IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10358 of 2001 LALJEE CHAUDHARY, S/o- Late Muneshwar Chaudhary, resident of Jhepha Bazar, P.s.-Jiradei, District- Siwan Versus 1. THE STATE OF BIHAR, through the Secretary, Department of Health, Govt. of Bihar, Patna 2. Director-in-Chief, Health Services, Govt. of Bihar, Patna. 3. State Leprosy Eradication Officer, Patna. 4. District Leprosy Officer, Saran, Chapra. 5. Accountant General, Bihar, Patna. 6. Senior Account Officer, in the office of Accountant General, Bihar, Patna. WITH CWJC No.10359 of 2001 SUDARSHAN SINGH, Son of Late Lal Bahadur Singh, resident of village- Balhum, Via-Darauli, P.S.- Darauli, District-Siwan. Versus 1. THE STATE OF BIHAR, through the Secretary, Department of Health, Govt. of Bihar, Patna 2. Director-in-Chief, Health Services, Govt. of Bihar, Patna. 3. State Leprosy Eradication Officer, Patna. 4. District Leprosy Officer, Saran, Chapra. 5. Accountant General, Bihar, Patna. 6. Senior Account Officer, in the office of Accountant General, Bihar, Patna. 7. District Provident Fund Officer, Siwan -------- For the Petitioners :-Mr. Banwari Sharma, Adv. Mr. Shiv Kumar, Adv. Mr.Dilip Kumar, Adv. For the State :- Mr. Rajesh Singh, A.C. to AAG-II For the Accountant General:-Mr. Madhuresh Prasad (in C.W.J.C. No. 10358 of 2001) Mr. Arun Kumar(in C.W.J.C. No. 10359 of 2001) *********** 2 7 30.11.2009 The petitioners of the two writ petitions have inter alia challenged the order/directive issued by the Senior Accounts Officer in the office of the Accountant General, Bihar, Patna as contained in letter dated 9.1.2001 (Annexure-5) and Memo dated 7.6.2001 (Annexure-7) to C.W.J.C. No. 10358 of 2001 whereby the District Leprosy Eradication Officer has been directed to recover excess amount paid to petitioner by reason of incorrect pay fixation. Similar orders dated 31.01.2001 and 15.5.2001 is placed at Annexure- 3 and 5 respectively to C.W.J.C. No. 10359 of 2001. The petitioners have also prayed for refixation of their pension, gratuity and other retiral benefits on the basis of the promotional scale of Rs. 5000/- to 8000/- granted to them with effect from 1.1.1996. With the consent of the parties this matter is being heard and disposed of at the stage of admission. As the issues are common hence they have been taken up together with a view to its final disposal. I shall go by the representative facts as presented in C.W.J.C. No. 10358 of 2001 (Laljee Choudhary versus 3 State of Bihar) and the annexures appended thereto unless the same is clarified by specific reference. The petitioners were promoted from the post of Non Medical Assistant to the post of Medical Social Worker vide order bearing memo No. 1690 dated 19.12.1995 issued under the signature of the respondent No.3, State Leprosy Eradication Officer, Patna (Annexure-1). The name of the petitioner of C.W.J.C. No. 10358 of 2001 namely Laljee Choudhary appears at serial No. 44 and the name of the petitioner of C.W.J.C. No. 10359 of 2001 namely, Sudarshan Singh appears at serial No. 50 of the said promotion order. The petitioners upon their respective promotion had been posted to Chapra and Gopalganj respectively. The copy forwarded to the concerned officials of the District specifically required them to relieve the officers named in the order within 15 days of the receipt of the said order with intimation to the signatory of the order to enable them to join their new place of posting. Following the promotional order, an order came to be issued under the signature of the Incharge, Medical Officer, Leprosy Control 4 Unit, Siwan bearing memo No.6 dated 13.1.1996 which inter alia mentioned that the petitioner Laljee choudhary had to handover his charge to one Sri Swami Nath Singh and the petitioner, Sudarshan Singh had to handover the charge to one Girish Nandan Pd.(Annexure-2 to C.W.J.C. No. 10359 of 2001). In compliance of the directives mentioned in the promotional order (Annexure-1), the Incharge Medical Officer, Leprosy Control Unit, Siwan vide memo No. 13 dated 31.1.1996 (Annexure-2) relieved the petitioner No.1 requiring him to handover his charge to Shri Swami Nath Singh and pursuant thereto the petitioner No.1 handed over his charge at Siwan and joined at his promotional place of posting at Chapra vide joining dated 1.2.1996 (Annexure-3). The petitioner of the second writ petition, Sudarshan Singh was relieved on 1.2.1996 and he joined at his promotional place of posting at Gopalganj on 2.2.1996 and which fact is manifest from Annexures-4 and 5 of C.W.J.C. No. 10359 of 2001. It is also manifest from the said annexures that since these petitioners were already drawing their respective salaries in the promoted scale of 5 Rs. 1400/- to 2600/- hence no separate order was issued regarding their respective pay fixation on the promotional post. By reason of the implementation of the 5th Pay Revision Commission, the pay scales were revised in the State with effect from 1.1.1996 and as a consequence whereof the pay scale of the Medical Social Worker was fixed at Rs. 5000/- to 8000/-. It is indisputed that both the petitioners were allowed their revised pay scale attached to the post of Medical Social Worker i.e. of Rs. 5000/- to 8000/- with effect from 1.1.1996 and until their respective dates of superannuation. Petitioner, Laljee Choudhary superannuated on 30.6.2000 and petitioner Sudarshan Singh retired on 31.1.2000 and until this stage there was no dispute. Consequent upon retirement of these petitioners their individual pension papers were forwarded to the Accountant General for issuance of necessary authorization to enable the respondent department to take steps for payment of the retiral benefits of the petitioners. It is at this stage that the dispute started in the form of an objection raised by the Accountant General and 6 communicated vide memo No. 4 dated 9.1.2001 to the Incharge, Medical Officer, District Leprosy Eradication Officer, Chapra by the Senior Accounts Officer, Bihar, Patna in the office of the Accountant General (Annexure-5). By the said communication an objection was raised that though the petitioner, Laljee Choudhary had been promoted as Medical Social Worker on 1.2.1996 but his pay scale has been fixed in the scale of Rs. 5000/- to 8000/- with effect from 1.1.1996. In the light of the objection, a direction was issued for adjustment of the excess amount paid to the petitioner, Laljee Choudhary. Similar objections were also raised with regard to petitioner, Sudarshan Singh vide memo dated 31.1.2001 (Annexure-3 to C.W.J.C. No. 10359 of 2001). It has been stated that though Mr. Singh had been promoted on 2.2.1996 on the post of Medical Social Worker but he has been given the benefit of pay scale with effect from 1.1.1996. It has been mentioned that the pay scale of Non Medical Assistant as on 1.1.1996 was only 4000 to 6000/- and thus the promotional scale of 5000/- to 8000/- could only be granted to petitioner, Sudarshan Singh 7 with effect from 2.2.1996 i.e. date of his promotion. In the light of the objections aforementioned direction was issued for adjustment of the excess payment paid to petitioner, Sudarshan Singh. The District Leprosy Eradication Officer, respondent No.4 in reply to the objection raised by the Senior Accounts Officer as contained in Annexure-5 vide letter dated 15.3.2001 (Annexure-6) clarified that the petitioner had been granted promotion to the post of Medical Social Worker vide memo No. 1690 dated 19.12.1995 (Annexure1). It was further mentioned that as the petitioner was already drawing salary in the scale of Rs. 1400/- to 2600/- after being granted second time bound promotion and which was the scale of the Medical Social Worker hence he could not be granted any financial benefits. The respondent No.4 has also clearly mentioned that the date of promotion of the petitioner would be from the date of the order i.e. 19.12.1995 and not from the date of joining as the same would be against the orders issued in this regard and further the inter se seniority amongst the officers would be adversely affected. The 8 respondent No.4 has also mentioned that the petitioner Laljee Choudhary was not in any way responsible for his relieving on 31.1.1996 for joining on the promoted post. He has stated that the pay and allowances of the petitioner Laljee Choudhary had been fixed treating his date of promotion as 19.12.1995 and which was correct. Clarifying the matter, the respondent No.4 has requested the Senior Accounts Officer to immediately issue the pension payment orders mentioning therein that it is not a case of excess withdrawal. Similar letter was also issued by the Incharge, Medical Officer, Siwan vide letter dated 15.3.2001 to the Accountant General which is placed at Annexure-4 to C.W.J.C. No. 10359 of 2001 with request to issue the pension payment authorization order. The explanation given by the department was not accepted and the Senior Accounts Officer vide letter dated 7.6.2001 (Annexure-7) directed the District Leprosy Eradication Officer to recover the excess amount. Similar orders is contained in letter dated 15.5.2001 and which is placed at Annexure-5 to the C.W.J.C. No. 10359 of 2001. 9 The petitioners challenging the legality and validity of the objections raised by the Senior Accounts Officer in the office of the Accountant General, respondent No.6 as contained in Annexures 5 and 7 to C.W.J.C. No. 10358 of 2001 and annexures 3 and 5 to C.W.J.C. No. 10359 of 2001, filed the present writ petitions and this Court by order dated 10.8.2001 passed in C.W.J.C. No. 10358 of 2001 was pleased to stay the recovery and adjustment of the excess amount from the petitioner, Laljee Choudhary as contained in Annexure-7 to the writ petition. It was further ordered that fixation and the payment of the retiral benefits to the petitioner would be subject to the final decision. Identical interim orders dated 10.8.2001 was passed in C.W.J.C. No. 10359 /2001 the case of Sudarshan Singh. As the issue of recovery from the retiral benefits of a retired employee was pending before the Full Bench of this Court hence these writ petitions were directed for being listed after disposal thereof. These matters have been listed for admission upon disposal of the matters pending consideration before the full Bench. 10 The only issue which requires determination is whether the objection raised by the respondent No.6, Senior Accounts Officer in the office of Accountant General to the effect that the date of joining of the petitioners would be treated to be the date of promotion, is justified and has any lawful support. Learned counsel appearing on behalf of the petitioners submits that an order of promotion takes effect from the date of its issuance and cannot be extended and connected to the date of joining. He submits that the date of joining of any person so promoted is dependent upon several factors like order of relieving, taking over of charge by successor and the like. He thus submits that it is not within the domain of the person so promoted to just relinquish his post and join at his promotional post. He submits that unless he is relieved by his controlling authority and some one takes over the charge from him he cannot abandon of his post on his own volition. He further submits that it is not a case of the State that the delay in joining the promotional post by these petitioners were in any manner 11 attributable to them. With reference to the clarification issued by the respondent, District Leprosy Eradication Officer placed at Annexure-6 of the writ petition, it was submitted that this confusion stands clarified by the administrative head who in no uncertain terms has intimated the respondent No.6, the Senior Accounts Officer that the petitioners were not responsible for their joining and that their respective promotions have taken effect from the date of issuance of the order of promotion i.e. 19.12.1995 (Annexure-1). In continuation it was submitted that it has been consistently held by this Court and the Supreme Court that where a promotion has been denied to a person unjustly and in violation of the rules then he becomes entitled to the benefits arising from the promotion from the date of the order of promotion. It was lastly submitted that the Accountant General in furtherance of their arbitrary objections have fixed their pension and retiral benefits at a lower scale than to which the petitioners are entitled and thus the petitioners are suffering each day drawing a lesser pension and have also been paid their 12 retiral benefits on the basis of a lower pay fixation. Mr. Banwari Sharma appearing for the petitioner in support of his submission referred to following reported judgments :- (i) 1990 (2) PLJR 248 (Parash Nath Pd. versus State of Bihar) (ii) 2003 (2) PLJR 44 (Md. Hafiz versus State of Bihar) (iii) 2004 (2) PLJR 123 (Jugeshwar Bhatt versus State of Bihar) (iv) An unreported judgment dated 8.4.2009 passed in L.P.A. No. 689 of 2008 (State of Bihar and Ors. versus Madan Bihari Singh) In all cases it was held that the petitioners were entitled to all consequential benefits with effect from the date of his promotion. Learned counsel appearing on behalf of the petitioners thus submits that the objection raised by the Senior Accounts Officer in the case of these writ petitioners is per se arbitrary and without sanction of law and thus 13 fit to be set aside. He further submits that the objections have no legal basis. Learned counsel appearing on behalf of the respondent State reiterates the position as emanating from Annexure-6 to the writ petition which is a letter issued by the District Leprosy Eradication Officer, Chapra(Saran) to the Accountant General, Bihar, Patna in response to his objections. Similar response is available at Annexure-4 to C.W.J.C. No. 10359/2001. The stand of the State is very clear on the issue and in no uncertain terms it has been stated that the petitioners were promoted on 19.12.1995 and the delay in their relieving was not attributable to them and that they were entitled to the promotional benefits w.e.f 19.12.1995. It was further clarified that as the pay scale of Medical Social Worker was revised to Rs. 5000- 8000/- w.e.f. 1.1.1996 hence the petitioners were also entitled to the revised scale from the said date. Learned counsel appearing on behalf of the Accountant General in the two writ petitions with reference to Rule 58 of Bihar Pension Rules, submits that the benefits of the promotional post can only accrue to the 14 petitioners from the date they have joined on their respective promoted post and as the petitioner Laljee Choudhary joined the promoted post on 1.2.1996 and whereas petitioner Sudarshan Singh joined his promotional post on 2.2.1996, hence the salary on the promotional post of Medical Social Worker can be granted to them from the said dates only and not prior thereto. It was submitted that although the order of promotion was issued on 19.12.1995 but the petitioners did not handover their respective charge as non Medical Assistant and continued to do so until 31.1.1996 in the case of petitioner Laljee Choudhary and on 1.2.1996 in the case of the petitioner Sudarshan Singh and thus they were entitled to draw the pay and allowances attached to the post of non-Medical Assistant until the said date. He thus submits that payment made to the petitioners on the promotional scale of 5000/- to 8000/- with effect from 1.1.1996 until the date they actually joined the post was contrary to the provisions of Rule 58 of the Bihar Pension Rules and thus was recoverable from them as the same was by way of excess payment to the 15 petitioners. Mr. Banwari Sharma, responding to the claim of the counsel representing Accountant General submits that this position is no more res integra and the issue stands concluded by judgments of this Court. He further submits that Rule 58 has been interpreted by this Court in a judgment reported in 2007(suppl.) P.L.J.R. 275 (Ram Mohan Pd. versus State of Bihar) wherein a Bench of this Court while considering Rule 58 of the Bihar Pension Rule has held that the same was contrary to all canons of justice inasmuch as for no fault committed by the person effected, he is made to suffer by default of others. Mr. Banwari Sharma refers to another Bench decision of this Court reported in 2007 (1) BBCJ 328 (Rajendra Paswan versus State of Bihar) wherein this Court considering similar issues was pleased to hold that it was not open to the authorities to deprive the petitioner of the financial and other benefits flowing from his promotion with effect from that date. It was also held that Rule 58 has no application in such cases. The petitioner of the said case had also been granted promotional benefits from 16 the date of joining and not from the date of promotion. Mr. Banwari Sharma summarizing his arguments submitted that in view of the accompanying circumstances attached to the case of the two petitioners coupled with the judicial pronouncements on the issue, the objection raised by the Senior Accounts Officer in the case of the two petitioners was patently illegal, arbitrary and without sanction of law and thus required to be interfered by this Court in exercise of jurisdiction under Article, 226 of the constitution of India. Having considered the rival contentions and upon perusal of the materials on record, this Court comes to a irresistible conclusion that the objection raised by the Senior Accounts Officer in the case of the two petitioners appended at Annexures 5 and 7 to C.W.J.C. No. 10358 of 2001 and Annexures 3 and 5 to C.W.J.C. No. 10359 of 2001 are not only in the teeth of judicial pronouncements but is also contrary to the service jurisprudence. It is settled principle that an order of transfer, promotion, suspension, termination and the like takes effect from the date of its issuance unless anything is proved to the contrary. 17 Learned counsel appearing on behalf of the petitioners has already cited a number of judgments in support of his submission that where a person has been deprived of his promotion and the same is found true then he becomes entitled to the benefits arising from the said promotion with effect from the date it became due. On this settled principle it is clear that the objection raised by the Senior Accounts officer has no lawful support nor any tangible basis. The reference of Rule 58 is also completely misplaced. The petitioners were no where responsible for their delayed relieving and which fact has also been admitted by the State-respondents. It is also manifest from the records that no sooner were the two petitioners relieved from their respective post they immediately joined their promotional post on the following date. Thus no delay whatsoever can be attributed to these petitioners. The State is also very clear on this issue and as is also manifest from the clarification issued by the District Leprosy Eradication Officer placed at Annexure-6 to the first writ petition and the letter of the Incharge, Medical officer 18 placed at Annexure-4 to the second writ petition. Rule 58 as already held by the Bench of this Court in the case of Rajendra Paswan (supra) and Ram Mohan Prasad (supra) can have no application in such cases where the fault does not lie with the petitioners. Thus considering the facts governing the two writ petitions in the light of the judicial pronouncements and the rules on the issue, this Court is of the opinion that the objection raised by the Senior Accounts Officer is patently arbitrary and unsustainable in law and has no lawful support. In the result, these writ petitions are allowed and the objections raised by the Senior Accounts Officer in the office of the Accountant General, Bihar, Patna placed at Annexures-5 and 7 to C.W.J.C. No. 10358 of 2001 and Annexures-3 and 5 to C.W.J.C. No. 10359 of 2001 are set aside and it is held that the petitioners were rightfully granted the revised scale with effect from 1.1.1996 consequent upon their promotion to the post of Medical Social Worker with effect from 19.12.1995 and which scale attached to the said post stood revised to 5000/- to 8000/- with effect from 1.1.1996 19 and thus there was no infirmity in the action of the respondents in allowing the revised pay scale to these petitioners with effect from 1.1.1996. I also hold that the pay scale of petitioners being correctly fixed in the revised scale from 1.1.1996, the natural corollary would be that there was no excess payment received by these petitioners and thus no recovery is warranted. The respondent authorities of the State Government and the Accountant General, Bihar, Patna are thus directed to process the pension papers of the petitioners and re-fix their respective pensionary entitlements and other retiral benefits viz gratuity, leave encashment etc. by treating the revision of their pay scale from 1.1.1996. This exercise should be completed within two months from the date of receipt/production of a copy of this order. Any amount which is found to be payable by reason of such refixation and recalculation of the pensionary benefits of the petitioner should be paid to them within one month of the calculation. As the recovery has already been stayed under the interim order of this Court hence no order need to be passed as there is no 20 case for refund. The writ petitions stands allowed with the aforesaid directions. Patna High Court, Patna Date 30th of November, 2009 Bibhash/NAFR (Jyoti Saran, J.)