IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2340 of 2002 SHARDA PRASAD,son of Late Kamla Prasad, R/0 Mohall-Jai Prakash Nagar(Gewal Bigha, District-Gaya………………… petitioner Versus 1.THE STATE OF BIHAR 2.The District & Sessions Judge, Gaya. 3.The Registrar, Civil Court, Gaya. 4.The Judge-in-Charge of Accounts, Civil Court, Gaya. 5.The Registrar (Administration), High Court of Judicature at Patna. 6.The Secretary, Law Department (Judicial), Bihar, Patna. 7.The Accountant General (A & E-11), Bihar, Patna. 8.The District Account Officer, Gaya. 9.The Treasury Officer, Gaya…………… respondents. ----------- For petitioner:-Mr. Mrigank Mauli, Mr.Vinay Mistry, Advocates. For Respondent No.2 to 5:-Mr.Lalit Kishore, Sr.Adv Mr.Piyush Lall, JC to Sri Lalit Kishore For Respondent No.1:-Mr.Lakmesh Marvind, JC to SC-20 For Respondent No.7:-Mr. J.P. Karn. ------------ 10/ 20-Nov-08 Heard learned counsel for the petitioner, learned counsel for the State, learned counsel appearing for Respondent Nos.2 to 4 i.e., District Judge, Gaya, The Registrar, Civil Court, Gaya, The Judge In-charge of Account, Civil Court, Gaya and the Registrar (Administration), High Court of Judicature at Patna and also learned counsel appearing for Accountant General, Bihar, Patna- Respondent No.7. Petitioner superannuated from the post of Assistant but working as Shristedar in Civil Court, Gaya on 31st January, 2000. He is 2 aggrieved by decision of the District Judge, Gaya contained in order no.107 dated 6.12.2001 whereby pay-scale of some of the retired Government servants including the petitioner were ordered to be fixed in lower scale of Rs.4000-6000 till sanction from Government of Bihar of their promotion to the scale of Rs.5000-8000. On behalf of the petitioner it has been submitted that by office order No.01 dated 20.1.2001 (Annexure-7) the District Judge-Gaya took notice of Finance Department’s Resolution No.660/F dated 8.2.1999 (Annexure-A to the counter affidavit of Respondents No.2 and 3) and also a subsequent letter of the Finance Department dated 28.9.2000 as well as instructions of the Hon’ble High Court and after identification declared 18 posts as need based posts under instructions of the Finance Department. After such declaration, by the same order 18 senior persons were promoted to the need based posts w.e.f dates given against their names in time scale of Rs.5000-8000/-. The above posts were declared to be equivalent to the post of Section Incharge or Head Clerk of Mufassil 3 Establishment. Besides granting promotion to 18 employees in service to the identified 18 need based posts, by the same order 11 persons including the petitioner were mentioned in the list of promoted/retired or dead persons w.e.f the dates shown against their names. The petitioner was shown to have been promoted w.e.f. 17.1.1997. Two other persons below him occupying Serial-10 and 11 were also shown to have been promoted w.e.f the same date. The date of promotions given to the serving 18 officials shows that 7 persons from Sl.12 to 18 have been given promotion to the need based posts from a later date. The submission of the learned counsel for the petitioner is that simply because a query made by the District Judge, Gaya through his letter dated 20.1.2001 by which order No.1/2001 was sent to the Finance Department but no reply was received, therefore the impugned order contained in Annexure-14 was passed on 6.12.2001 reducing the pay-scale of retired but promoted employees like the petitioner. It was further submitted that in fact in reply to a reminder from the District Judge dated 11.7.2001 4 the Finance Department has issued a letter dated 8.8.2001 (Annexure-15) in which attention of the District Judge was drawn to certain principles and to the fact that final responsibility of identifying the 18 need based post is that of cadre controlling officer but first paragraph of that letter clearly mentions that order No.1/2001 appeared to be in accordance with instructions and Circulars of the Finance Department. According to learned counsel for the petitioner this letter was not received in the office of District Judge, Gaya and was not acted upon leading to the impugned order dated 6.12.2001 but even after this letter became known and even after filing of the writ petition for restoration of the pay-scale of Rs.5000- 8000/, no relief has been given to the petitioner without any valid reasons. The State Government has not filed any counter affidavit and has given no assistance in this matter. However, submission of learned counsel for the State is same as those contained in Circulars of the Finance Department. On behalf of respondents No.2 to 5 5 it has been submitted that the task of identifying need based posts is a difficult one and therefore more detailed reply was required from the Finance Department and for lack of such a clear reply from that department the District Judge, Gaya has not been able to take a final decision after Annexure-14 and it could not be decided whether petitioner is entitled for being restored the pay-scale of Rs.5000-8000/- on the basis of order contained in Annexure-7. Learned counsel for the respondents No.2 to 5 also raised a plea that Annexure-7 is not very clear in stating that the promoted/retired or dead persons in the list of 11 such employees have actually been promoted to a need based post w.e.f the date mentioned against their names. According to him such promotion is not mentioned in the service book of the petitioner according to which he was given promotion only to the post of Senior Selection Grade w.e.f 17.1.1997. The Senior Selection Grade indicated in the service book of the petitioner corresponds to the promotional scale of Rs.5000- 8000/- and is w.e.f the date which is mentioned 6 in Annexure-7. On that basis as well as on a careful reading of Annexure-7 this Court finds no difficulty in holding that the District Judge, Gaya has, by order contained in Annexure- 7, identified and declared 18 need based posts and while promoting 18 persons to such posts who were still in service, he considered the rightful claims of retired or dead persons for retrospective promotion and allowed all such promotion by the same order contained in Annexure-7. From Annexure-14, the impugned order also it is clear that the scale of the petitioner was reduced not on the ground that there was any irregularity in grant of such scale to him but only because further instructions was not received from the Finance Department. From Annexure-15 it is clear that such instruction was sent by the Finance Department but not received in time. That instruction of the Finance Department does not raise any objection to the order contained in Annexure-7. Only because the response of the Finance Department is tentative in nature and not in very clear terms cannot entitle the respondents to take away the promotional scale 7 from the petitioner on the ground mentioned in Annexure-14. Hence, the impugned order contained in Annexure-14 depriving the petitioner of the promoted scale of Rs.5000-8000/- is found to be against law and therefore quashed. As a result petitioner will be entitled of all the consequential benefits and pension in the appropriate pay-scale. Such benefits should be made available to the petitioner at the earliest and in any case within four months from the date of production/communication of a copy of this order. perwez (Shiva Kirti Singh, J.)