IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.559 of 2011 Kapil Deo Mehta SON OF LATE PRASAD MEHTA RESIDENT OF PATHARI, P.O. MAULA NAGAR, P.S. ATARI, DISTRICT GAYA PRESENTLY POSTED AS CORRESPONDENCE CLERK, SHAHABAD ROAD DIVISION, ARA. Versus 1. The State Of Bihar 2. THE SECRETARY, ROAD CONSTRUCTION DEPARTMENT, BIHAR, PATNA. 3. THE ENGINEERINCHIEF CUM ADDITIONAL SECRETARY CIM SPECIAL SECRETARY, ROAD CONSTRUCTION DEPARTMENT, BIHAR, PATNA. 4. THE CHIEF ENIGNEER (TRAFFIC)SOUTH BIHAR WING, ROAD CONSTRUCTION DEPARMENT, PATNA. 5. THE SUPERINTENDING ENGINEER, BHOJPUR ROAD CIRCLE, ROAD CONSTRUCTION DEPARTMENT, ARA. 6. THE EXECUTIVE ENGINEER, SHAHABAD ROAD DIVISION, ARA. ----------- 3 12/07/2011 Learned counsel representing the petitioner confines his case to the issue of recovery which is sought to be made because of re-fixation of date of promotion in terms of annexure-8 dated 28.12.2010. He contends that he does not want to seriously contest the issue on the question of promotion due to non passing of the departmental examination in Accountancy but there is one aspect which surely requires consideration by the Court keeping in mind various decisions rendered from time to time where the benefit given to the petitioners of - 2 - those cases of monetary kind based on the earlier order of promotion cannot be taken away after more than 20 years. There are atleast two decisions which are pressed into service by the learned counsel for the petitioner. One is by the Apex Court in a matter originating from the State of Bihar which was the case of Syed Abdul Kadir Vs. State of Bihar and othes reported in 2009(2) P.L.J.R., 74(S.C.). This was a case where many a teachers got the benefit of higher pay scale of some kind on miscalculation in matter of application of certain fundamental Rules. Matter traveled from the High Court to the Supreme Court and the Hon’ble Apex Court declared that since this benefit has not accrued on the basis of any fraud or misrepresentation committed on behalf of those employees, recovery at such a belated stage would be un-reasonable. Similar views have also been expressed by the Full Bench of this Court in the case of Ram Binod Singh Vs. Bihar State Electricity Board and others reported in 2007(3) PLJR, 398. Since both the decisions still subsist and the - 3 - views expressed by the Supreme Court as well as the Full Bench of this Court have not gone any change, submissions having been made on behalf of the State in support of the decisions, so far recovery is concerned, they will have to be restrained from doing so. In view of the ratios of the two decisions in favour of the petitioner, the impugned order to the extent of recovery is hereby set aside. If any recovery has been made, re-payments would be made to the petitioner. If not, then rest of the benefits will flow on the basis of the new date fixed for promotion in matters of grant of retiral dues. This writ application is allowed to the extent indicated above. AMIN/ (Ajay Kumar Tripathi, J.)