IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5758 of 1997 JAMALUDDIN KHAN, son of late Jaffar Khan, resident of Nasariganj, P.S. Nasariganj, District Rohtas … Petitioner Versus 1. THE STATE OF BIHAR through the Secretary, Water Resources Department, Sinchai Bhawan, Patna 2. The Under Secretary, Water Resources Department, Sinchai Bhawan, Patna 3. The Chief Engineer, Water Resources Department, Dehri-on-sone, Rohtas 4. The Executive Engineer, Water Resources Department, Sone Canal Modernization Division, Ramgarh Camp, Nowaon, Rohtas … Respondents ----------- For the Petitioner : Mr. R.N. Mukhopadhaya, Advocate Mr. Alok, Advocate For the State : Mr. Ranjan Kumar, Adv. A.C. to AAG-4 PRESENT HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (16.05.2011) Mihir Kumar Jha, J. Heard Mr. R.N.Mukhopadhaya, learned counsel for the petitioner and the learned counsel for the State. 2. As with regard to the following prayer made in this writ application: “1. That by this writ application the petitioner prays for a direction on the respondents to provide the petitioner benefits of first time bound promotion and second time bound promotion from the date the petitioner is so eligible and not from the date the respondents have illegally given such promotion to the petitioner and thereafter the consequential benefits of the same and to release the post retirement benefits, including arrears, after fixing 2 correctly the date of above first time bound and second time bound promotion. 2. That the petitioner further prays for a direction on the respondents against the office order dated 3.3.1997 issued by the respondent Under Secretary, Water Resources Department, by which promotion to the higher post of Head Driver, which was given as back as with effect from 1.1.1980, has been cancelled without application of mind. 3. That the petitioner also prays for a direction against the office order dated 25.4.1997 by which the earlier promotion to the post of Head Driver with effect from 1.1.1980 has been cancelled without application of mind and the petitioner has been wrongly provided Junior Selection Grade (by way of first time bound promotion) and senior selection grade (by way of second time bound promotion) from a later date, i.e. with effect from 8.9.1989 and 8.8.1992 respectively and not from the due date and thereby to direct the respondents to make necessary corrigendum and to provide the petitioner first time bound promotion and second time bound promotion from the due date i.e. after completion of 10 years of service and 25 years of service including the period spent in the work charged establishment as per the rule/ notification issued by the State Government to that effect.” Mr. Mukhopadhaya would begin his submissions that having regard to the fact that the petitioner was appointed in work charge establishment on 15.4.1961 and his services were regularized only with effect 3 from 8.9.1989, the petitioner would not be entitled for getting a promotion on the post of Head Driver w.e.f. 30.4.1986 in the period he was continuing in the work charge establishment. He would, however, submit that the promotion given to the petitioner while he was continuing in work charge establishment from the post of Driver to the Head Driver with effect from 30.4.1986 had also led to certain financial benefit but the impugned order also seeks to recover the said amount and that too after the petitioner had retired from service on 30.9.1995. He would, accordingly, submit that the petitioner would be satisfied if the decision of recovery in the impugned order dated 3.3.1997 is struck down by this Court, inasmuch as whatever excess amount was paid to the petitioner on account of promotion given to him on the post of Head Driver was definitely not based on any fraud or misrepresentation on the part of the petitioner. 3. Counsel for the State, on the other hand, has submitted that once it is clear that the petitioner was not entitled to get such promotion during the period he was working in the work charge establishment the logical outcome of cancellation of such promotion would be that the petitioner will be deemed to have been reduced to his post of Driver and accordingly, the higher pay and emolument drawn by him 4 would be refundable. 4. In the considered opinion of this Court the resolution of the State Government dated 30.12.1981 left nothing for speculation that the time bound promotion was to be given only to a person who was working in regular establishment and had not earned his promotion while continuing against a sanctioned post. In the present case when the petitioner was continuing in work charge establishment from 15.4.1961 and the services were not regularized as on 30.4.1986 he was definitely not entitled for grant of time bound promotion. To that extent the subsequent clarification brought by the Finance Department in the circular dated 27.3.1987 reading as follows:- fcgkj ljdkj foRr foHkkx Kki la[;k 3 ih0,0vkj0 01@86 [kaM 1503 fo0 iVuk] fnukad 27-3-87 fo"k;& dk;ZHkkfjr deZpkfj;ksa dks isa'ku] izoj dksfV ,oa dkycn~/k izksUufr dh lqfo/kk nsus ds fy, dk;ZHkkfjr LFkkiuk esa fcrk;h xbZ vof/k dks DokfyQkbM ihfj;M dh x.kuk djus ds laca/k esaA foRr foHkkx ds Kki la0 ih0 lh0 02&29&02@84 3058 fnukad 2210-84 ds }kjk dk;ZHkkfjr ds isa'kukfn ds lEcU/k esa ;g fu.kZ; fy;k x;k Fkk fd%& 1- ¼d½ fu;fer LFkkiuk ds fy, fy, x;s deZpkfj;ksa dks lkekU; isa'ku iznk;h lsok esa 5 o"kZ ;k dk;ZHkkfjr LFkkiuk esa fcrk;h xbZ lsokof/k nksuksa esa ls tks de gks] tksM+ nh tk;A ,slk djrs le; dk;ZHkkfjr lsok esa ftruh vof/k is'kau ;ksX; lsok,a tksM+h tk;sxh] mruh vof/k esa va'knk;h Hkfo"; fuf/k esa iznRr ljdkjh va'knku vxj dksbZ gks] dh jkf'k ljdkj dks ykSVk nsuh gksxh rFkk jkT; dks"k esa tek dj nsuh gksxhA ¼[k½ mDr dksfV ds deZpkfj;ksa dks mi;qZDr vk/kkj ij fu/kkZfjr ekfld isa'ku dh jkf'k esa 30@& :0 tksM+dj isa'ku dh jkf'k fuf'pr dh tk;xh c'krsZ og vf/kdre isa'ku iznk;h lsok ds vk/kkj ij ifjxf.kr gksus okyh isa'ku dh jkf'k ls vf/kd ugha gksA ¼x½ mi;qZDr mi dafMdk esa mYysf[kr 30@& :0 dh jkf'k isa'ku y?kqdj.k dh x.kuk esa ugha dh tk,xhA 2- foRr foHkkx ds Kki la[;k&3@ih0vkj0lh0&45&83&1560 fnukad 27-2-84 ds }kjk ;g Hkh fu.kZ; fy;k x;k Fkk fd ljdkjh lsod ds }kjk dk;ZHkkfjr LFkkiuk esa dh xbZ lsok dkycn~/k izksUufr ds fy, ifjxf.kr ugha dh tk,xhA 3- dk;ZHkkfjr deZpkfj;ksa dks isa'ku izoj dksfV ,oa dkycn~/k izksUufr dh lqfo/kk nsus ds fy, dk;ZHkkfjr LFkkiuk esa fcrk;h xbZ vof/k dks DokfyQkbM ihjh;M dh x.kuk dk fo"k; ljdkj ds fopkjk/khu Fkka vr% iw.kZ fopkjksijkUr iwoZ esa fy;s x, fu.kZ; dks la'kksf/kr djrs gq, jkT; ljdkj us fuEufyf[kr fu.kZ; fy;k gS%& 5 ¼>½ ,sls dk;ZHkkfjr deZpkjh ftudks oRrZeku vuqns'kksa ds v/khu is'kau ,oa miknku vuqekU; gksrk gS muds }kjk dk;ZHkkfjr LFkkiuk esa fcrk;h xbZ iwjh lsokof/k dks 'kkfey djrs gq, isa'ku ,oa miknku ds fy, DokfyQkbM ihjh;M dh x.kuk dks tk;xh c'krsZ ,slk djrs lq; dk;ZHkkfjr lsok ls fdruh vof/k isa'ku ;ksx; lsok,a tksM+h tk;xh mruh vof/k isa'ku ;ksX; lsok,a tksM+h tk;xh mruh vof/k esa va'knk;h Hkfo"; fuf/k esa iznRr ljdkjh va'knku vxj dksbZ gks dh jkf'k ljdkj dks ykSVk nsuh gksxh rFkk jkT; dks"k esa tek dj nsuh gksxhA ¼c½ fu;fer LFkkiuk esa vkus ds i'pkr dk;ZHkkfjr lsokof/k dks tksM+rs gq, lacaf/kr deZpkfj;ksa dks izoj dksfV ,oa dkycn~/k izksUufr dh lqfo/kk miyC/k djk;h tk; c'krsZ fd mlls fdlh Hkh fu;fer deZpkfjh dh ojh;rk dk vodze.k ugha gksrk gksA ojh; izoj dksfV ;k dkycn~/k izksUufr ds lEcU/k ea bl vkns'k ds fuxkZr gksus dh frfFk ds iwoZ dks dksbZ Hkh cdk;k vuqekU; ugha gksxk bl izlax esa iwoZ ea fuxZr lHkh vkns'k ,oa vuqns'k bl va'k rd la'kksf/kr gks tk;saxsA 4- bl vkns'k dk izHkko vkns'k fuxZr gksus dh frfFk ls gksxk** could also not give the petitioner benefit of getting retrospective time bound promotion with effect from 1.4.1981 or any date prior to his becoming a regular Government servant. 5. A bare perusal of the aforesaid circular would infact make it clear that a person working in work charge establishment after being regularized in service would be entitled for grant of either Selection Grade and/or time bound promotion by counting his previous services in the work charge establishment but that would not mean that he will be given time bound promotion with retrospective effect before the date of his regularization inasmuch as the admissibility itself for such time bound promotion will accrue only on the date his services were regularized. 6. In the present case admittedly when the services of the petitioner were regularized on 8.9.1989 he become entitled for being considered for 6 grant of time bound promotion and therefore, the respondents had correctly given him such time bound promotion with the same date i.e. 8.9.1989 by computing earlier services and finding that he had already completed 10 years of service without earning any promotion. To that extent, this Court will not find any error in the impugned order and in fact any impression of a work charge employee to get retrospective benefit of time bound promotion before the date of regularization has to be held to be wholly misconceived, inasmuch as such retrospective promotion from any date prior to regularisation would actually amount to granting promotion in the work charge establishment defeating the very object and purpose of the scheme of the Government resolution dated 30.12.1981 introducing the concept of time bound promotion. Thus, it has to be held that in terms of the Government clarificatory circular dated 27.3.1987 read with the main circular dated 30.12.1981 a person earlier working in the work charge establishment on being regularized would be entitled for time bound promotion either with effect from the same date of his regularization (in case he has completed 10 years service in work charge establishment or any future date on which he would complete total length of service of ten years. 7 7. Mr. Mukhopadhaya in fact also does not dispute the aforesaid proposition and accepts that the petitioner was correctly given time bound promotion with effect from 8.9.1989 as also the second time bound promotion with effect from 8.8.1992. He also admits that the respondents were perfectly justified in placing the petitioner in these two time bound promotional with effect from 8.9.1989 and 8.8.1992 respectively. Thus there would be no difficulty for this court in holding that when the petitioner had retired from service on 30.9.1995 his entire calculation of retirement benefit had to be made on the basis that he was given first time bound promotion on 8.9.1989 and second time bound promotion on 8.8.1992 and to that extent the respondents were also justified in recalculating the pay and emolument of the petitioner for fixing the last pay which the petitioner was entitled to draw in law on the date of his retirement i.e. 30.9.1995. 8. Mr. Mukhopadhaya, however, has a valid point that the petitioner cannot be subjected to recovery of any excess amount, inasmuch as when the petitioner despite being not eligible for grant of time bound promotion was given such time bound promotion with effect from 30.4.1986 even before regularisation of service he cannot be blamed because it is the respondents who had failed to construe the 8 true import of the resolution of the State Government dated 30.12.1981 prohibiting grant of time bound promotion to an employee working in the work charge establishment. This aspect of the matter has been settled by this Court in the case of Koshi Project Workers’ Association & ors. vs. The State of Bihar & ors., C.W.C.J.No. 2524 of 1996. Since the respondents have also not been able to point out any fraud or misrepresentation on the part of the petitioner in getting his promotion on the post of Head Driver with effect from 30.4.1986, this Court would quash paragraph No.5 of the order, contained in Annexure 2, seeking to make recovery of excess amount drawn by the petitioner on account of his promotion on the post of Head Driver or payment of salary thereafter in capacity of Head Driver. 9. It is, however, made clear that as the petitioner had retired on 30.9.1995 his last pay having been also fixed in the second time bound promotion pay scale with effect from 8.8.1992, he will be entitled for payment of his pension, gratuity, leave encashment on redetermination of last pay as per the impugned order. 10. It has to be kept in mind that this Court by an interim order dated 20.10.1997 had already restrained the authorities from making any recovery of excess amount and therefore, while disposing of this 9 writ application with the aforementioned observations the aforesaid interim order restraining recovery of salary and emolument from the petitioner is made absolute. 11. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Patna High Court Dated the 16th May 2011 A.F.R./Surendra/