IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9550 of 1997 SHEO BACHAN PRASAD son of Sri Rajandhari Prasad, at present posted as an Assistant Teacher in Government Middle School Shyampur Bhatha Pokhar, Anchal- Siwan, District- Siwan…. Petitioner. Versus 1. THE STATE OF BIHAR 2. The District Superintendent of Education, Siwan. 3. The Head Master, Government Middle School, Shyampur, Bhatha Pokhar, Anchal- Siwan, District- Siwan. … Respondents. ----------- 7. 29.7.2010 Heard learned counsel for the petitioner and learned counsel for the State. The prayer of the petitioner in this writ petition reads as follows; “(i) That, this is an application for issuance of an appropriate writ/writs in the nature of certiorari for quashing the order contained in Memo No. 2051 Siwan dated 29.9.1997 issued by the District Superintendent of Education, Siwan, Whereby and whereunder he has directed the petitioner to deposit the amount of arrears given to him in persuade of his promotion with effect from 1.4.1982 and for the other necessary relief/reliefs on the basis of the facts and circumstances of the case stated hereinafter.” With regard to the aforementioned prayer learned counsel for the petitioner would submit that when the petitioner was given promotion in compliance of order of this Court in C.W.J.C. No. 1374 of 1993 and that too 2 with retrospective effect vide Annexure-1 to the writ application, Office Order dated 27.9.1995 and the petitioner was also paid his consequential benefit by way of salary and allowance with effect from the date the petitioner was given such promotion i.e. 1.4.1982, there would be no justification for passing the impugned order dated 29.9.97 seeking to recover the arrears of salary of the promotional post. In this context, reliance has been placed by learned counsel for the petitioner on the judgment of this Court in the case of Awadesh Singh vs. State of Bihar & Ors., reported in 2005(1) PLJR 297 and an order of this court dated 9.4.2010 passed in CWJC No. 17477 of 2009 (Balindra Singh vs. State of Bihar & Anr.) Counsel for the respondents, on the other hand, with the help of counter affidavit has pointed out two things in support of the impugned order, namely, that the financial benefit normally in promotion given even from retrospective effect in terms of Rule 58 of Bihar Service Code read with State Government Circular dated 4th April 1985 could not have allowed the petitioner to draw the benefit for promotional posts with retrospective 3 effect unless prior approval was taken from the competent authority of the State Government. Counsel further explains that normally such benefit can be claimed if such promotions were given to the juniors of the petitioner and that too with financial benefit. In this context, he has also placed reliance on paragraph 5 of the counter affidavit wherein it has been categorically stated that no person junior to the petitioner was ever given the benefit of Graduate Trained Scale of pay and therefore the petitioner could not have been made entitled to draw the amount by way of arrears from 1982 to 1995. Normally, this issue could have been decided by this Court had the petitioner placed full facts before this Court by placing the relevant information and documents. The petitioner on the contrary has suppressed even the order of this Court in C.W.J.C. No. 1374 of 1993 on the basis of which it has been claimed by him that he was given promotion with retrospective effect i.e. 1.4.1982. He has again suppressed the materials fact that he was also given a show-cause notice before passing of the impugned order on 16.9.1997 and infact he had filed a reply thereto on 28.2.1997. All these relevant facts 4 have not been brought on record by the counsel for the petitioner and suppression of materials facts by the petitioner would go to show that the plea which has been now raised by the petitioner was never placed by him before the competent authority. Normally in such cases when the respondents have also taken a plea that no junior to the petitioner was given such respective promotion with financial benefit, the petitioner will not be entitled for payment of arrears of promotional post in view of the clear bar under Rule 58 of the Bihar Service Code read with Circular on the subject issued by the State on 4th April 1985 prohibiting the grant of promotion with retrospective effect along with financial benefit. Counsel for the petitioner, however, in course of submission would submit that though the petitioner has not given any specific name of his junior in the rejoinder affidavit but as the petitioner has stated that several juniors have been given such retrospective promotion with financial benefit, the petitioner should be given an opportunity to establish the same before the competent authority i.e. District Education Establishment 5 Committee through the District Superintendent of Education, Siwan. In view of fact that recovery of excess amount paid to the petitioner has been stayed by an interim order of this Court dated 27.10.1997 in this case, this Court only by way of an indulgence to the petitioner would allow such prayer by giving an opportunity to the petitioner to file a representation within a period of one month from the date of receipt/production of a copy of this order to the District Superintendent of Education naming the persons who were junior to him and yet were given retrospective promotion with financial benefit prior to the petitioner. If such promotion of alleged juniors has remained valid till date and has not been rescinded or cancelled, the petitioner will not be definitely liable to refund the amount of excess salary drawn by him but if this plea is found to be incorrect, the petitioner will have to refund the entire amount which may be recovered from his salary and/or retirement benefit in easy instalment not exceeding Rs.500/- per month. The interim order of this Court passed on 6 27.10.1997 will continue till the decision of the District Education Establishment Committee which will take its final decision after the representation is filed by the petitioner and is processed by the District Superintendent of Education for its being placed before the Committee. In the event the petitioner will not file such a representation within the aforesaid period, the authority will be at liberty to implement the impugned order in question which has been temporarily kept. With the aforementioned observation and direction, this writ petition is disposed of. Let a copy of this order be sent to the District Superintendent of Education, Siwan for its strict compliance. kanchan/ (Mihir Kumar Jha, J.)