IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9126 of 2005 RAMDEO RAM Versus THE STATE OF BIHAR & ORS With CWJC No.4258 of 2002 RAMDEO RAM Versus THE STATE OF BIHAR & ORS I.A. No.4613 of 2008 in CWJC No.9126/2005 5. 27.8.2008 The interlocutory application has been filed for amendment of the writ petition by adding the relief of quashing the office order issued vide Memo No.2191 dated 19.9.2002 by the District Superintendent of Education, East Champaran at Motihari ( Respondent No.3) as contained in Annexure A to the counter- affidavit, by which the first time bound promotion granted to the petitioner has been cancelled and the order for recovery of the excess amount paid to him has been passed and for consequential relief. It is submitted by learned counsel for the petitioner that he learnt about the said order for the first time when a copy of the counter affidavit was served upon him, since earlier no copy of the said order was ever served upon the petitioner. In the facts and circumstances of the case, the prayer for amendment is allowed. I.A. No.4613 of 2008 is, accordingly, disposed of. Heard learned counsel for the petitioner in both the cases and learned counsels for the State- respondents. In view of the averments made in the pleadings of the parties, at the stage of final hearing, learned counsel for the petitioner 2 confines his prayer to the challenge of the order dated 19.9.2002, by which the recovery of excess payment has been ordered and for refund of the amounts recovered pursuant thereto from the retrial dues of the petitioner and also the further prayer that in terms of the Government Circular No.920 dated 6.3.1990, the first time bound promotion should be granted to the petitioner with effect from 1.4.1990 and the consequential payment should be made accordingly. In C.W.J.C. No. 4258 of 2002, the prayer made was for grant of annual increments with effect from 1.4.1993 and payment of arrears thereof. In the counter affidavit, the State-respondents have already accepted the fact that the petitioner is entitled to grant of annual increments. Hence, the prayer is confined to the making of actual payment of the arrears arising out of the said grant of annual increments. The further prayer of the learned counsel for the petitioner is that pursuant to the grant of the aforesaid reliefs, the authorities should be directed to revise the pension and other retiral benefits of the petitioner consequent upon the grant of increments and the first time bound promotion from 1.4.1990. So far as the grant of first time bound promotion is concerned, the sheet-anchor of the arguments of learned counsel for the petitioner is the Finance Department’s Circular No.920 dated 6.3.1990 (Annexure-2) in paragraph no.3 of which it has been laid down that where the employee has been wrongly granted Ist/2nd time bound promotion after 10/25 years of service and after obtaining the approval of the Finance Department all the formalities have been completed then 3 in such cases, the excess payment made shall not be recovered. But if on a re-consideration of the matter, it is found that in the new cadre the petitioner has not completed 10/25 years of service from the date of his appointment then the benefit of such promotion shall be stopped but on completion of 10/25 years of service in the new cadre, the benefit of time bound promotion should be given. It is stated by learned counsel for the petitioner that the petitioner, who was appointed as Assistant teacher on 12.12.1964, was granted Middle trained scale with effect from 8.4.1972 and subsequently, he had passed the Madhyama examination and was, accordingly, granted the scale of Matric trained with effect from 1.4.1980. Thereafter, he was granted the first time bound promotion in the said scale with effect from 1.4.1981.It is also pointed out that in paragraph no.10 of the writ petition, specific averments were made that the first time bound promotion granted to the petitioner was duly approved by the Finance Department and the petitioner had been receiving his salary so fixed after grant of the first time bound promotion. Learned counsel points out that the said fact has not been denied either in the counter affidavit or in the supplementary counter affidavit filed on behalf of the State- respondents.In that view of the matter, it is contended that the case of the petitioner is squarely covered by paragraph no.3 of the said Circular No.920 dated 6.3.1990 of the Finance Department and it is not open to the authorities to make recovery of the amount paid in excess, even if the said stand of the respondents regarding wrong grant of first time bound promotion is 4 accepted. Learned counsel for the State is unable to meet the said contention raised on behalf of the petitioner, since the fact of approval by the Finance Department has not been denied in the counter affidavit filed on behalf of the State- respondents. In the aforesaid circumstances, this Court is of the view that the case of the petitioner is squarely covered by Circular No.920 dated 6.3.1990 of the Finance Department and no recovery could have been made by the respondents as has been sought to be done by the impugned order dated 19.9.2002 ( Annexure-A to the counter affidavit) passed by the District Superintendent of Education, East Champaran. The said order, in so far as the direction for recovery of the excess amount on the basis of wrong grant of first time bound promotion with effect from 1.4.1981 is concerned, is quashed. The authorities are, accordingly, directed to refund the amounts wrongly recovered from the retiral dues and other benefits of the petitioner. In terms of the said Circular No.920 dated 6.3.1990 of the Finance Department, the petitioner would also be entitled to the first time bound promotion in the Matric trained scale with effect from 1.4.1990. The respondents are, accordingly, directed to ensure that the payment of arrears due to the petitioner on account of such time bound promotion is made to him, for which he is entitled with effect from 1.4.1990. So far as C.W.J.C. No.4258/2002 is concerned, since the respondents have themselves conceded the fact that only on account of 5 non- availability of the Service Book of the petitioner, the annual increments from 1.4.1993 could not be granted, they are directed to ensure that the financial benefits of the said increments are paid to the petitioner. In view of what has been decided above, the respondents are also directed to revise the pension and other retiral benefits of the petitioner after giving him benefit of first time bound promotion with effect from 1.4.1990 as also the increments with effect from 1.4.1993, and further pay the difference on account of such revision. Both the writ applications are, accordingly, allowed with the aforesaid directions. Let the aforesaid benefits be granted to the petitioner as well as the final payments made within a period of four months from today. VPS ( Ramesh Kumar Datta,J.)