IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8791 of 2003 DASHRATH SINGH, Son of Late Shahdeo Singh, Resident of Village-Malpur, P.S. Marachi, District- Patna. Versus 1.THE STATE OF BIHAR 2.The Secretary, Planning, Govt. of Bihar, Patna. 3.The Director, Statistics and Evaluation Govt. of Bihar, Old Secretariat, Patna. 4.The Secretary, Department of Finance, Govt. of Bihar, Patna. 5.The Accountant General, Bihar, Patna. 6.The Senior Account Officer, Bihar, Patna. ----------- 4 7/1/2010 Heard counsel for the petitioner, counsel for the State as also counsel for the Accountant General. Prayer of the petitioner in this writ application reads as follows:- “(A) For issuance of appropriate writ/order or direction quashing the order issued by and under the signature of the respondent no.3 the Director Statistics and Evaluation Govt. of Bihar, Patna through Memo no.1068 dated 2.5.2003 by which the first and second time bound promotion given to the petitioner, in his service period, has been cancelled and pay has been fixed at lower rate and the respondent No.5, the Accountant General, Bihar has been requested to fix the pension of the petitioner at the revised lower scale of pay as contained in Annexure-2 to this petition. (B) For issuance of appropriate writ/order or direction quashing the order communicated through letter No.Pen-8-252 dated 17.6.2003 by which the respondent No.6 has directed the respondent no.3 to adjust the amount earlier paid on the basis of the revised fixation of pay on lower scale due to cancellation of second time bound promotion given to the petitioner who retired from service on 31.3.1993. (c) For issuance of appropriate writ/order or direction commanding the 2 respondents not to recover the amount from the petitioner who retired from service on 31.3.1993.” Counsel for the petitioner with regard to the aforementioned prayer has submitted that the petitioner had retired from service after being given two time bound promotions way back on 31.1.1993 and as such the impugned order passed in the year 2003 seeking to not only take away the financial benefit already given to the petitioner by way of first and second time bound promotions, but also by making recovery and consequentially reducing the retirement benefit including the monthly pension, is shocking and arbitrary especially when such actions and consequently impugned orders were passed without following the principles of natural justice. Counsel in this context has asserted in paragraph 13 of the writ application that no explanation or any show cause was asked from the petitioner prior to passing of the impugned order. Counsel for the State with reference to the impugned order has submitted that grant of time bound promotion is a matter of policy, which was at the relevant point of time governed by the resolution of the State Government dated 30.12.1981. He has further referred to the facts in the counter affidavit stating therein that the petitioner had already been given two promotions, firstly 3 from Junior Field Investigator to the Compiler in 1962 and again to the post of Junior Statistical Supervisor in 1987 and as such the petitioner had been given two regular promotions and therefore he was not entitled to any further time bound promotion either first or second. Counsel has also stated that the petitioner cannot make any premium of his retirement inasmuch as his order of second time bound promotion in fact was passed only after his retirement vide notification dated 30.9.1999, whereas, the petitioner had retired on 31.3.1993. Counsel for the State therefore proceeds that as all the order of time bound promotion including the one in favour of the petitioner had contained a clause providing therein that in case of detection of anamoly in the grant of such time bound promotion the government will have right to recover the excess amount paid on account of such time bound promotion the action taken by the respondent in making recovery from the petitioner cannot be faulted especially when such action is not individually confined to the petitioner but also against a large number of persons who were given such illegal benefits of first and second time bound promotions. Counsel also in this context refers to a judgment of this Court exactly of the similar nature in the case of „Siya Sharan Prasad Vs. State of Bihar & Ors‟ in C.W.J.C. No. 9985 of 1999 disposed of on 8.11.2000 4 upholding the action of recovery of illegal benefits of the time bound promotion. In the opinion of this Court, if the petitioner has not denied the facts mentioned in the counter affidavit the presumption would be that the petitioner has little to say on the merits of the case. If the petitioner had already earned two promotions prior to his being given two time bound promotions as well, the petitioner cannot have any justification in retaining the benefits of two subsequent time bound promotions. At the same time, the impugned order was passed in the year 2003 which had effect of undoing certain benefits which were given to the petitioner way back in the year 1991 (First time bound promotion) and in 1995 (by way of second time bound promotion). As the petitioner was to be adversely affected by civil and evil consequences by way of recovery, it was incumbent upon the authorities to at least give an opportunity of hearing to the petitioner before passing the impugned order. Presently, this Court would find that this Court by an interim order dated 10.9.2003 had in this case had restrained the respondents from making any recovery from the petitioner. Consequently, this Court would give liberty to the petitioner to file a representation before the Secretary of the Planning Department (Respondent no.2) 5 explaining as to how he was entitled to two time bound promotions despite his earning two regular promotions on the post of compiler and Junior Statistical Supervisor. The petitioner may bring any additional facts or documentary evidence to the notice of the Secretary of the Department, who thereafter would pass a reasoned order dealing with the stand taken by the petitioner in defence of his retaining the benefits of two time bound promotions. Let it be made clear that this Court has not expressed any final opinion on the merits of the claim of the petitioner vis-à-vis respondents and therefore it would be open for the respondents to pass any order, but of course within the parameters of law. The petitioner, however, must file his representation before the Secretary of the Department within six weeks of the date of receipt/production of a copy of this order and the Secretary should also make all his endeavors to dispose of the same within the 12 weeks from the date of filing of such representation by the petitioner. The interim order passed in favour of the petitioner by this Court on 10.9.2003 staying the operation of impugned order dated 3.5.2003 shall continue till the disposal of the representation of the petitioner but in case no. representation is filed by the petitioner defending his two bound promotion in the aforesaid period, it would be open 6 for the Secretary of the Department to pass his order reiterating the impugned order dated 3.5.2003. With the aforementioned observations/directions this application is disposed of. Abhay Kumar (Mihir Kumar Jha, J.)