IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No. 10510 of 2011 Ram Ashish Paswan S/O Late Dhuri Paswan R/O Mohalla-Yarpur, Shivajee Path Qu.No. W 1 B-3, PS.-Gardanibagh, Distt.-Patna …………………. Petitioner Versus 1. The State Of Bihar Through Chief Engineer, Water Resources, Department Govt. Of Bihar Patna 2. The Chief Engineer, Water Resource Department Govt. Of Bihar Patna 3. The Superintending Engineer (Rupankan Anchal & Monitoring Anchal) Water Resource Department Govt. Of Bihar Patna 4. The Executive Engineer, Water Resource Department, Govt. Of Bihar Patna ……………….. Respondents ---------------------------------- For the Petitioner: Alka Verma, Advocate Mr. Dharmendra Paswan, Advocate For the State: Mr. Shashi Bhushan Kumar, SC-7 *********************** 04. 14.11.2011 Annexure- 6 dated 08.06.2011, issued by the Chief Engineer, Water Resources Department, Government of Bihar, Patna is under challenge in the present Writ Application. By virtue of this Order, the authorities have decided to take away the benefit of first time-bound-promotion as well as the benefit of first and second A.C.P., which was granted to the petitioner over the period of time by the respondents by various notifications. Time-bound-promotion was given to the petitioner way back in the year 1989 after having completed 10 years of service. The benefit to ACP also accrued to him despite the petitioner not having passed the departmental examination, which is supposed to be a pre-requisite for such a benefit before it accrue to an employee. Some dispute persisted between the stand taken by the 2 petitioner as well as the State whether the petitioner came to be appointed on the post of a Lower Division Clerk, though his initial engagement was on the post of Peon or it was a case of promotion. Petitioner’s stand was that it was a case of fresh appointment and not a case of promotion. This necessitated a direction upon the State to produce the Service-Book of the petitioner in original, which has now been verified by the Court. It is evident now that the Executive Engineer, Punpun Flood Water Protection Division had recorded in his own pen and signature the factum of promotion granted to the petitioner on the post of Lower Division Clerk, giving him a pay-scale of Rs. 220-315/-. The question of granting time-bound-promotion in the present case, therefore, will have to be seen in the light of unimpeachable evidence that petitioner was a beneficiary of an order of promotion granted to him to a next higher scale and post. If he had been given the benefit of substantive promotion then obviously there was a clear omission on the part of the respondents to confer benefit of time-bound-promotion upon him on completion of 10 years of service. The decision, therefore, of the respondents to undo that benefit cannot be said to be unwarranted. During the course of arguments, learned counsel representing the petitioner informs the Court that the petitioner has now been given the benefit of the first, second and third ACP, which is under the modified scheme and this relates to 3 the date when the petitioner had been granted exemption from passing of the departmental examination. The benefit of such kind always correlates to the date of grant of exemption and not from an earlier date. Since the petitioner is willing to accept that position, in view of the subsequent notification extending the benefit of modified ACP Scheme it no longer remains a bone of contention. The only other issue therefore left to be adjudicated is whether the recovery, which is sought to be made now after many a decades because of the decision contained in Annexure- 6 is required to be upheld or interfered with. Learned counsel for the petitioner relies on a series of decision, not only passed by this Court, but even by the Apex Court. One of such decision is a recent decision rendered in the case of 2009 AIR SCW 1871 (Syed Abdul Qadir & Ors. Versus State of Bihar & Ors.). Since it is not the case of the State that the petitioner managed to obtain the benefit of such time-bound-promotion or other promotions on the basis of any misrepresentation or fraud played by him, but he was beneficiary of a decision taken by the respondents and that too more than two decades ago, it would be inequitable now to allow the respondents to make recoveries even it may be in installments at the fag end of his service, since the petitioner is slated to retire in January, 2012. Keeping the legal position with regard to recovery in mind the decision to effect recovery therefore is quashed. 4 Respondents are directed that in case any recovery has already been made from the petitioner pursuant to Annexure- 6, they have an obligation to refund the same to the petitioner forthwith. So far rest of the decision is concerned, the issue will be governed by things as they stand now in the light of the new decision to grant benefit to the petitioner. His retiral dues etc. will be worked out on the pay-scale to which he is now entitled due to re-fixation and the new decision. Writ is allowed to the extent indicated above. SKM (Ajay Kumar Tripathi, J.)