IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.690 of 2005 BAIDYANATH THAKUR, S/O LATE JUGAL THAKUR, R/O VILLAGE-DUMARI, P.S.-MUSAHARI, DISTRICT- MUZAFFARPUR. ………………PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH THE COMMISSIONER-CUM-SECRETARY, DEPARTMENT OF HEALTH, GOVT. OF BIHAR, PATNA. 2. DIRECTOR-IN-CHIEF, HEALTH SERVICE, GOVT. OF BIHAR, PATNA. 3. CIVIL SURGEON-CUM-CHIEF MEDICAL OFFICER, MUZAFFARPUR. 4. INCHARGE MEDICAL OFFICER, PRIMARY HEALTH CENTRE, MUSAHARI. 5. ACCOUNTANT GENERAL, BIHAR, PATNA. ……………RESPONDENTS. For the petitioner : Mr. Banwari Sharma, Adv. and Mr. Shiv Kumar, Adv. For the State : Mr. Rajesh Kumar, G.P- VIII,Mr. Ashutosh Singh, AC to GP-VIII. For the A.G. : Mr. Raj Nandan Pd. Adv. ----------- 11 07.12.2009 Heard learned counsel for the petitioner and learned counsel for the State. Petitioner has filed this writ application for quashing of letter dated 13.9.2000 (Annexure-1) issued from the office of the Accountant General, Bihar, Patna by which some objections were raised with regard to grant of first time bound promotion to the petitioner with effect from 1.4.1981 and the second time bound promotion granted to him with effect from 1.4.1984, on the ground that while adjusting the services of the petitioner from the post of 2 Superior Field Worker under Malaria Eradication Programme to the post of Basic Health Worker in the Health Department, Government of Bihar with effect from 16.5.1974 petitioner was granted promotion. Therefore, the relevant date for counting qualifying period for grant of first promotion was to be treated as 16.5.1974 and his pay scale had to be accordingly revised and excess amount paid to him had to be adjusted. Prayer has also been made for quashing of the consequential letter issued by the Incharge Medical Officer, Primary Health Centre, Muzaffarpur dated 1.1.2001 (Annexure-2) to the Accountant General, by which, treating the petitioner appointed on the post of Basic Health Worker on 16.5.1974, his date of first time bound promotion has been shifted to 16.5.1984 and request has been made to fix up the pension of the petitioner accordingly, with adjustment of excess amount paid to him. Case of the petitioner is that under Malaria Eradication Programme, a Programme sponsored by the Government, he was appointed as Superior Field Worker in 1960. However, some time before 1974 the said Programme was closed 3 by the Government under a policy decision and it was decided to adjust all the working hand under the Programme in the regular service of the Health Department as Basic Health Worker. Accordingly, by order dated 16.5.1974 petitioner’s services were absorbed under the Department as Basic Health Worker. Petitioner was found eligible for first time bound promotion reckoning his services from 1960 itself. Accordingly, he was given first time bound promotion with effect from 1.4.1981, and calculating his 25 years of service, he was given second time bound promotion with effect from 1.4.1984. He continued as such with all benefits of the first time bound promotion and second time bound promotion and ultimately superannuated from service with effect from 31.1.2000. After his superannuation, the papers of the petitioner were sent to the Accountant General office for fixation of his pension and for grant of the same. However, after examining his papers, the Accountant General office raised objections against grant of first time bound promotion to the petitioner from 1.4.1981 and second time bound promotion from 1.4.1984 4 through the impugned letter dated 13.9.2000 (Annexure-1) and the Incharge Medical Officer was requested to make corrections in the service book and the pay fixation of the petitioner. Accordingly, the Incharge Medical Officer complied with the same and returned back the service book and other papers relating to the petitioner through impugned letter dated 1.1.2001 (Annexure-2) for fixation of pension accordingly, adjustment of excess amount paid to him. Learned counsel for the petitioner submits that absorption of the petitioner in the regular service of the Health Department on the post of Basic Health Worker with effect from 16.5.1974 was not a promotion. He submits that, in fact, it was adjustment and absorption of the services of the petitioner in the regular service pursuant to the policy decision of the Government. Hence, petitioner was rightly given the first time bound promotion from 1.4.1981 and the second time bound promotion from 1.4.1984 taking into account his entire length of service and was paid consequential benefits of the same till his superannuation from service with effect 5 from 31.1.2000. Therefore, he submits that the Accountant General office had raised objections on wrong premises which was illegal and, therefore, is fit to be quashed. Counter affidavit has been filed in this case. Supporting the stand taken in the counter affidavit, learned counsel for the State submits that the said absorption of the petitioner on the post of Basic Health Worker under the Department was a promotion as the petitioner was put in the higher scale of pay than what he was getting as Superior Field Worker. He submits that the same was therefore rightly corrected into service book of petitioner upon objection being raised by the Accountant General office that petitioner was posted on the post of Basic Health Worker on promotion. The issues raised in this writ application necessitated the examination of the policy decision of the Government in respect of abolition of the Malaria Eradication Programme and the terms and conditions under which the working hand of the Programme had to be absorbed/ adjusted in the regular service of the 6 Department. This submission of learned counsel for the petitioner was noticed by a Bench of this Court in an order passed in the case as far back as on 12.9.2006. In the light of the submissions, learned counsel for the State was allowed time to seek instructions. Thereafter, repeated adjournments were allowed to learned counsel for the State to produce materials in the case to satisfy this Court with regard to terms and conditions under which the working hands of the Programme were adjusted/ absorbed in the Department. Adjournments for this purpose were allowed to learned counsel for the State on 9.4.2007, 11.7.2007, 20.8.2009 and 15.9.2009. However, no materials have been produced in this case by the respondents inspite of best efforts by learned counsel for the State appearing in the case. Therefore, by order dated 5.11.2009, a bailable warrant of arrest was issued against the respondent Civil Surgeon, Muzaffarpur for his presence in the Court on the next date. He appeared on 12.11.2009 and submitted that he had joined the post recently and, therefore, he needed some time to consider the matter and file 7 supplementary counter affidavit as directed by this Court earlier. While granting adjournment to the Civil Surgeon, Muzaffarpur this Court observed that, in case, no affidavit is filed by the next date, it would be presumed that the respondents have no answer to the issues raised by the petitioner and this Court will proceed accordingly. The case was taken up on 24.11.2009, but no further material by way of circular/policy decision of the Government was produced by the respondents. Another indulgence was granted to the respondents and the case was adjourned for today. Today also learned counsel for the respondents expresses his inability to file any supplementary counter affidavit or to produce the Government policy decision in respect of abolition of the Programme and the decision of the Government laying down terms and conditions for adjustment/absorption of the working hand of the Programme in the regular service of the Health Department. Thus, on record, except for the pleadings made by the then Civil Surgeon in his counter affidavit that the order dated 16.5.1974 absorbing the 8 petitioner on the post of Basic Health Worker under the Department was a promotion, there is no material to dispute the claim of the petitioner. It is not unknown to the service jurisprudence that on the abolition of a post the incumbent working thereon is adjusted or absorbed on similar post carrying the same pay scale and having similar duties. But this is also not uncommon that, if no equivalent post in the same pay scale is available in regular cadre, the incumbent of the abolished post is, at times, absorbed on an equivalent post in the cadre carrying the next higher pay scale. This adjustment/absorption of an incumbent of an abolished post against the existing post carrying higher pay scale is done in exigencies of the situation and due to non-availability of the post in the cadre in the same pay scale. This is not treated as a promotion till a clear intention and scheme is spelt out from the decision of the Government. In this case, except for the pleadings made by the then Civil Surgeon in his counter affidavit, no material has been placed on the records of this case to show that 9 the Government had taken any such policy decision and had laid down any terms and conditions while deciding to abolish the Programme and adjust/absorb the working hand of the Programme in regular service of the State Government. It may be noticed that the counter affidavit and supplementary counter affidavit in the case have been filed only by the Civil Surgeon and the Incharge Medical Officer, who are not competent to assert about any policy decision of the State Government in absence of any supporting materials. No higher functionaries of the Department has filed counter affidavit in the case with reference to any such decision of the Government. In the Circumstances, this Court has no option but to accept the submissions of learned counsel for the petitioner. Accordingly, it is held that the absorption/adjustment of the petitioner from the post of Superior Field Worker, upon abolition of the Programme, to the post of Basic Health Worker by order dated 16.5.1974 was not a promotion. Hence, the petitioner’s continuous service has to be taken into account for 10 granting him first time bound promotion which was rightly given to him earlier with effect from 1.4.1981 and similarly counting his continuous service from his initial date of appointment, he was rightly given second time bound promotion with effect from 1.4.1984. In the circumstances, the objections raised by the Accountant General office through letter dated 13.9.2000 (Annexure-1) and the consequential order issued by the Incharge Medical Officer through letter dated 1.1.2001 (Annexure-2) have no legs to stand and they are quashed. The respondents are directed to treat the petitioner as having been given the first time bound promotion with effect from 1.4.1981 and second time bound promotion with effect from 1.4.1984 and all the consequential benefits of the petitioner shall be paid to him accordingly. The respondents shall also fix up the pension of the petitioner in the light of the said directions and issue orders for payment of the same to the petitioner. Learned counsel for the petitioner submits that an amount of Rs.1,09,676.80 Paise was adjusted from pensionary benefits of the 11 petitioner on account of Annexures-1 and 2. As the Annexures are now quashed, the said amount must be refunded to him by the respondents. All these calculation, fixation and refund to the petitioner must be done within three months from the date of receipt/production of a copy of this order. In case the respondents do not comply with the orders and directions by this Court, as aforesaid, within the said three months, the petitioner will be entitled to an interest of 10% annually compoundable on his dues from the next date of expiry of the three months till its actual payment. This writ application is accordingly allowed with the above observations and directions. Arvind/ ( J. N. Singh, J.)