IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.189 of 2001 DAYAMANTI DEVI Versus THE STATE OF BIHAR & ORS ----------- 11 28.08.2008 Heard learned counsel for the petitioner and learned counsel for the State. Petitioner has filed this writ application for quashing the order, as contained in Annexure- 5, whereby the promotion granted to the husband of the petitioner in the junior selection grade w.e.f. 1.4.1981 was cancelled and it was stated that although he would be entitled to time bound promotion w.e.f. 1.4.1981 but the benefits of the same would be admissible to him w.e.f. 27.3.1987. The petitioner has further prayed for quashing the order, as contained in Annexure-9, by which the Accountant General has communicated to the Deputy Director, Water Resources Division, Patna that excess payment made to the petitioner on account of salary drawn by him has to be recovered. The contention of the petitioner is that her late husband was appointed in the work charge establishment under the 2 Department of Water Resources in 1959. Later on, on account of completion of five years service in work charge establishment, his service was regularized w.e.f. 1.4.1971 by office order dated 22.4.1977, as contained in Annexure-1. The contention of learned counsel for the petitioner is that the resolution of the Finance Department providing for time bound promotion to regular employees of the Government came into effect from 1.4.1981. As per the said resolution of the Finance Department, the employees of the Government who had completed 10 years of service without any promotion were to be given first time bound promotion in the next higher scale, and second time bound promotion after completion of 25 years of service in yet next higher scale, if no regular promotion has been granted to them. As per the submission of the learned counsel for the petitioner, the petitioner, whose services were regularized w.e.f. 1.4.1971, completed 10 years of regular service under the Government on 1.4.1981. Therefore, by the order of the 3 Chief Engineer dated 4.9.1986 vide Annexure- 2, he was promoted to junior selection grade w.e.f. 1.4.1981. Pursuant to that promotion the pay scale of the petitioner was fixed on the next higher grade giving 12% benefit of pay vide Annexure-3. Subsequently husband of the petitioner was also granted second time bound promotion by office order dated 13.8.1984 vide Annexure-4. However, by order of the Government contained in impugned Annexure-5, the promotion of petitioner in the junior selection grade w.e.f. 1.4.1981 was cancelled. But simultaneously it was provided in the order that the petitioner shall be treated to have been promoted under time bound promotion scheme w.e.f. 1.4.1981 on notional basis and he shall be entitled to the monetary benefits w.e.f. 27.3.1987 only. Husband of the petitioner represented against the said cancellation of the promotion vide Annexure-7 on 8.7.96. However, before the matter could be decided, husband of the petitioner died on 20.7.1997 while he was in service. After the death of the husband of the petitioner, the matter of fixation of 4 family pension of the petitioner and the orders of the Government were forwarded to the Accountant General. In view of the cancellation of promotion of the petitioner and grant of only notional promotion under time bound promotion to him w.e.f. 1.4.1981, the Accountant General issued the impugned letter contained in Annexure-9, directing for recovery of the amount excess paid to the husband of the petitioner between the period of 1.4.1981 to 27.3.1987. Being aggrieved by the order of the Accountant General directing for recovery of the excess amount paid to the husband of the petitioner, petitioner has moved this Court. She has also challenged the order cancelling the promotion of her husband, as contained in Annexure-5, as stated hereinabove. The contention of the learned counsel for the petitioner is that the resolution of the Government dated 27.3.1987 which was made applicable in the case of husband of the petitioner for granting notional promotion only under time bound 5 promotion scheme with financial benefits only from the date of resolution was not applicable to her husband since the said resolution dated 27.3.1987 provided for counting of services of an incumbent in the work charge establishment also for granting time bound promotions on completion of 10 years and 25 years of service, as the case may be. On the other hand, the services of the husband of the petitioner as work charge establishment was not at all required to be counted for grant of time bound promotion to him as he had already been regularized w.e.f. 1.4.71. Therefore, as per the resolution of the Government dated 30.12.1981 providing for time bound promotion for regular employees of the Government, he was entitled for promotion and all monetary benefits on completion of 10 years regular service under the Government which came into effect on 1.4.1981 itself. Since the period of service of husband of the petitioner while in work charge establishment was not required to be included in computing his 10 years service for grant of such promotion, the resolution dated 27.3.1987 6 relied upon by the respondents for denying monetary benefits to him was not at all applicable to him. Learned counsel for the respondents refers to a chart enclosed with the counter affidavit of respondent no.3 to show that the monetary benefits as per the claim of the petitioner and calculated by the department in terms of the order passed comes to the same. However it is not denied by the respondents that in terms of Annexure-9, the order of the Accountant General, the amount paid to the husband of the petitioner between the period of 1.4.1981 to 27.3.1987, stands recoverable from the family pension of the petitioner. After considering the rival submissions and going through the resolution of Government dated 27.3.1987, it is apparent that the said resolution is not applicable, so far as case of the husband of the petitioner is concerned. His service was regularized w.e.f. 1.4.1971 itself. He became regular Government servant and in that capacity after completing 10 years service he 7 was squarely covered by the resolution of the Government dated 30.12.1981 under which he was entitled for time bound promotion w.e.f. 1.4.1981 till all monetary benefits. Therefore, the reliance placed by the respondents on the resolution dated 27.3.1987 for denying monetary benefits to the husband of the petitioner for that period is not sustainable. In the circumstances, Annexure-5 to the extent providing for grant of monetary benefits to the husband of the petitioner w.e.f. 27.3.1987 is quashed. Resultantly, the order, Annexure-9, issued by Accountant General for recovery of excess payment made to the husband of the petitioner from her family pension is also quashed. In case any recovery has been made from the family pension of the petitioner on this ground, the same shall be refunded to her. So far as calculation of other monetary benefits on the basis of time bound promotion given to the husband of the petitioner w.e.f. 1.4.1981 is concerned, the same is left open for the Accountant General to calculate and pass 8 appropriate orders fixing the family pension of the petitioner on that basis and issue necessary authority slip for the same and arrears on this account, if any, shall also be paid to the petitioner. The Accountant general must complete the exercise in view of the findings of this Court and issue necessary authority slip for payment of arrears to the petitioner within two months from the date of receipt/production of a copy of this order. In the result, this writ application is allowed with above observations and directions. Arvind/ ( J. N. Singh, J.)