that the appellants could not have ordered for and made recovery of alleged excess money from the writ petitioner in view of the fact that the benefits were granted on the basis of interpretation of the relevant circulars and policies and in such circumstances, subsequent reconsideration and decision, even if valid, could have been applicable only prospectively and could not justify recovery of monetary benefits already paid. However, since on facts and merits, the writ petitioner is entitled to succeed, we need not dwell upon the propriety of recovery in any further details. 6. This appeal is found to be without merit. It is accordingly dismissed. There shall be no order as to costs. (Shiva Kirti Singh, J.) (Birendra Prasad Verma, J.) Patna High Court The 26th July, 2010 AFR S.Kumar