IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7563 of 1998 RAMJEE PRASAD, S/O LATE MADAN BIHARI LAL, R/O VILLAGE-KOLHRAMPUR, P.S.-BARHARA, DISTRICT- BHOJPUR, AT PRESENT RESIDING IN QR. NO. 146 D, RAILWAY COLONY RAJENDRA NAGAR, P.S.- KANKARBAGH, DISTRICT-PATNA. ………………PETITIONER. Versus 1. THE STATE OF BIHAR. 2. COMMISSIONER-CUM-SECRETARY, DEPARTMENT OF HEALTH, MEDICAL EDUCATION AND FAMILY WELFARE, GOVERNMENT OF BIHAR, PATNA. 3. DIRECTOR CHIEF, DEPARTMENT OF HEALTH, MEDICAL EDUCATION AND FAMILY WELFARE, GOVERNMENT OF BIHAR, PATNA. 4. ASSISTANT DIRECTOR, FILERIA, SWASTH BHAWAN, SULTANGANJ, PATNA. 5. ACCOUNTANT GENERAL, BIHAR, PATNA. ………………RESPONDENTS. ----------- For the Petitioner :Mr. Rajesh Prasad Choudhary, Adv. For the State :Mr.A.Amanullah, SC-17, Mr.S.Rahman, AC to SC-17. ----------- 5 13.04.2010 Heard learned counsel for the petitioner and learned counsel for the State. The short facts of the case are that the petitioner was appointed on 29.3.1964 as Store Clerk-cum-Diet Daroga under the Health Department. With the introduction of time bound promotion scheme for the employees of the Government with effect from 1.4.1981, petitioner was granted first time bound promotion from that date as at that time he had completed the requisite years of Service. Subsequently, petitioner was granted second time bound 2 promotion also with effect from 28.9.1989. He was granted the benefits of the promotions also. He continued as such and finally, he superannuated from service with effect from 31.12.1997. After superannuation, he submitted his pension papers on 21.2.1998. It appears that during scrutiny of his pension papers it appeared to the respondents that the petitioner had been wrongly granted the two promotions. Therefore, a show cause notice was issued to him vide letter dated 25.6.1998. A reply to the show cause was filed by the petitioner and thereafter the impugned order dated 17.7.1998, as contained in Annexure-1, was passed by the Assistant Director, Health Services. In the impugned order, it has been mentioned that on the objection of the Accountant General that the petitioner had been granted the promotions without passing Accounts Examination, it was found that the petitioner had wrongly been granted the two promotions in violation of para 11(2) of Finance Department Resolution No. 10770 dated 30.12.1981. It was also found that although he could apply for exemption but he did not avail the same and there was no exemption order in his favour. In the circumstances, the 3 orders of first time bound promotion and second time bound promotion of the petitioner were cancelled from retrospective effect and it was directed that correction shall be made in his pay scale and excess paid to him shall be calculated. Petitioner, being aggrieved by the said order, moved this Court in this writ application promptly. The case was taken up on 8.9.1998 and, while allowing time to learned counsel for the State to file counter affidavit, this Court passed an interim order restraining the respondents from making any recovery from the retirement benefits of the petitioner without obtaining further orders from this Court. By subsequent order dated 1.9.1999 the interim order was made to continue till the disposal of the writ application. Relying upon a Full Bench judgment of this Court in the case of Maheshwar Prasad Singh Vs. The State of Bihar and Ors. (2000 (4) PLJR 262), learned counsel for the petitioner submits that the amendment brought in Board Miscellaneous Rules, putting down a mandatory requirement for Clerks working in the Muffasil offices to pass departmental examination in 4 accounts for their promotion in selection grade, has been held to be operating prospectively. Since this amendment was brought in the said Rules with effect from 29.3.1982, the Full Bench in clear terms held that there was no such mandatory requirement between the period 1.5.1980 and 29.3.1982 i.e. the date on which the cadre of Lower Division and Upper Division clerks were merged and till the amendment came into force. He submits that admittedly, the petitioner was allowed first time bound promotion prior to 29.3.1982 and with effect from 1.4.1981. Therefore, no fault can be found in grant of first time bound promotion to him. He submits that once the first time bound promotion granted to the petitioner is held to be valid, he was legally entitled to grant of second time bound promotion also under the scheme. In support of this submission, he has relied upon two Judgments of learned Single Judges of this Court, in the case of Ram Yash Rai Vs. the State of Bihar & Ors (2005 (1) PLJR 267), and in the case of Brijanand Ojha Vs. The Bihar State Housing Board & Ors. (2003(4) PLJR 443). Learned counsel for the State in reply, 5 referring to paragraph nos. 6 and 8 of the counter affidavit, submitted that the Full Bench had categorically held that the said amendment in the said Board Miscellaneous Rules was applicable prospectively. Therefore, even if the first time bound promotion of the petitioner is held to be valid in the light of the Full Bench judgment, he will not be entitled to second time bound promotion as the said amendment was in operation at that point of time. He submits that the said judgments, as relied upon by learned counsel for the petitioner, are in respect of Clerks of the Works Department and not of general departments. Since the petitioner was employee of the Health Department the circulars referred to in those two judgments did not apply to him and therefore the judgments are not applicable in the case of petitioner. Learned counsel for the petitioner, in reply, submitted that subsequent circulars of 1992, 2001 and 2003 issued in respect of Works Department only, under consideration in the said two judgments, were discriminatory as there was no rationale for the respondents to exempt the clerks of the Works Department from the said requirement ignoring the clerks of the other 6 Departments performing identical duties. He submits that no distinction was made by the respondents in the letters in reference to the actual work being performed by the clerks. He submits that to save the circulars, which are old ones, and the action taken therein, this Court should hold that the same will be applicable to clerks of other Departments also uniformally. He also submits that the petitioner had made attempts to pass the examination, but he could not do so. As, in the meanwhile, he had crossed the age of 50 years, he applied for exemption which was arbitrarily denied to him by the concerned authorities. Learned counsel for the petitioner may be right. But this question involves a larger issue which may have wide repercussions. In view of the facts of the present case, this Court is of the opinion that the same does not require to be considered and decided. The facts of the case show that the petitioner was given first time bound promotion from the date the scheme came into force i.e. 1.4.1981 by memo dated 31.7.1985 and was also given second time bound promotion with effect from 28.9.1989 by memo dated 27.1.1993. The decision of grant of first time 7 bound promotion and second time bound promotion was a conscious decision of the authorities. Even thereafter, the petitioner continued in service for more than five years and derived all benefits. The respondents did not examine as to whether the same was granted to the petitioner correctly or not. It was only after when with full benefits of the promotions the petitioner superannuated from service, this question is being raised by the respondents only when the petitioner submitted his papers for fixation of pension and grant of other benefits. In the facts of this particular case, this Court finds that the respondents are not entitled to do the same. Therefore, the impugned order, as contained in Annexure-1, is quashed and the respondents are directed to fix pension of the petitioner and grant all pensionary benefits treating him to have been validly granted the first time bound promotion and second time bound promotion. All consequential benefits in this respect shall be revised and paid to the petitioner preferably within a period of three months from the date of receipt/production of a copy of this order, if not already paid. 8 The writ application is allowed with the aforesaid observations and directions. Arvind/ (J. N. Singh, J.)