IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1084 of 2007 MUNISHWAR PANDEY SON OF LATE JAGDEO PANDEY RESIDNET OF VILLAGE BAHUARA, P.S. MANPUR, DISTRICT NALANDAT AT PRESENT CORRESPOONDENCE CLERK, IRRIGATIN DIVISION, BHAGALPUR. Versus 1. THE STATE OF BIHAR THROUGH COMMISSIONER CUM SECRETARY WATER RESOURCES DEPARTMENT, BIHAR, PATNA. 2. THE ENGINEER IN CHIEF, WATER RESOURCES DEPARTMENT, BIHAR, PATNA. 3. CHIEF ENGINEER, WATER RESOURCES DEPARTMENT, BHAGALPUR 4. EXECUTIVE ENGINEER, IRRIGATION DIVISION, BHAGALPUR. 5. SUPERINTENDING ENGINEER, IRRIGATION CIRCLE, BHAGALPUR. ----------- For the Petitioner :- Mr. Tara Nath Jha. For the State :- Mr. Nirmal Kumar, G. P. IV & Mr. Vishwambhar Prasad, A.C. to G.P. IV ------ 6 31/08/2010 Issuance of annexure-6 dated 23.09.2005 by the respondents has brought the petitioner before this Court because it adversely affects him in the manner that the benefit of promotion given to the petitioner many many years ago, both of the substantive kind as well as time bound promotion, is sought to be taken away by the said impugned order. Petitioner wants quashing of the order in the present writ application. After the order contained in annexure-6 came to - 2 - be issued a follow up action has also been taken which is the order of recovery fixing instalments from the month of December 2006 at the rate of Rs.5000/- per month till June, 2007 as well as deduction from the gratuity and other retiral dues as would be evident from reading of annexure-7. This follow up order is also under challenge in the present writ application. Petitioner had filed this writ application on 25.01.2007 when he came to learn about the said orders as his retirement was looming large. Petitioner retired on 30.06.2007 after having worked in various capacities with the respondents which would be evident from the narration in the rest of the order. According to the petitioner he was appointed as a Peon in the regular establishment by the Executive Engineer, Water Course Construction Division at Mokamah. Letter of appointment is dated 21.11.1969. Petitioner joined the post on 6.1.1970. In the year 1981, to be precise on 10.11.1981, an order under the signature of the Chief Engineer, (Irrigation) contained in annexure- 1 came to be issued. By the said order petitioner along with some other persons were appointed or promoted to - 3 - the post of Correspondence Clerk. This appointment was made for a period of six months but there is evidence to show from annexure-9 that this period was extended. Petitioner along with others continued to work on the post of Correspondence Clerk. It is also not disputed that the petitioner was appointed on the post of Correspondence Clerk in a substantive capacity from 10.11.1981 i.e. the date on which annexure-1 was issued. Petitioner has brought annexure-2 to show that the respondent authorities in their own wisdom decided to shift the date of promotion of the petitioner from 10.11.1981 to 1.4.1979. Such a decision taken by the Chief Engineer (Irrigation) is dated 1.8.1984. Based on the shifting of the date of promotion, petitioner was also conferred benefit of time bound promotion. As is the case, petitioner worked in that capacity till he ultimately superannuated on 30.06.2007. But just before superannuation of the petitioner, he was issued a show cause asking him to justify his promotion on the post of Correspondence Clerk with effect from 1.4.1979 and the benefit of time bound promotion on the said post after calculating ten years - 4 - from 1.4.1979 as well as grant of that benefit despite the petitioner not having passed his departmental examination in Accounts. Petitioner is supposed to have passed the said examination only in the year 1999. Not being satisfied with the explanation offered by the petitioner as to the circumstance under which the benefit was given to him, the impugned order contained in annexure-6 and the consequential order of recovery contained in annexure-7 came to be passed. It is in this background that the writ application was filed and is being considered now by this Court. Primary submission made on behalf of the petitioner is that the benefit of promotion is sought to be taken away from him after almost 26 years of having rendered service in that capacity. The effect of taking away the benefit of promotion is a kind of demotion in rank which according to the petitioner is a punishment and the same cannot be imposed in absence of major departmental proceeding initiated against him. It is also his stand that the benefits were conferred upon him by the State and the petitioner had no role to play in begetting that benefit. In absence of any fraud or - 5 - misrepresentation having been demonstrated or pleaded by the respondents, the benefits cannot be undone, after so many years. It is also his contention that passing of the departmental examination for the purposes of grant of time bound promotion was not a must or was not considered to be a must as held in several judicial orders of this Court in this regard. Even otherwise, the respondents themselves have accepted that petitioner had ultimately passed the departmental examination, may be not at the time when the time bound promotion was given to him. No doubt, there are notifications to show that the petitioner had been given the benefit on both counts by the Chief Engineer at the relevant time, may be, after some kind of concerted decision taken in this regard. Whether it was on the recommendation of the establishment committee or not cannot be categorically recorded or held in absence of any clear evidence on record except for the assertion made by the petitioner in the writ application. These promotion orders, therefore, are not an issue in that sense. Coming to the other aspect of the submission - 6 - made by the learned counsel representing the petitioner that the impugned order contained in annexures- 6 & 7 have the effect of demotion and, therefore, a departmental enquiry was necessitated, this Court has serious reservation in accepting such a contention. The orders which have come to be passed does not have the effect of demotion of any kind so far as the petitioner’s claim to the post is concerned but it surely causes monetary loss, which cannot be said to be demotion in rank. To that extent this submission is fit to be rejected. Stand of the respondent State is that the decision has been taken in light of the reflections from the service book of the petitioner. Petitioner cannot deny that he was still working on the post of Peon when the benefit of promotion on the post of Correspondence Clerk accrued to him on 10.11.1981. Even for the sake of argument if it was a temporary order, there is something on record to show that this arrangement was continued and the petitioner came to be appointed in a substantive capacity on the post of correspondence Clerk from 10.11.1981. There is no dispute with regard to the entitlement of the petitioner from 10.11.1981 but there is certain un- - 7 - explained area as to under what circumstances this promotion was shifted back to 1.4.1979 under the signature of the Chief Engineer, as would be evident from annexure-2. From the service book of the petitioner it is evident that the petitioner was still working as a Peon in the year 1979 or atleast till 9.11.1981when annexure-1 came to be issued. Pushing the date back to 1.4.1979, therefore, was an unfair advantage given to the petitioner for un-explained reasons. Petitioner has pleaded that this was done because he was working as a Correspondence Clerk or atleast work was being taken from him and that was the circumstance under which the Chief Engineer decided to give the benefit from 1.4.1979 even though petitioner came to be appointed on the post of Correspondence Clerk on 10.11.1981. The explanation offered by the petitioner does not satisfy this Court because an order of promotion cannot be conferred upon him even without being substantively appointed on that post. Even if, for the sake of argument, it is accepted that the work was being taken from the petitioner as a Correspondence Clerk from - 8 - 1.4.1979, then maximum the petitioner could have claimed, if at all, was benefit of higher pay for higher responsibility. It would be stretching the logic a bit too much that the date of promotion itself would be shifted to a date when admittedly the petitioner was still holding the post of Peon. Shifting the date of promotion to 1.4.1979, therefore, seems to be irregular, if not illegal. Petitioner would be entitled to the benefit of promotion only from 10.11.1981 and the order contained in annexure-6 would be deemed to be modified to that extent. Other aspect is grant of time bound promotion. Time bound promotion has been given to the petitioner from 1.4.1989 treating 1.4.1979 as the date of promotion on the post of Correspondence Clerk. Since the Court has already held in the earlier part of the order that this benefit cannot be given to the petitioner from 1.4.1979, therefore, the time bound promotion will have to be re- worked and ten years will have to be calculated from 10.11.1981 and not from 1.4.1979. Annexure-6 to this extent also stands modified. As for the reason given by the respondents that - 9 - the petitioner was not entitled to the benefit of time bound promotion because he had not passed the departmental examination does not seem to be correct because there are many a decisions of this Court to show that grant of time bound promotion was not to be linked with passing of departmental examination because time bound promotion was not considered to be a substantive promotion but only benefit of a pay scale was given in absence of promotion. Though learned counsel for the State has drawn the attention of this Court to a recent decision of the learned Single Judge rendered in the case of Daya Shankar Singh Vs. State of Bihar and others reported in 2010 (3) PLJR, 220. but this Court has certain reservation in applying the principles laid down in the said decision in view of the fact that the Court must also keep in mind the time frame within which the benefit was given and when it is sought to be taken away coupled with the fact that there was a view of the Court that passing of departmental examination was not a must for grant of benefit of time bound promotion. Submission made on behalf of the petitioner that - 10 - the recovery is sought to be made now and that ought not to be permitted, merits consideration because similar matters have been issue of debate or adjudication before this Court. One such case is case of Ram Binod Singh Vs. Bihar State Electricity Board and others reported in 2007(3) PLJR, 398(F.B.) It has been held that when a benefit has been conferred on an employee by the respondents and the employee has continued to draw the same for a long period of time and there is nothing to indicate that such a benefit was obtained by the petitioner, then no recovery can be made or ought to be made. Such a view has also been affirmed by the Supreme Court in one of the recent decision of Syed Abdul Qadir and others Vs. State of Bihar, 2009(2) PLJR, 74 (S.C.). Keeping the principle laid down in the two decisions in mind as well as the time frame from which the petitioner continued to draw the benefit, it is too late in the day to allow recovery. This writ application is allowed to the extent that the benefit of promotion on the post of Correspondence Clerk will accrue to the petitioner from 10.11.1981 and time bound promotion will be re-worked treating - 11 - 10.11.1981 to be the basis for calculating ten years instead of 1.4.1979. Since the petitioner has retired, his pay scale will be re-fixed by re-working the two dates in this regard. So far as recovery is concerned, annexure-7 is quashed. If any recovery has already been made, the same will be refunded or settled in the settlement of the retiral dues. This writ application is allowed to the extent indicated above. AMIN/ (Ajay Kumar Tripathi, J.)