IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9308 of 2003 1.UMA KANT SHARMA, S/o Sri Bindeshari Sharma, resident of Bibhuti Nagar, P.O. Marui, P.S. Patepur, District Vaishali, at present posted as Head Clerk, Flying Squad Circle No.1, Water Resources Department, Sonchai Bhawan, Patna. 2.Chandeshwar Sharma „Rakesh‟, S/O late Alakh Narayan Sharma, resident of Mohalla K.P. Sarkar Road, Mithapur B Area, P.S. Jakkanpur, P.O. Mithapur, District Patna, at present posted as Head Clerk, Flying Squad Circle No.2, Water Resources Department, Sonchai Bhawan, Patna. Versus 1.THE STATE OF BIHAR, through its Chief Secretary, Old Secretariat Building, Patna. 2.The Commissioner-Cum-Secretary to Govt. in the Water Resources Department, Sinchai Bhawan, Patna. 3.The Under Secretary to Govt. in the Water Resources Department, Sinchai Bhawan, Patna. 4.The Suyperintending Engineer, Flying Squad Circle No.1, Sinchai Bhawan, Patna. 5.The Superintending Engineer, Flying Squad Circle No.2, Sinchai Bhawan, Patna. ----------- 4 8/1/2010 Heard Mr. Chandrashekhar, learned Senior counsel appearing on behalf of the petitioners as also learned counsel for the State. The aforesaid two petitioners have moved this Court for the following reliefs:- “That in this writ application the petitioners beseech the indulgence of this Hon‟ble Court for quashing the illegal, arbitrary and high handed order of recovery of the amount of salary paid to them consequent upon their promotion in Junior Selection Grade and Senior Selection Grade Correspondence Clerks and further prayed that their promotion to Junior Selection Grade and Senior Selection Grade making them effective for the purpose of grant of financial benefits 2 from the date they passed the Departmental Accounts Examination be held to be legal and valid prohibiting the Respondents from making any recovery from their future salary and/or post retiral benefits.” Mr. Chandrashekhar with reference to the aforementioned prayer has confined his submission by taking a plea that while the petitioners could never doubt about requirement of passing the departmental examination as a condition precedent for grant of promotion, but then in the present case the respondents seem to have misconceived notion with regard to payment of financial benefits on account of such promotion to the petitioners. In this context Mr. Chandrashekhar has invited attention of this Court towards paragraph-7 of the writ application which reads as follows:- “That it is relevant to state that the aforesaid promotions were made to the petitioners in the Junior Selection Grade and Senior Selection Grade of the time scales of pay but the financial benefit of the aforesaid 2 promotions were given to the petitioners from the date they passed the Departmental Accounts Examination. The petitioner No.1 passed the Departmental Accounts Examination on 4.11.1991 and accordingly the financial benefit was given to him from the said date. However, the petitioner no.2 passed the Departmental Accounts Examination with effect from 29.7.1996 and accordingly the financial benefits was given to him from the said date.” On the basis of the aforementioned averment Mr. 3 Chandrashekhar, especially on the basis that the same has also not been categorically controverted in paragraph 8 of the counter affidavit, he proceeds to submit that the entire action taken by the respondents also for making recovery from the salary/emoluments/retirement benefits of the petitioners, is arbitrary. This Court would find that if the petitioners have no right to work against the higher post without fulfillment of requirement of passing of the departmental examination, their order of promotion without passing the departmental examination would not have clothed them with any right. The respondents also have admitted in the counter affidavit that the financial benefits of the promotional post was extended to the petitioners from the date of passing of the departmental examination and the matter therefore remains one of the accounting. This Court however is not expected to go into the question of such accounting and therefore the respondents are hereby directed to treat the petitioner‟s promotion valid from their date of passing the departmental examination and their promotion with financial benefits would be admissible to them only from the date of passing of the departmental examination. By applying this principle the entire monetary entitlement of the petitioners should be recalculated by the concerned official respondents and if 4 any extra amount is found to have been paid to the petitioners the same would be definitely recoverable from any emoluments payable to them including from the retirement benefits, but on the contrary if any extra amount has been recovered from them the same must be refunded to him. In order to shorten this exercise in respect of two petitioners who have already retired, this Court would give leave to the petitioners to file their separate representations explaining their cases with regard to their grievance that they are not liable for any recovery and/or any other incidental issue confined to the prayer made in this writ application. If and when such separate representation would be filed by the petitioners the respondents would be under obligation to take a final decision by a speaking order within a period of six months of filing of such representation of petitioners and any payment to which the petitioners may become entitled in terms of the fresh order passed by the Respondents will also be extended to them in the next two months. With the aforementioned observations/directions this application is disposed of. Abhay Kumar (Mihir Kumar Jha, J.)