IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9474 of 2006 MAHMOOD ALAM, son of Abdul Hafiz, Shamin Apartment, Flat No. 406, Mohalla Khajpura P.S. Shastrinagar, P.O. Bihar Vetenary College, Patna, District Patna … Petitioner Versus 1. THE STATE OF BIHAR 2. The Commissioner cum Secretary, Health and Family Planning Department, Govt. of Bihar, Patna 3. The Additional Secretary, Health and Family Planning Department, Govt. of Bihar, Patna 4. The Director in Chief, Health Services, Bihar, Patna … Respondents ----------- 3. 16.9.2010 Having heard Mr. Vindhyachal Singh, learned counsel for the petitioner and the counsel for the State as with regard to the following prayer: “I) For issuance of a writ in the nature of certiorari or any other appropriate writ for quashing the order contained in Memo No. 2077(s) dated 16.11.2005 issued by the Director in Chief, Health Services, Bihar, Patna whereby show cause explanation submitted by the petitioner has been rejected and it has been observed that first time bound promotion is not admissible to the petitioner. II) For issuance of a writ in the nature of certiorari or any other appropriate writ for quashing of office order contained in Memo No. 187 dated 23.10.2003 issued by the Department of Health and Family 2 Welfare under the signature of the Additional Secretary whereby the first time bound promotion granted to the petitioner was cancelled from retrospective effect and a direction was also issued for fresh determination of salary. III) For issuance of a writ in the nature of certiorari or any other appropriate writ for quashing of a letter contained in Memo No. 221(5) dated 17.2.2004 issued by the Director in Chief, Department of Health, Bihar, Patna addressed to the Treasury Officer, Secretariat Treasury, Patna directing him to recover an amount of Rs. 1,21,215/- (Rupees one lac twenty one thousand, two hundred fifteen only) from the gratuity of the petitioner on the ground that the 1st time bound promotion was given to the petitioner in an irregular manner. IV) For issuance of a writ in the nature of mandamus or any other appropriate writ commanding the respondent to determine the salary and the pension of the petitioner by giving the benefit of first time bound promotion and on the basis of last pay drawn by him at the time of retirement as the same was given to the petitioner in legal and regular manner by a competent authority in accordance with the 3 procedure prescribed by the law and also to restrain the respondents from making any recovery from the gratuity of the petitioner and also to command respondents to return the recovered amount.” this Court would find that despite matter being remitted to the authority on an earlier occasion by an order of this Court dated 4.7.2005 in L.P.A.No. 457/2005 the authorities have failed to apply themselves to the real crux of the matter and had passed the impugned order on 16.11.2005 on a different premises altogether. The issue involved in this writ application is with regard to correctness of the decision of an order dated 23.10.2003 whereby and whereunder the first time bound promotion given to the petitioner on 20.2.1986 was cancelled on the ground that he did not fulfil the requisite condition as imposed in the Government resolution dated 19th February, 1986. It has to be noted that the said order dated 23.10.2003 had given certain reasons for cancelling the first time bound promotion to the petitioner and one of them was that the petitioner had not 4 passed the departmental examination, a condition which was imposed in his order of promotion dated 20.12.1986. The petitioner, however, had not produced any evidence and consequently the authority had cancelled such time bound promotion of the petitioner from the date of its being given to him i.e. 20.12.1986. The petitioner thereafter had moved before this Court and though his writ petition was dismissed by the learned Single Judge by an order dated 18.3.2005 in C.W.J.C.No. 8948/2002, wherein this Court had held as follows: “On 30th December, 1981, the Government introduced time bound promotion policy and in terms thereof in order to obtain the first time bound promotion, one was required to have worked in the same post for a period of 10 years and in addition to that, if the person was an employee of the Secretariat he has to pass the departmental examination. The departmental examination was to be held twice a year. However, in between 1975 and 1985 only three examinations were held and accordingly representations were made by the 5 employees of the Secretariat that they did not get opportunity to pass the departmental examination. This representation was accepted by the government and the Government by resolution dated 19th February, 1986, clarified that even those employees of the Secretariat who have not passed the departmental examination, would be given promotion provided they clear the departmental examination by two successive attempts. The Departmental Examination referred to in the 1986 policy consists of three papers. Petitioner cleared the first paper on 29th June, 1981, and the third paper on 1st April, 1986. He would not clear the second paper. In terms of the 1986 policy of the Government, the petitioner could be given a time bound promotion with effect from the date he was entitled to such promotion, despite not clearing the second paper of the subject examination, but the petitioner had to clear the second paper of the said examination within two successive attempts. Since in terms of the said policy the petitioner became entitled to such promotion, the petitioner was given such promotion on 1st March, 1986, w.e.f. 20th October, 1985. In terms of the 1986 6 policy, on the basis whereof the petitioner was given the said promotion, it was incumbent upon the petitioner to clear the second paper of the subject examination by two successive attempts. There is no pleading anywhere in the petition or in the rejoinder or in the interlocutory application filed by the petitioner as to when after 1st March, 1986, the subject examination were held. From the Government policy contained in the resolution dated 9th February, 1986, it would be clear that by that time the Government was aware of the fact that the subject examination are not being held within six months although they were required to be held at the interval of six months, it should be deemed that steps were taken to hold such examination at the interval of six months since after 9th February, 1986. In such view of the matter, the promotion of the petitioner could be retained by him provided he had passed the second paper of the subject examination within two years from 1st March, 1986, i.e. within 9th March, 1988. It is not the case of the petitioner that since after 1st March, 1986, until he attended the age of 50 years, no such examination was held or two of 7 such examinations were not held and accordingly within the age of 50 the petitioner had no opportunity to fulfil the terms upon which he was accorded the promotion. In the year 1993, the petitioner crossed the age of 50 years. Subsequent thereto he applied for exemption to pass the subject examination in terms of the policy of the government dated 20th October, 1985, whereby and whereunder it had been provided that on an application made by an employee who has crossed the age of 50 years it is permissible for granting exemption to an employee from appearing in the subject examination. That application was decided in 19th July, 1996 and thereby an exemption was granted to the petitioner. The letter dated 19th July, 1996 by which petitioner was granted exemption does not say that the petitioner was prevented in any manner from appearing in the second paper of the subject examination, either for not holding of the subject examination since after the policy dated 19th February, 1986 or otherwise. In as much as the promotion of the petitioner effected by the letter dated 1st March, 1986, w.e.f. 20th October, 1985, was conditional upon the 8 petitioner passing the departmental examination and inasmuch as the petitioner did not pass the departmental examination within the time which was stipulated as a condition in the policy dated 19th Feb. 1986, the petitioner became disentitled in terms of the said policy dated 19th February, 1986 to retain the said promotion. He once again became entitled to promotion when he was accorded the exemption on 19th July, 1986, and accordingly he became entitled to be promoted w.e.f. 19th July, 1996 and not from 20th October, 1985. This is, however, not reflected in the service records of the petitioner and accordingly the Accountant General correctly returned the papers of the petitioner to the State Government for correcting the service records of the petitioner and the State Government has correctly rectified the service records of the petitioner. It cannot be suggested that in terms of the Government policy dated 20th October, 1985, on the basis whereof the power was exercised on 19th July, 1996, the authority concerned could alter the situation as was contemplated by the policy decision dated 19th Feb. 1986. The policy dated 19th Feb. 1986, made it 9 absolutely clear that the promotion is conditional upon passing the subject examination. Admittedly the petitioner did not pass the same. I could appreciate, if it had been pleaded and the same had been true, that after 1986 the petitioner did not get opportunity until the reached the age of 50 years to appear and pass in the examination which he did not clear. That being not the position the conditional promotion will come to an end the moment condition had not been fulfilled. In such view of the matter the promotion which was granted to the petitioner w.e.f. 20th October, 1985, stood nullified in terms of the policy clearly spelt out in the circular dated 19th February, 1986. The petitioner was entitled to ask for the exemption in terms of the policy 20th October, 1985, and he did apply for such exemption but only on 19th July, 1996, the exemption was granted and since then he became entitled to be promoted and in the meantime on 1st January, 1996, the government did away the time bound promotion policy. In such view of the matter whatever has been done in the instant case by the authorities of the State which has been challenged in this writ petition, have all 10 been perfectly done and in accordance with the policy of the Government.” The resultant appeal filed by the petitioner, L.P.A.No. 457/2005 was allowed by the Division Bench which had set aside the order of the learned Single Judge and had remitted the matter back to the authority to issue a fresh show cause notice to the petitioner and after considering the show cause decide the matter afresh. It is not in doubt that on 9.8.2005 the authority had issued a show cause notice asking the petitioner to file his reply as with regard to sustainability of his time bound promotion, whereafter the petitioner had filed his show cause reply on 16.8.2005 leading to the impugned order dated 16.11.2005, wherein the reason given for cancelling/ recalling the time bound promotion is as follows: foHkkxh; ijh{kk f}rh; i= ls feeqfDr Jh vkye dks 19 tqykbZ 1996 ds izHkko ls fd;k x;k gS foRr foHkkx ds ladYi la[;k 660 fo0 ¼2½ fnukad 8-2-99 ds }kjk 1-1-96 ds gh lHkh rjg ds izksUufr ¼dkyc) izksUufr lfgr½ dks lekIr dj fn;k x;k gSA vr,o 19 tqykbZ 1996 ds izHkko ls mUgsa izFke dkyc) izksUufr vuqekU; ugha gSA vr% Jh vkye ds dkj.ki`PNk rF;ksa ij vk/kkfjr ugha jgus ds dkj.k vLohd`r fd;k tkrk gSA The whole issue in fact, however, in the opinion of this Court is not that the 11 petitioner was wrongly given the first time bound promotion in spite of his having not passed the departmental examination, rather whether he could have continued with such time bound promotion without fulfiling the condition imposed in his order of promotion. Though the petitioner has not produced the order of promotion dated 24.2.1986, such condition in fact had to be in consonance with the Government circular dated 19.2.1986 which reads as follows: Þfo'ks’k ifjfLFkfr esa lfpoky; ,oa lEc) dk;kZy;ksa ds ,slsl lHkh lgk;dksa dk tks 10 o’kksZ dh lsokof/k iwjh djus ij] fdUrq foHkkxh; ijh{kk esa mRrh.kZrk ugha izkIr djus ds ckotwn vU; lHkh vgZrk,¡ iwjh djrs gS mUgsa bl “kRrZ ij izoj dksfV lgk;d ds in ij dkyc) izksUufr ns nh tk; f dos vxyh nks lkg;d foHkkxh; ijh{kkvksa esa mRrh.kZrk izkIr dj ysxs] vU;Fkk ftl frfFk ls nwljh ijh{kkQy ?kksf"kr gksxk ml frfFk dks ;fn bl ladYi ds vuqlkj dkyc) :I ls izkUur lgk;d bu ijh{kkvksa esa mRrh.kZrk izkIr ugha djrs gS] rks mUgsa nwljh ijh{kkQy dh ?kks"k.kk dh frfFk ls lgk;d ds vius ewy in ij izr;kofRrZr dj fn;k tk;sxkA dkyc) izksUufr ds laca/k esa foRr foHkkx }kjk fuxZr ifji=ksa dh vU; 'kRrsZ ;Fkkor jgsaxhA Þ The petitioner, therefore, when he had earned his second time bound promotion with effect from 20.10.1985 he was well aware that he had to pass the departmental examination in the next two examinations failing which the order of time bound promotion could have been rescinded/ recalled. It is clear that both the petitioner and the State have not been able 12 to give the exact dates of the examination held after 24.2.1986, inasmuch as the exercise of cancelling/ rescinding the first time bound promotion as per the circular of the State Government dated 19.2.1986 would squarely depend on the date of holding of examination and the date of declaration of the examination. Be it noted that the petitioner’s time bound promotion was notified on 24.2.1986 and if after 24.2.1986 two examinations were never conducted as is sought to be impressed by Mr. Singh in his submission, probably the respondents cannot take away the benefit of the first time bound promotion but on the other hand, if it is found that the two examinations were held after 24.2.1986 and the petitioner either did not appear in such examination or having appeared in the examination had failed in such examination, his promotion was bound to be cancelled in terms of the Government circular dated 19th February, 1986 with effect from the date of declaration of the result of the second examination. It was for this purpose that this Court by its order dated 26.8.2010, having 13 noticed that the respondents had not even disclosed such vital information, had given an opportunity to the respondents to file their supplementary counter affidavit but then the counsel for the State has submitted that despite information given to the respondents no instruction has been received by them for filing of the supplementary counter affidavit. In that view of the matter, as there is complete paucity of the relevant material to decide the real issue in question, this Court would direct the concerned authority to now reconsider the whole issue by ignoring the reasons indicated in the impugned order dated 16.11.2005 and examining the whole issue by looking into the order of promotion of the petitioner dated 24.2.1986 and ascertaining two dates of examination which were held after 24.2.1986 and the date of declaration of the result of the second examination. If in course of such verification it is found that the two departmental examinations were not held till 19th July, 1996 when the petitioner was given exemption, the first 14 time bound promotion given earlier will not be cancelled but if in between 24.2.1986 and 18.7.1996 two departmental examinations were held, the time bound promotion so granted to the petitioner shall be cancelled with effect from the date of declaration of the result of the second examination and any recovery that has to be made will be made only in terms of the revised order. The submission of Mr. Singh that now that the petitioner has already retired and as there was no misrepresentation on his part and accordingly, he could not be subjected to any recovery has to be appreciated in the backdrop of the conditions imposed in his order of promotion as is clearly mentioned in the circular of the State Government. There was no question of either representation or misrepresentation in the present case, inasmuch as the petitioner had earned his promotion knowing fully well that if he will not pass the next two departmental examinations his first time bound promotion was going to be rescinded. Therefore, the concept of misrepresentation or retaining 15 the benefit of such promotion at least from the date of declaration of the result of the second examination would not be available in the present case. That being so, this application is disposed of with the aforementioned observation and direction. (Mihir Kumar Jha,J.) Surendra/