IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.3541 OF 2007 KHURSIDA BEGUM, W/O LATE MAKSOOD ALAM, R/O VILLAGE GARRI, P.S. JALE, DISTRICT DARBHANGA. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR. 2.THE SECRETARY, PRIMARY AND ADULT EDUCATION, DEPARTMENT, BIHAR PATNA. 3.THE DIRECTOR, PRIMARY EDUCATION, BIHAR, PATNA. 4.THE DISTRICT MAGISTRATE, KISHANGANJ, BIHAR. 5.THE DISTRICT SUPERINTENDENT OF EDUCATION CUM SUB DIVISIONAL EDUCATION OFFICER, KISHANGANJ. 6.THE DISTRICT EDUCATION OFFICER, PURNEA. 7.THE REGIONAL DEPUTY DIRECTOR OF EDUCATION, PURNEA, SUB DIVISION, PURNEA. 8.DISTRICT EDUCATION ESTABLISHMENT COMMITTEE THROUGH DISTRICT SUPERINTENDENT OF EDUCATION CUM SUB DIVISIONAL EDUCATION OFFICER, KISHANGANJ. ………………………RESPONDENTS. ----------- 07/ 07.09.2011 Heard counsel for the parties. Learned Counsel for the petitioner has submitted that after the death of Maksood Alam the original petitioner, the real concern of his widow, the substituted petitioner is that she should be paid the balance amount of retirement benefits to which her husband was entitled after his superannuation on 31.08.2002. This court on earlier occasion had directed the respondents to file their counter affidavit and the District 2 Programme Officer, Kishanganj to also remain personally present to explain the reasons for non payment of pension and other retirement benefits to the deceased original petitioner as also to the widow, substituted petitioner. The District Programme Officer, Kishanganj has appeared in person and has also filed his supplementary counter affidavit, wherein, it has been explained that after retirement of the original petitioner on 31.08.2002, the provisional Gratuity, provisional pension and amount of Group Insurance was already paid and even the amount of G.P.F i.e. Rs. 2,94,931/- has already been paid. It has also been stated that the provisional pension of the petitioner was also calculated and paid from the date of death of original petitioner i.e. from 03.01.2011 by treating the average pay of the original petitioner at Rs. 8460/-. It has also been clarified that after the death of original petitioner, provisional family pension has also been paid to the widow of the original petitioner till the 3 month of June-2011. Counsel for the petitioner has also submitted that the original petitioner having retired in the year 2002 could not have been subjected to order of cancellation of his earlier promotions given in 1987, 1988 and 1989 by the impugned order dated 20.7.2004 and therefore, whatever amount has been paid on provisional basis has to be recalculated and paid now to the widow, the substituted petitioner, on the basis of the last salary drawn by the original petitioner as on the date of his retirement on 31.08.2002. This Court would find it difficult to allow such prayer, inasmuch as, the promotion given to the original petitioner was cancelled by a reasoned order contained in Annexure-1 dated 20.07.2004 which was challenged in this writ application after a delay of almost three years by filing this writ application on 20.03.2007. Moreover from the reading of impugned order it is also clear that such an order was passed not only after giving 4 show cause notice to the original petitioner but also after considering the reply filed by him. In that view of the matter, the impugned order contained in Annexure-11 cannot be interfered with on the ground of violation of the principles of natural justice. This Court however has also gone into the aspect of entitlement of original petitioner who was given three promotions i.e. I.A trained scale in the year 1987 and B.A trained scale of pay in the year 1988 and promotion on the post of Headmaster in the year 1989. As per the prevalent instructions regarding promotion as contained in Circular dated 18.12.1984 a minimum space of seven years was required for getting promotion in one scale to another. It therefore, becomes clear that the three promotions given to the original petitioner in the year 1987, 1988 and 1989 being contrary to the existing Rules were not sustainable. Such anomaly in the promotion of original petitioner becomes more clear in view of a direction issued by this Court 5 for drawing a fresh gradation list in the judgment of the Full Bench in the case of Ram Nath Prasad Singh Vs. The State of Bihar & Ors, reported in 2009(3)PLJR 384 on the position as was existing on 1.1.1986. It has to be also kept in mind that under 1993 Rules the post of I.A. Trained was abolished and merged with matric trained post with a provision for a direct promotion on the post of teacher in B.A./B.Sc. trained pay scale. As a matter of fact in such gradation list prepared in terms of the direction of Full Bench the original petitioner had been shown at serial no. 54 and persons placed above him upto serial no. 53 were yet to be given promotion in the B.A trained scale of pay and/or Headmaster. Thus the original petitioner could not have been allowed to retain his illegal out of turn promotion in I.A. and B.A. trained pay scale. It is thus clear that the original petitioner's promotion given by the then District Superintendent of Education was wholly illegal and was correctly cancelled by the impugned order contained in Annexure-11. 6 The cancellation of such order of promotion could have two consequences namely recovery of amount from the payables to the original petitioner and/or his widow and re-fixation of pay on the original post from which the original petitioner wrongly been given such promotion I.A. and B.A. trained pay scale in the year 1988 and 1989 respectively. In that view of the matter, while this Court would hold the original petitioner to be entitled to draw his salary and emoluments till the date of his retirement only in the Matric trained pay scale, but as there was no fraud or mis-representation on the part of the original petitioner in getting such promotion in I.A. and B.A. trained pay scale though he was ineligible for such promotion, this Court would restrain the respondents from making recovery of any amount already paid to the original petitioner on account of such promotion and to that extent the impugned order dated 20.7.2004 shall stood modified. The respondent District Programme Officer, Kishanganj will therefore, 7 accordingly recalculate all the retirement benefits of the petitioner on the basis of the last salary to which he was entitled in the matric trained scale of pay and on that basis would finalize the payment of all amount of retirement benefit of the original petitioner and would also make the payment of the balance amount after deducting the amount already paid. The District Programme Officer, Kishanganj shall also additionally inform the widow of the original petitioner the amount of family pension and the payment made to her after death of her husband dated 03.01.2011. The aforesaid exercise of paying entire amount of retirement benefit to the petitioner must be completed within a period of four months from the date of receipt/production of a copy of this order. It is again made clear that there would be no recovery from the petitioner either on the head of salary or on the head of retirement benefit already paid to the original petitioner in his lifetime. Before parting with it is also 8 observed that if any person junior to the original petitioner on the basis of the newly drawn gradation list in terms of the directions given by the judgment of full bench in the case of Ram Nath Prasad Singh is given promotion on the post of teacher in B.A. trained pay scale and/or Headmaster with retrospective effect the Respondents would be under obligation to also consider and notify the promotion of the original petitioner with effect from the same date and also extend same financial benefits as paid to the junior of the original petitioner. With the aforementioned observation and direction, this application is disposed of. Ranjan (Mihir Kumar Jha, J.)