IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.8274 of 1998 1. Shri Kamla Singh, son of late Laldeep Singh, retired Headmaster, resident of village Shrikrishna Nagar, P.S. Motihari Town, District East Champaran at Motihari 2. Gautam Prasad Shrivastava, son of late Ram Narayan Prasad, retired Headmaster, resident of village Shrikrishna Nagar, P.S. Motihari Town, District East Champaran at Motihari 3. Ramakant Prasad Singh, son of late Rameshwar Prasad Singh, retired Headmaster, resident of village + P.O. Saraiya Gopal P.S. Patahi, Agrawa Naya, District East Champaran, Motihari 4. Raghunath Singh, son of late Fulena Singh, retired, resident of village + P.O. Jasauli Patti, Anchal Kalyanapur, District East Champaran 5. Ram Lakhan Singh, son of late Ramanand Singh, presently posted in Radhashwami, Madhya Vidyalay, Mehasi, District East Champaran 6. Dayanand Singh, son of late Chetharu Singh, presently posted in Rajkiya Madhya Vidyalay Katahariya, Kalyanapur, District East Champaran 7. Balnarayan Giri, son of late Ramswarup Giri, resident of village + P.S. Pakaridayal, District East Champaran 8. Sumeshwar Singh, son of late Alakh Singh, presently posted in Parathamik Vidyalay, Darmaha Kalyanpur-2, District East Champaran 9. Abdur Rashid Kuraishi, son of late Mod. Ismail Kuraishi, presently posted in Rajkiya Madhaya Vidyalay, Anchal Turkaulia, District East Champaran 10. Badri Raut, son of late Bishun Raut, presently posted in Madhya Vidyalay, Chatiya, Areraj, District East Champaran 11. Shri Chintamanti Pandey, son of late Ram Surat Pandey, presently posted in Rajkiya Madhya Vidyalay, Bharwalia Paharpur, District East Champaran 12. Abdul Ajij Ansari, son of late Bali Mahammad, retired, resident of village + P.O. Fenahara, District East Champaran 13. Bacha Dubey, son of late Jugal Dubey, presently Rajkiya Madhya Vidyalay Jogia, Anchal Harsidhi, District East Champaran 14. Bairister Prasad Singh, son of late Shobhan Singh, resident of village + P.O. Gayanabdhi, Ibrahimpur, District East Champaran 15. Udhav Tripathi, son of late Bhagwat Tripathi, retired, resident of village + P.O. Nonfarwa, Anchal Patahi, District East Champaran 16. Janardan Sharma, son of late Ram Udar Singh, retired teacher, resident of village + P.O. Pipra, Kalyanpur, District East Champaran 17. Basudeo Prasad, son of late Jhaman Mahto, retired, resident of village + P.O. Kritpur, Harsidhi, District East Champaran 18. Sitaram Das, son of late Anup Das, presently posted in Rajkiya Madhya Vidyalay Dekaha Dehat District East Champaran 19. Ramkrishna Prasad Yadav, son of late Jainarayan Rai, retired, resident of village + P.S. Bankatawa, Ghorasahan, District East Champaran 20. Most. Jirawati Devi, wife of late Suresh Narayan Mishra, present in Rajkiya Madhay Vidyalay Belwa, Anandiganj, Raxaul, District 2 East Champaran 21. Ram Ayodhya Prasad, son of late Kanti Ram, presently posted in Rajkiya Madhya Vidyalaya, Tinkoni, Chhaurodano, District East Champaran 22. Satyadeo Singh, son of late Bhanushdhari Singh, presently posted in Rajkiya Madhya Vidyalay, Patahi (Kanya) District East Champaran 23. Tej Narayan Singh, son of late Munshi Singh, presently posted in Rajkiya Madhya Vidyalay, Nonforwa Patahi, District East Champaran 24. Shri Ram Sagar Thakur, son of Shri Jagat Narayan Thakur, presently posted in Amrit Madhya Vidyalay Chhatauni, District East Champaran, Motihari 25. Shri Ram Chandra Tiwari, son of late Ramdhari Tiwari, presently posted in Rajkiya Madhya Vidyalay, Bokane Kala, Patahi, District East Champaran 26. Shri Kashi Narain Singh, son of late Jugeshwar Singh, presently posted in Rajkiya Madhya Vidyalay, Melawa, Madhuban, District East Champaran 27. Shri Chuman Nath Tiwary, son of late Rameshwar Nath Tiwary, retired, resident of village + P.O. Maguraha, District East Champaran 28. Shri Nathuni Prasad, son of Basudeo Prasad, retired, resident of village + P.O. Damodarpur, District East Champaran 29. Girija Nandan Pandey, son of Sri Rijhan Pandey, presently posted in Rajkiya Madhya Vidyalaya, Ajagari, Turkaulia, District East Champaran 30. Sachidanand Prasad, son of late Jaideo Prasad, presently posted in Rajkiya Madhya Vidyalaya, Gamharia, Kala, District East Champaran 31. Jagat Prasad Mishra, son of late Baidya Nath Mishra, presently posted in Madhya Vidyalaya, Jadopur, District East Champaran 32. Ram Bachan Singh, son of late Daroga Singh, presently posted in Rajkiya Mdhya Vidyalay, pakaridayal, District East Champaran 33. Lalan Choubey, son of late Mahadeo Choubey, presently posted in Rajkiya Kanya Madhya Vidyalay, Harsidhi, District East Champaran 34. Raghunath Prasad, son of late Pathar Singh, resident of Madhya Vidyalay, Adapur, District East Champaran 35. Panchanand Singh, son of Ramnandan Singh, presently posted in Madhya Vidyalay Karsahia, Anchal Dhaka, District East Champaran 36. Sumitra Devi, wife of late Raghubansh Prasad Singh, presently posted in Rajkiya Madhya Vidyalay Chhatauni Colony, Motihari, District East Champaran 37. Bindeshwari Singh, son of Ram Swarup Singh, presently posted in Madhya Vidyalaya, Parsauni, District East Champaran 38. Amrullah, son of Md. Abdul Rahman, presently at and P.O. Mahuwaha Piparari, Shivhar, District East Champaran 39. Mahendra Sah, son of late Bigu Sah, Assistant Teacher, Dewapur Govt. Middle School, P.S. Patahi, District East Champaran … Petitioners Versus 3 1. The State Of Bihar through the Commissioner cum Secretary, Human Resources Development Department, Govt. of Bihar, at New Secretariat, Patna 2. The Director (Primary Education) cum Joint Secretary, Human Resources Development Department, Bihar at New Secretariat, Patna 3. The District Magistrate, East Champaran at Motihari 4. The District Superintendent of Education, East Champaran, Motihari 5. The Treasury Officer, East Champaran, at Motihari … Respondents ---------------------------------- 5. 25.8.2011 Having heard Mr. Umakant Shukla, learned counsel for the petitioners and the counsel for the State as with regard to challenge of these 39 petitioners to an order of the Director, Primary Education dated 4.7.1998, as contained in Annexure 11, whereby and whereunder the time bound promotion given to the petitioners have been reassessed and decided adverse to their interest. Mr. Umakant Shukla, learned counsel appearing on behalf of the petitioners, while assailing the impugned order has raised mainly three contentions. He has firstly submitted that the petitioners‟ second time bound promotion was only in issue and therefore, the Director, Primary Education could not have gone into the validity of grant of first time bound promotion to any of the petitioner. For this purpose he has placed reliance on the order of this Court dated 3.7.1997 passed in C.W.J.C.No. 5525/1994. It would be however difficult for this Court to accept the aforesaid submission for a simple reason that the operative portion of the order dated 3.7.1997 reads as follows:- “5. In the present case to decide as to whether one or other petitioner is entitled for any one or both time bound promotion or not. The following factors 4 are to be seen: (1) The date of initial appointment of petitioner, post against such appointment was made and the scale of pay in which such appointment was made/ (2) Whether any one or other regular promotion to next higher grade was granted to any one or other petitioner. (3) If it is found that any one or other petitioner has not been provided with any higher grade by 1st April, 1981, the effective date on which the pay revision Committee‟s recommendation came into effect, but has completed ten years of service, then such persons is to be granted next higher grade by way of first time bound promotion with effect from 1.4.1981 or the date of completion of ten years of service, whichever is later. Similarly, if it is found that any one or other petitioner was not granted second promotion in his service career but has completed 25 years of service, then in that case, such petitioner is to be granted second next higher grade, by way of second time bound promotion, on completion of twenty fifth year of service. 6. Accordingly, the impugned order dated 23.3.94 (Annexure 9) is set aside. The matter is remitted to the respondent Director, Primary Education, Bihar, Patna to decide the claim of each and every individual petitioner. Such decision is to be taken separately with respect to one or other petitioner. The petitioners will file their individual representation separately before the Director, Primary Education, Bihar, Patna showing therein all the details of their service career, including the details as mentioned in the proceeding paragraph. 5 They will also enclose the copy of their order of appointment/ service record and order of regular promotion/ time bound promotion, if any granted in the meantime. The Director, Primary Education, Bihar, Patna may verify the service record of the petitioners from the concerned District Superintendent of Education. The decision is to be taken within a period of six months from the date of receipt of such representation. It is needless to say that if the petitioners are provided with their benefits of time bound promotion, in accordance with law, then they will also be entitled for consequential benefit of the same, including the arrears of salary on such promotion and appropriate post retirement benefit and arrears thereto in the case of retired benefit and arrears thereto in the case of retired petitioner, if any.” From the reading of operative portion of the aforementioned order it is more than clear that the issue which was before this Court was the entitlement on either one or both time bound promotion and therefore, the order of remand was also made for evaluation of both time bound promotion. Consequently this Court would find no merit in the first submission that the Director, Primary Education could not have gone into the issue of grant of two time bound promotions. Grant of time bound promotion has a financial impact and if a person is not entitled to get such a promotion as has been given by the field authorities in contravention of the Government policy, nothing would stand in the way of the Government to pass a fresh order either by taking away the benefit of such time bound promotion or revising it from 6 a subsequent date on which the person becomes entitled for grant of such time bound promotion. In the present case when the whole issue was remitted to the Director, Primary Education he was absolutely justified in examining the entire service history of the petitioner for the purposes of recording his finding as with regard to validity of promotion of first and second time bound promotion. Mr. Shukla then has proceeded to submit that the Director, Primary Education has not maintained the same norms and in cases of a few persons while allowing their both time bound promotion he has adopted a different standard while denying the same to the petitioners. For this purpose he has cited the example of Yadav Lal Prasad at serial No.5 of the impugned order, Serial No. 37 Gopalji Kumar and Serial No.5 of the interveners Ahmad Siddique. It would be relevant to first quote the consideration made by the Director, Primary Education in respect of all the aforesaid thee persons, which reads as follows: ^^5 Jh ;kno yky izlkn] ls0fu0iz0v0 6 fu;qfDr frfFk 11-12-59 Aizv0A firk Lo0 y{eh izlkn e/; fo|ky; AvkbZ0,0 VzsaM osrueku esaA f>VdfV;k] vapy egas'kh fu;qfDr ink0&ftyk f'k{kk v0 Lukrd izf'k0 osrueku 26-12-69 izFke dkyc} izksUufr 1-4-81 ¼ 940&1660½ f}rh; dkyc} izksUufr 11-12-84 ¼1000&1820½ fu"d"kZ& f'k{kd dh fu;qfDr iz0 v0 ds in ij vkbZ0,0 izf'kf{kr osrueku esas tks ml le; iz0 v0 dk osrueku Fkk esa gqbZ gSA jkT; ljdkj ds fu.kZ;kuqlkj e/; fo|ky; ds iz0 v0 dk in Lukrd izf'kf{kr osrueku dk in dj fn;s tkus ds dkj.k f'k{kd dks ;ksX;rk izkfIr dh frfFk ls in dk osrueku Lohd`r fd;k x;kA ftls izksUufr ugha ekuk tk ldrk gSA f'k{kd dks nh xbZ izFke ,oa f}rh; dkyc} izksUufr fu;ekuqlkj lgh gSA 37 Jh xksikyth dqekj] iz0v0 firk 43 fu;qfDr frfFk 3-9-58 AvkbZ0,0iz0A Jh fo".kq dekj fu;qfDr ink0&ft0f'k0v0 Lukrd e/; fo|ky;] lkso;k izf'k0 osrueku 31-5-75 ¼387&600½ izFke dkyc} izksUufr 31-5-85 iqu% 1- 4-81 ls la'kksf/kr ¼940&1660½ f}rh; dkyc} izksUufr 1-4-84 ¼1000&1820½ fu"d"kZ& f'k{kd dh fu;qfDr iz0v0 ds in ds fo:n~/k gqbZ gSA Lukrd dh ;ksX;rk izkIr djus ds dkj.k Lukrd izf'kf{kr dk osrueku fn;k x;k tks 7 izksUufr ugha gSA f'k{kd dks nh xbZ izFke ,oa f}rh; dkyc} izksUufr fu;ekuqlkj lgh gSA 5- Jh vgen flf}dh] iz0 v0 7 fu;qfDr frfFk 1-7-60 AvkbZ0,0A firk&Lo0 deky gd ink0&v/;{k] voj izeaMy f'k{kk ink0 e0fo0] 'ks[kkSuk izk0v0 ds :i esaA Lukrd iz0 f'k0 osrueku 17-12-72 izFke dkyc} izksUufr 17-12-89 fu"d"kZ& f'k{kd dh fu;qfDr vkbZ0,0 izf'kf{kr osrueku esa iz0v0 ds in ij rRdkyhu fu;e ds vuqlkj fu;qfDr gqbZ FkhA ckn esa iz0 v0 dk ;ksX;rk ,oa osrueku Lukrd izf'k0 dj fn;k x;kA foHkkxh; i=kad 1506 fnukad 12-5-70 ds }kjk oSls iz0 v0 dks Lukrd izf'k{kd dk ;ksX;rk izkIr dj gksus ds ckn iz0 v0 dk fofgr osrueku nsus dk funs'k fn;k x;kA Lukrd izf'k0 osrueku dk izkfIr izksUufr dk Js.kh esa ugha vkrk gSA nh xbZ dkyc} izksUufr fu;ekuqlkj lgh gSA** Mr. Shukla in fact is of the view that if these three persons could be allowed to retain the benefit of their time bound promotion there was no reason for other petitioners to be denied the same benefit. He has also compared the cases of the aforesaid three persons with petitioners no. 1, 2 and 6 whose consideration by the Director in the impugned order needs to be extracted in order to appreciate his submission. As a matter of fact while considering the cases of three petitioners no. 1, 2 and 6 it has been recorded as follows: ^^10 Jh deyk flag] ls0fu0iz0v0 AA fu;qfDr frfFk 1-5-58 Aes0izf'k0A firk Lo0 ykynhi flag fu;qfDr ink0&ft0f'k0 v/kh{kd vkbZ0,0 iz0 osrueku 9&5&69 Lukrd iz0 osrueku 26&6&72- ¼387&600½ f}rh; dkyc} izksUufr 26&6&85 ¼1000&1820½ fu"d"kZ& f'k{kd dh fu;qfDr es0 izf'k0 osrueku esa gksus ds ckn vkbZ0,0 izf'kf{kr ,oa ch0,0 izf'kf{kr ds osrueku esa izksUufr izkIr gSA vr% dh xbZ izFke ,oa f}rh; dkyc} izksUufr vuqekU; ugha gSA 71 Jh xkSre izlkn JhokLro lsok0fu0 88 fu;qfDr frfFk 1-7-53 iz0v0] firk Lo0jke uk0 izlkn Aes0izf'k0A fu;qfDr ink0& e/; fo|ky;] ?kksM+klkgu v/;{k ftyk i"kZn vkbZ0,0 viz0 dk osrueku 1-4-86 ch0,0viz0 osrueku 18-12-62 ch0,0 izf'kf{kr osrueku 14-8-66 izFke dkyc} izksUufr 1-4-81 ¼940&1660½ f}rh; dkyc} izksUufr 1-4-84 ¼1000&1820½ fu"d"kZ&f'k{kd dh fu;qfDr es0 izf'k0 osrueku ds in ds fo:n~/k vizf'kf{kr f'k{kd ds :Ik esa gqbZ gSA f'k{kd dks fu;qfDr ds i'pkr vkbZ0,0 vizf'kf{kr 8 ch0,0vizf'k0 ch0,0 izf'kf{kr dk osrueku izkIr gks x;k gSA fu;ekuqlkj dkyc} izksUufr;ka vuqekU; ugha gSA nh xbZ dkyc} izksUufr;ka lgh ugh gSA 54- Jh n;kuan flag] iz0v0 66 fu;qfDr frfFk 22-10-56 Aes0viz0A firk&Lo0 psp: flag fu;qfDr ink0 ft0 f'k0 v0 esSfVzd e/; fo|ky;&dVgfj;k izf'k0 osrueku 1-4-65 Lukrd izf'k0 vapy&dY;k.kiqj osrueku 21-7-81 ¼940&1660½ f}rh; dkyc} izksUufr ¼1000&1820½ fu"d"kZ& f'k{kd dh fu;qfDr es0 izf'k0 osrueku ds in ds fo:n~/k vizf'k0 f'k{kd ds :i esa gqbZ gSA f'k{kd dks izkjafHkd fo|ky; f'k{kd laoxZ ds mPpre in dk osrueku izkIr gks pqdk gSA vr% dkyc} izksUufr vuqekU; ugha gSA nh xbZ izFke ,oa f}rh; dkyc} izksUufr fu;ekuqlkj lgh ugha gSA** Thus it is too obvious that there is a basic difference in the three cases of Yadav Lal Prasad and two others inasmuch as all of them were substantively appointed as Headmaster and as they were given the initial I.A. and I.Sc. trained scale of pay and later on when the qualification for the post of Headmaster had been enhanced to graduate trained, they were given such benefit in view of the Government letter no. 1506 dated 12.5.1970 prescribed grant of pay scale of the post of Headmaster of B.A. trained only with effect from the date they would acquire the qualification of B.A. trained. In other words they were not given any promotion rather the post of Headmaster itself was upgraded and they had got the benefit of higher pay scale only by way of being holder of such post and fulfillment of the qualification. In their case they were Headmaster either in the beginning or at the end of their career. Therefore, it cannot be said that they had received any promotion. To such promotions the scheme of time bound promotion was squarely applicable, inasmuch as the Government Resolution dated 30.12.1981 in paragraph 11 had contemplated the situation as with regard to grant of such time bound promotion to a person who had 9 stagnated on a particular post without being promoted in last ten years and/or again in 25 years. That being the basic criteria in paragraph 11 of the Government resolution dated 30.12.1981, as contained in Annexure „A‟, nothing would be left for speculation of this Court that the case of the petitioners is not at all comparable, inasmuch as the three cited cases of the petitioners no. 1, 2 and 6 would itself go to show that their appointment was made on the post of Assistant Teacher. An Assistant Teacher has always promotional post in the Matric trained scale, I.A. trained scale and B.A. trained scale. In 1982 there was also a concept of grant of untrained higher pay scale and therefore, for them it cannot be said that they would be also in the category of three persons including Yadav Lal Prasad whose cases have already been examined and explained above. Once this aspect would become clear, the alleged plea discrimination in the matter of giving benefit of time bound promotion would automatically vanish. The last submission of Mr. Shukla as with regard to the petitioners being not liable to refund any amount even when their two time bound promotion or one of them were found to be bad, has to be appreciated in the backdrop of the fact that such time bound promotions were allowed at the district level by the District Superintendent of Education in violation of the Government circular dated 30.12.1981 without obtaining prior approval of the Finance Department which was a condition precedent for grant of such time bound promotion. Such adhoc or provisional time bound promotion given in each of the petitioner 10 as is clearly mentioned in their order of promotion, as contained in Annexure 3, which was easily capable of being revised with the consequence of recovery of such amount. In any event the question will be one of entitlement and if an employee cannot justify the entitlement, the authority will be well within their power to make recovery as was held by the Full Bench in the case of Ram Binod Singh & ors. vs. Bihar State Electricity Board & ors., reported in 2007(3) PLJR 398. In addition to the aforementioned aspects what would be relevant is the order of remand in the case of the petitioners which did not prohibit the respondents from making recovery even if the petitioners were not found entitled to retain such promotion. The reliance placed by the learned counsel for the petitioners on the order of the Finance Department in its circular dated 6.3.1990 is also wholly misplaced, inasmuch as the condition imposed therein by the Finance Department has not been fulfilled in this case. It has to be noted that in paragraph 4 of the circular dated 6.3.1990 the following stipulations were made: ^^;fn fdlh ekeys esa izFke laoxZ esa dh x;h lsok ds vk/kkj ij 10@25 o"kZ lsok dh x.kuk djds izFke@f}rh; dkyc} izksUufr vuqekU; dj fn;k x;k gks vkSj foHkkx dh lgefr izkIr dj vkSipkfjdrk;sa iwjh dj yh x;h gks rks muds ekeys esa bl ds QyLo:Ik ;fn vf/kd Hkqxrku dk ekeyk curk gks nks vf/kd Hkqxrku dks olwy dh tk;sxhA ijUrq muds ekeys ij iqufoZpkj djus ij ;g ik;k tk; fd u;s lEoxZ esa nh x;h frfFk ls 10@25 o"kZ vcrd iwjs ugha gq, gks rks nh x;h izksUufr dk ykHk vc ls dj fn;k tk; ijUrq 10@25 o"kZ dh lsok u, laoxZ esa iwjk gksus dh frfFk ls osru o`fn~/k lfgr dkycn~/k izksUufr dk ykHk feyus yxsxkA** From the perusal of the said provision it would be clear that as on 6.3.1990 when the Government had provided a clause for not making recovery it had strictly also laid down that a 11 person already granted first or second time bound promotion with the approval/ concurrence of the Finance Department would not be subjected to recovery but here in this case the order of promotion of the petitioners was issued on 31.3.1990 and that too on a provisional basis without obtaining concurrence of the Finance Department. The submission of Mr. Shukla that in paragraph 28 a statement has been made that all the promotions given to the petitioners were with the prior approval of the Finance Department having been not controverted by the respondents in the counter affidavit, the said aspect will be deemed to have been admitted is not acceptable to this Court, inasmuch as if 39 petitioners had joined together in one writ petition and claimed that for each of them the Finance Department had given such concurrence at least even one of them could be produced their such concurrence by the Finance Department. It is well settled that in a writ petition the fact which is capable of being proved with the help of document has to be annexed by the writ petitioner in absence whereof the same cannot be accepted to be a gospel truth. Reference in this connection may be made to the case of Bharat Singh & ors. vs. State of Haryana & ors., reported in AIR 1988 S.C. 2181. Additionally, this Court would find that in the case of the petitioners such promotion was wholly provisional in nature and therefore, it cannot be said that the condition imposed by the Finance Department in its circular dated 6.3.1990 was complied. That being so, this Court would find that the 12 Government was entitled to recover the amount of excess payment from the petitioners in view of the impugned order passed by the Director and to that extent this Court does not find any flaw in the impugned order also directing for recovery of such amount. At this stage Mr. Shukla would submit that even if everything is accepted the petitioners had continued to avail the benefit of first time bound promotion for a long period of time and this could not have been disturbed by the impugned order. As has been noted above, this Court in the aforesaid inter party order had itself directed for going into the eligibility of the petitioners of both the time bound promotion and therefore, it would be difficult for this Court to apply the principle as adopted in the case of Bihar State Transport Corporation vs. Yasoda Devi, reported in 1998(3) PLJR 331, which was heavily relied by the learned counsel for the petitioners. From the facts of that case it would be clear that the writ petitioners have been subjected to reversion from the higher post without observance of the principles of natural justice and their promotion on higher pay was cancelled/ recalled or revoked after a long period of seven years. It was in this regard that the Division Bench had held that as the promotion was given without playing any fraud upon the Corporation and was because of mistake committed by the authority of the Corporation and therefore such promotion should not have been interfered. One would fail to understand as to how the ratio of the aforesaid judgment in the case of Yasoda Devi (supra) can be made applicable in the facts of the case of the petitioners where their 13 time bound promotion given to them had been earlier cancelled and when they had assailed the orders, this Court had itself remanded the matter as a whole for considering their both first and second time bound promotion. The inter- party order between the petitioners and the State will also equally bind the petitioners and therefore, such submission can not be now accepted. For the reasons recorded above this Court does not find any merit in this application. This application is, accordingly, dismissed. There would be, however, no order as to costs. (Mihir Kumar Jha,J.) Surendra/