IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5909 of 2005 NAND KUMAR JHA, son of Shri Shiv Nandan Jha, resident of D-7, Gandak Project Colony, Ratwara, P S – Sadar, Town & District – Muzaffarpur. Versus 1. THE STATE OF BIHAR through the Secretary cum Commissioner, Water Resources Department, Sinchai Bhawan, Third Secretariat, Patna. 2. The Engineer-in-Chief cum Additional Secretary, Water Resources Department, Government of Bihar, Sinchai Bhawan, Third Secrertariat, Patna. 3. The Under Secretary, Water Resources Department, Government of Bihar, Sinchai Bhawan, Third Secrertariat, Patna. 4. The Chief Engineer, Water Resources Department, Kalambagh Chowk, Muzaffarpaur. 5. The Superintending Engineer, Water Resources Department, Tirhut Canal Circle, Ramdayalu Nagar, Muzaffarpur. 6. The Executive Engineer, Water Resources Department, Tirhut Canal Division No.1, Muzaffarpur. ----------- For the petitioner : M/S Tuhin Shankar & Rajnish Kumar. For the State : Mr. Abhay Shankar Jha, SC 9 & D K Jha, AC to SC 9. -------- 05. 10/04/2009 Petitioner wants quashing of the office orders dated 9.8.2004 and 21.9.2004, annexures 1 and 2 respectively, issued by respondent Nos. 6 and 3, by virtue of which the promotion granted to the petitioner from the post of Work Sarkar to the post of Supervisor Grade II was withdrawn as it was held to be against the rule, though respondents have held that the petitioner is entitled to first/second time bound promotion. 2. Petitioner retired on 31.5.2004. He claims that he was holding the post of Supervisor Grade II in the office of the Executive Engineer, Water Resources, Tirhut Canal Division, Muzaffarpur (Respondent no.6). He was initially appointed on a Class IV post of - 2 - Chaukidar on 16.4.1969 in the work charge establishment of Nepal Eastern Canal Division, Gandak Project , Birganj. Vide letter no. 67 dated 6.1.1970 petitioner was given promotion to the post of Work Sarkar in the work charge establishment of the Gandak Project of Birganj. 3. Vide letter no. 1721 dated 15.7.1977 issued under the signature of the Superintending Engineer of Tirhut Canal Circle, Muzaffarpur, promotion of the petitioner to the post of Work Sarkar was approved. It is further stated that under the signature of Chief Engineer, Water Resources Department, Muzaffarpur vide letter no. 2952 dated 9.11.1978 he was provisionally declared permanent on the post of Work Sarkar from 1.4.1977. 4. Further averment of the petitioner is that Additional Secretary of the Water Resources Department vide letter no. 446 dated 22.4.1982 communicated the decision of the Government to the Accountant General, Bihar to regularize the services of the employees of the work charge establishment who had completed satisfactory service of five years as on 1.4.1977 by treating the post as permanent. This communication has been brought on record as annexure-3 to the writ application. 5. Petitioner states that in terms of the decision of the government vide letter dated 15.6.1982 the service of the petitioner was regularized on the post of Work Sarkar with effect from 1.4.1977. 6. Subsequently vide letter No. 3097 dated 25.9.1982 the - 3 - Chief Engineer, Water Resources Department, respondent no.4, granted promotion to the petitioner on the post of Supervisor Grade II in the pay-scale of Rs.335-555/-. This was to take effect from 30.9.1982. The said order of promotion is annexure-4 to the writ application. 7. Vide Memo No. 3244 dated 1.9.1983 again issued by respondent no.4 the date of promotion of the petitioner to the post of Supervisor Grade II was shifted back to 24.3.1975 with all consequential benefits of seniority and fixation of pay. 8. Petitioner further states in para 11 of the writ application that the Executive Engineer, Water Resources Department, respondent No.6, vide office order dated 19.7.1988 shifted the date of promotion of the petitioner from 24.3.1975 to 27.7.1973 with all consequential benefits. Such decisions have been brought on record as Annexures 6, 7 and 8 respectively. The petitioner was granted yet another benefit by the Chief Engineer (respondent no.4) when vide letter no. 4. 12. 1990 petitioner was given benefit of first time bound promotion to the post of Supervisor Grade II with effect from 27.7.1983. The order is annexure-9 to the writ application. Needless to say that petitioner was given a pay scale in consonance with the first time bound promotion on the post of Supervisor Grade II vide Annexure- 10. Finally the petitioner superannuated on 31. 5.2004 with a pay- scale of Rs.1500 – 2750/- with corresponding replacement scale of Rs.5000 – 8000. 9. Petitioner submitted his pension papers before the - 4 - Executive Engineer, respondent no.6 for its final settlement and payment. The matter was examined by the office of respondent no.6. They were of the considered opinion that employees of the work charge establishment on their regularization were entitled to first time bound promotion and regular promotion was not admissible to them. It was in this background that guidelines were sought from the higher authorities. 10. The Under Secretary, Water Resources Department, Government of Bihar, vide letter dated 21.9.2004 informed respondent No.4 Chief Engineer that the Finance Department after examining the claim of the petitioner was of the firm opinion that the promotion given to the petitioner on the post of Supervisor Grade II was against the rule and further petitioner had been given benefit of promotion to the post of Work Sarkar on 6.1.1970 and was made permanent on regularization with effect from 1.4.1977. So at best he could be given first time bound promotion on 27.3.1987. The case of 2nd time bound promotion can also be considered notionally since he completed 25 years of service in work charge establishment on 6.1.1995. It was on the basis of such a decision communicated that respondent no.6 issued order dated 9.8.2004 which is annexure-1 to the writ application and is under challenge along with annexure-2. 11. Contention of the learned counsel for the petitioner is that petitioner has been reduced to a lower post of Work Sarkar in violation of principles of natural justice. He even made grievance by way of an affidavit before the concerned authorities but same did - 5 - not have any effect. Respondents have gone ahead and fixed his provisional pension and gratuity on the pay scale of Work Sarkar and he is let with no option but to move this High Court. 12. The stand of the respondents in the counter affidavit filed on their behalf is that there is no wrong doing on behalf of the respondents. When the service book along with recommendation for authorization of pension was forwarded to the Headquarters it came to light of the official respondents that certain benefit had been given to the petitioner to which he was not entitled to. Even on a plain perusal, based on the averments of the petitioner, petitioner had been given the benefit of promotion on the post of Supervisor Grade II on 30.9.1982 and then shifted back twice over to 27.7.1973 i.e. even before he was regularized on the post of Work Sarkar with effect from 1.4.1977. Under what circumstances such orders were issued at the local level is not fully explained. They have also brought the case of one Udit Narayan Mallik who too had been given similar promotion illegally even though he had joined the post of skilled khalasi and his pension has been fixed without the benefit of promotional post. It is also urged on behalf of the respondents that the benefit of promotion in service is based on the rules and circulars and if for the work charge employee they are not entitled to substantive promotion twice over and merely because at the local level some kind of order came to be passed in favour of the petitioner contrary to requirements in this regard, respondent State is not bound to fix the pension on the post on which the petitioner retired. In fact - 6 - it is seriously urged that the benefit of the kind claimed is not available for the work charge establishment as would be evident from the decision of Full Bench of this Court rendered in the case of Durganand Jha & ors Vs. The State of Bihar & ors, 2007 (4) PLJR 259. 13. Learned counsel representing the petitioner strenuously argued that the benefit once granted cannot be taken away after the retirement of the petitioner and there was no bar to the petitioner having been given the benefit of promotion. To a pointed question put to him as to how he has been given the benefit of the post of Supervisor Grade II from a particular date and the same came to be shifted twice over to a date even before the petitioner was regularized or confirmed on the post of Work Sarkar, he has no cogent or clear explanation to offer. 14. All has not been well. It seems the benefits have fallen in the lap of the petitioner for unexplained reasons. If it is so, this Court will have no occasion to upturn the decision of respondents if on examination of the service book of the petitioner, for settlement of pension, they come to considered opinion that the benefit not entitled to under law had accrued to the petitioner. 15. Since it a question of only fixation of pension, on the correct post and pay and not a case of recovery due to wrong promotion, the Court is not inclined to interfere with the impugned orders. The pension of the petitioner would be fixed on the basis of his entitlement and in consonance with the decision taken by the - 7 - respondents in terms of annexure-1 and annexure-2. 16. The writ application has no merit. It is dismissed. rkp (Ajay Kumar Tripathi, J)