IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.507 of 2005 KRISHNA MOHAN PRASAD, SON OF LATE BHUNESHWARI PRASAD, RESIDENT OF MOHALLA 15 REVENUE COLONY, CHITRAGUPTA NAGAR, POLICE STATION KANKARBAGH, DISTRICT – PATNA. ………. PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY, HOME DEPARTMENT, HAVING HIS OFFICE IN OLD SECRETARIAT, POLICE STATION SACHIVALAYA, DISTRICT – PATNA. 2. THE ADDITIONAL DIRECTOR GENERAL-CUM- COMMANDANT GENERAL, BIHAR, PATNA. 3. THE COMMANDANT, BIHAR HOME GUARD, PATNA, HAVING HIS OFFICE IN CHHAJUBAGH, PATNA. 4. THE TREASURY OFFICER, PATNA SECRETARIAT, HAVING HIS OFFICE IN SINCHAI BHAWAN, POLICE STATION SACHIVALAYA, DISTRICT – PATNA. 5. THE ACCOUNTANT GENERAL (ACCOUNTS AND ENTITLEMENT), BIHAR, PATNA, HAVING HIS OFFICE IN BIRCHAND PATEL PATH, POLICE STATION KOTWALI, DISTRICT – PATNA. 6. THE ASSISTANT ACCOUNT OFFICER, ACCOUNTANT GENERAL OFFICE, BIRCHAND PATEL MARG, PATNA. ……….. RESPONDENTS. FOR THE PETITIONER : - MR. MUKESHWAR DAYAL, ADVOCATE FOR THE STATE : - MR. VISHWAJEET KUMAR MISHRA, AC TO GA 9. FOR THE ACCOUNTANT GENERAL: - MR. SANJAY KUMAR, ADVOCATE ----------- 18/ 10.03.2011 Heard counsel for the petitioner, the State and the counsel appearing for Accountant General. Counter affidavit, supplementary affidavits and reply to the counter affidavits have been filed on behalf of the parties. Prayer of the petitioner is for quashing of order contained in the letter issued by the office of Accountant General (Accounts and Entitlement), Bihar, Patna vide no. PEN 5581 dated 17.9.2004, whereby recovery of Rs.1,04,245/- has been made from the gratuity of the petitioner on this ground that despite 2 cancellation of second time bound promotion given to the petitioner he was paid his salary in the higher scale and thus excess payment has been made to the petitioner amounting to Rs.1,04.245/-. The impugned order has been challenged on the ground that without giving any opportunity to him for explaining the situation and in violation of rule of natural justice, it has been issued by the Accountant General (Accounts and Entitlement), Bihar, Patna. Petitioner was appointed on the post of Hawaldar Clerk Typist in Bihar Home Guard in the year, 1966. He was promoted to the post of Jamadar Head Clerk (Company Commander) with effect from 28.01.1980. The State of Bihar enforced time bound promotion scheme vide notification no. 10770 dated 30.12.1981. The object behind enforcement of this scheme was to removal of stagnation of such employees in service, who have not been able to get any promotion during entire service career. Such employees, as per the scheme would get benefit of two time bound promotions, one on completion of 10 years 3 of their service and another on completion of 25 years of their service. Such employees who after joining government service have not been elevated to higher pay scale by promotion or even on account of up gradation, they were considered entitled for two time bound promotions, in their service career. The provisions under the scheme was subsequently relaxed on different occasions and as per the final scheme the enhancement in scale was considered to be applicable in case an employee, who has been allowed one regular promotion prior to enforcement of the time bound promotion scheme, but has not been allowed any other promotion, such employees will be entitled for at least one more enhancement in their pay scale by way of one time bound promotion. What happened in the case of the petitioner that he was allowed one regular promotion on 28.01.1980 to the post of Jamadar Head Clerk, (Company Commander), but thereafter he was neither promoted to any higher post are given benefit of higher pay scale. Considering this, by order contained in Memo No. 19 dated 04.01.2001 (Annexure-2), he was 4 allowed second time bound promotion. Subsequently, it was realized by the authorities that petitioner should have been allowed first time bound promotion instead of second time bound promotion, as such the order contained in Memo No. 19 dated 04.01.2001, allowing second time bound promotion to the petitioner, was corrected/modified. In the modified order dated 8.8.2001, in place of second time bound promotion, first time bound promotion was mentioned. Petitioner’s grievance is that without any rhyme and reason vide order contained in Memo No. 3930 dated 27.12.2003, respondents cancelled the order granting second time bound promotion, though he had never been allowed any second time bound promotion. Since the petitioner had been granted only first time bound promotion as such till the date of his superannuation on 31.01.2002, he continued to receive his salary in the promotional scale, subsequent to petitioner’s retirement, when his pension was being fixed, letter through which second time bound promotion had been granted to the petitioner, was cancelled without seeking any explanation from the 5 petitioner, under this presumption that two time bound promotions have wrongly been allowed to the petitioner on account of cancellation of order granting second time bound promotion enhanced salary received by the petitioner, due to one time bound promotion allowed to him, was considered as excess payment of salary and vide impugned order PEN 5581 dated 17.9.2004, the Accountant General directed for recovery of Rs.1,04,245/- from the petitioner. Recovery was made from the amount of gratuity, payable to the petitioner. Initially the writ application was filed only for a direction to release the recovered amount in favour of the petitioner, but in course of hearing, it was found that for passing any substantial order in favour of the petitioner, it is essential that the order cancelling his time bound promotion contained in Memo No.3930 dated 27.12.2003, must also be quashed. Petitioner, thereafter, filed I.A. No. 1345 of 2009 making additional prayer relating to quashing of the order contained in Memo No. 3930 dated 27.12.2003, whereby his time bound promotion had been cancelled. 6 Considering the fact that the scheme of time bound promotion was introduced for removing stagnation and at least two enhancements in pay scale of an employee was considered to be essential during entire service career of an employee, either by granting two time bound promotions or one merit and one time bound promotion. The present case is well within the purview of the time bound promotion scheme introduced by the State Govt. During his entire service career, the petitioner had been given only two promotions; one by way of regular promotion and another by way of enhancement in his pay scale, by granting first time bound promotion. The petitioner was given regular promotion on 28.01.1980 and second enhancement in his pay scale was allowed to him, when he was given time bound promotion. In the order granting time bound promotion, instead of mentioning first time bound promotion, wrongly second time bound promotion was mentioned, though only one time bound promotion has been allowed to the petitioner. Considering all these facts, there was no reason for recovery of any amount from the gratuity of the 7 petitioner. Since, first time bound promotion allowed to the petitioner was as per the scheme issued by the Govt. and second time bound promotion never been allowed to him, he had not been paid any excess amount as salary. Counsel for the petitioner, in order to justify that claim of the petitioner, has referred the case of one Lalit Prasad Singh, who is placed at serial no. 107 in the gradation list being junior to the petitioner. The petitioner is placed at serial no. 93 in the same gradation list. In Lalit Prasad Singh’s case also, similar order, cancelling his second time bound promotion was passed by the Commandant, Bihar Home Guard, Patna. Lalit Prasad Singh had also not been given any second time bound promotion, but in the letter grating first time bound promotion, erroneously second time bound promotion had been mentioned. Respondents without considering this fact that, no second time bound promotion had been given to Lalit Prasad Singh issued an order cancelling his second time bound promotion, as it has been done in the case of the petitioner. Lalit Prasad Singh challenged the cancellation order by 8 filing C.W.J.C. No. 16443 of 2004, and the order of cancellation was quashed on the ground that issuance of cancellation order shows total non-application of mind of the Respondents. It was also held in this writ application that there was no reason for cancellation of time bound promotion for the reason that the petitioner was already granted one regular promotion in 1980 prior to introduction of the scheme, specially, when Sub-clause (vii) of Section 11 of the government resolution provides that Government Servant is entitled for at least two promotions. The first by the end of 10 years of service and the second by the ends of 25 years of service, when Sub-clause (vii) is read with first sentence of the said sub-clause and sub-clause (i). Harmonious reading of this provision make it crystal clear, that such Government employee will be entitled, at least for two promotions, first by the ends of 10 years of service and second by the end of 25 years of his service, with only rider that the benefit is not to be given to those, who have already got the same by way of regular promotion. It means that if two regular promotions have already been allowed, no time bound 9 promotion scheme is applicable in case of any such employee. The judgment and order passed in the case of Lalit Prasad Singh vide CWJC No. 16443 of 2004 was affirmed in LPA No. 48 of 2006. The case of present petitioner is identical to the case of Lalit Prasad Singh. Only one regular promotion and one time bound promotion has been allowed to the petitioner. There was no reason for either cancelling his second time bound promotion, which was never given to him and on that account recovery of any amount from his pensionary benefits. Considering these facts, the order contained in Memo No. 3930 dated 27.12.2003, cancelling second time bound promotion, granted to the petitioner is quashed. The order contained in letter no. PEN 5881 dated 17.9.2004 issued by the office of the Accountant General (A & E), Bihar, Patna directing to recover Rs.1,04,245/- from the petitioner is also quashed. The respondents are directed to refix the pension of the petitioner and pay him all retiral benefits in the enhanced scale. All formalities must be completed by the respondents within twelve weeks from the date of 10 production/communication of the order. The amount recovered from the gratuity of the petitioner shall be refunded to him, within six weeks of either production or communication of this order. This application is allowed. DKS/ (Mridula Mishra, J.)