IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2219 of 2006 AKHILESHWAR PRASAD SINGH, son of late Sadashiv Singh resident of Mohalla Hatia More Post Office & Polce Station Barbigha District Sheikhpura, Retired Assistant Teacher, High School Barbigha P.S. Barbigha District Sheikhpura Versus 1. THE STATE OF BIHAR 2. The Secretary, Secondary Education, Government of Bihar, New Secretariat, Patna 3. The Director, Secondary Education, Government of Bihar Intermediate Counsel Building Budh Marg, Patna. 4. The Regional Deputy Director of Education Munger Division, Munger. 5. The District Education Officer, Sheikhpura 6. The Incharge Headmaster, high School Barbigha P.S. Barbigha District Sheikhpura. 7. The Accountant General, Bihar Birchand Patel Patna, Patna. 8. The Senior Account Officer, Office of the Accountant General, Bihar, Patna. ----------- For the petitioner :- Mr. Ram Sagar Singh, Advocate. For the State :- Mr. Manoj Kumar Jha, A.C. to G.A.1 For the Accountant General:- Manish Dhari Singh, Advocate ******** 5 05.04.2010 I.A.No.3040 of 2010 This interlocutory application has been filed for substitution of the name of the original petitioner Akhileshwar Prasad Singh who has expired during the pendency of the proceeding, by his legal heirs named in paragraph 3 of the said application. The interlocutory application is allowed. Let the name of the Akhileshwar Prasad Singh be expunged from the proceedings 2 and be substituted by the legal heirs named in paragraph 3 of the interlocutory application. Heard learned counsel for the parties. With the consent of the parties this case has been taken up for final disposal at the stage of admission itself. The petitioner is aggrieved by order as contained in Annexures-1, 2 and 3 of the writ petition. Annexure-1 is the fixation order issued from the office of the Accountant General dated 20.7.2005 revising and refixing the pay scale of the petitioner with effect from 1.1.1996 until his retirement in the light of the circular of the Human Resources Development Department bearing No. 636 dated 18.7.1992. By reason of the said refixation the last salary drawn by the petitioner was reduced from Rs. 10,700/- to Rs. 9,900/-. Annexures-2 and 3 are the orders issued by the Regional Deputy Director of Education and the District Education Officer issuing directions for carrying out the refixation and recovery of the excess salary in the light of the order of the Accountant General, placed at Annexure-1. The petitioner is aggrieved by the orders impugned. Before proceeding further, it would be 3 relevant to mention that this Court by order dated 7.6.2001 had stayed the recovery of the amount in question and thus pursuant to the orders impugned, no recovery has been effected by the authorities but the pension and his pensionary entitlements has been fixed and are being paid on the lower scale in the light of the Annexure-1. As noted above, Annexure-1 has been passed in the light of the Human Resources Development Department resolution No. 636 dated 18.7.1992 which inter alia provides that the services of the teachers of schools, taken over by the State Government, would be counted from the date of grant of recognition by the State. A perusal of the order/direction of the Regional Deputy Director of Education, Munger Division, Munger dated 19.11.2005 placed at Annexure-2 manifests that the school in question was granted permission for establishment on 31.12.1974 and was granted recognition with effect from 28.12.1976. It so appears that initially the petitioner had been granted his first time bound promotion treating his qualifying service with effect from 31.12.1974 being the date of which the school 4 in question was granted permission for establishment and counting 10 years thereafter he was conferred with the first time bound promotion on 31.12.1984. It is after his superannuation on 31.12.2004, when the matter went up for finalization of the retirement benefit that the impugned objection came to be raised at the level of the Accountant General in the light of the circular dated 18.7.1992 of the State Government. Learned counsel for the petitioner submits that the objection raised by the Accountant General is wholly misconceived for the reason that the circular dated 18.7.1992 which is the foundation thereof, never even came into existence on the date when the petitioner was given first time bound and in fact came into effect eight years thereafter. He thus submits that the said resolution which itself came into effect from 18.7.1992, could not have retrospective effect so as to effect a promotion granted to him as back as on 31.12.1984 and the right created thereunder. He further submits that the relevant circular which governs the issue is the circular dated 1.3.1977 placed at Annexure 6 of the writ 5 petition and whereunder the date of appointment of a teacher of taken over schools were held to be the date on which the permission for establishment was granted by the State government. He thus submits that since admittedly the permission for establishment was granted to the school in question on 31.12.1974 as is evident from Annexure-2, hence he has been rightfully granted promotion on 31.12.1984. He thus submits that the shifting of his promotion from 31.12.1974 to 28.12.1986 by relying upon circular dated 18.7.1992 which was not in existence on the date when the promotion was conferred upon him, is wholly illegal, arbitrary and unsustainable in law. Learned counsel for the State supports the impugned action of the authorities and with reference to Annexure-A and Annexure-B of the counter affidavit filed on behalf of the respondent No. 8 submits that the time bound promotion of the petitioner was tested in the light of the Government resolutions and it was found that the school in question had been granted permanent recognition only with effect from 28.12.1976. In that view of the matter, the petitioner was found entitled to his time 6 bound promotion only with effect from 10 years thereafter i.e. on 31.12.1986. He thus submits that in the aforesaid view of the matter and in view of the order granting permanent recognition on 28.12.1976, the action impugned is in accordance with law. I have heard the rival contentions advanced on behalf of the respective parties and considered the materials on record. I find that the sole basis for refixation of the pay scale of the petitioner by the Accountant General, is in the backdrop of the stipulation of resolution No. 636 dated 18.7.1992 of the Human Resources Development Department. Indisputably when the petitioner was granted time bound promotion initially with effect from 31.12.1984 the said circular dated 18.7.1992 of the Human Resources Department was not in existence rather the promotion was granted to the petitioner in the light of the stipulations provided in the circular dated 1.3.1977, Annexure-6. The Accountant General ought to have tested the case of the petitioner in the light of the Circular dated 1.3.1977 which is the relevant circular for deciding the issue under consideration and not the circular dated 7 18.7.1992 which neither was in existence nor had any retrospective effect . In that view of the matter, the refixation order issued by the Accountant General relying upon resolution no 636 dated 18.7.1992 which was not even in existence when the promotions were granted to the petitioner, the refixation order as contained in Annexure-1 as also consequential orders as contained in Annexures-2 and 3 are set aside. The respondents had directed to recalculate and refix the pension and pensionary entitlements of the petitioner on the basis of last salary drawn by him which according to the petitioner is Rs. 10,700/-, and after seeking fresh authorization thereof from the Accountant General, make the payments including the arrears arising by reason of such refixation within a period of three months from the date of receipt/production of a copy of this order. Bibhash (Jyoti Saran, J. )