IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6493 of 2007 Mojibur Rahman, Son of late Wqziuddin, resident of village Gangi, P.S. Bahadur Ganj, District Kishanganj (since dead and substituted by his L.Rs) … Petitioner Versus 1. The State Of Bihar 2. The Secretary, Primary and Adult Education Department, Bihar, Patna 3. The Director, Primary Education, Bihar, Patna 4. The District Magistrate, Kishanganj, Bihar 5. The District Superintendent of Education cum Sub-divisional Education Officer, Kishanganj 6. The District Education Officer, Patna 7. The Regional Deputy Director of Education, Purena, Sub- divisional Purnea 8. District Education Establishment Committee through District Superintendent of Education cum Sub-divisional Education Officer, Kishanganj … Respondents ---------------------------------- 5. 14.9.2011 I.A.No. 1938/2911 For the reasons mentioned in this application, the prayer made therein is allowed and the persons named in paragraph 1 of this application are directed to be substituted in place of the sole writ petitioner, who is said to have died during the pendency of this writ application on 21.2.2011. Coming to the merits of this case this Court would find that the promotion of the original petitioner in I.A. trained scale of pay and B.A. trained scale of pay, already given to him with effect from 1.3.1972 and 12.7.1980 could not have been changed with retrospective effect under the orders of the District Superintendent of Education (D.S.E.) who has been vested no such independent power to give promotion to any teacher inasmuch as under the relevant promotion rules of teachers of primary school such power has been vested in the District Education 2 Establishment Committee of which D.S.E. is only its member Secretary. It is the case of the respondents that the case of the original petitioner had received due consideration for his promotion in the I.A. trained scale of pay and B.A. trained scale of pay and such promotions were given to him with effect from 1.3.1972 and 12.7.1980 under the orders of the then competent authority i.e. the Committee. In that view of the matter, the subsequent order passed by the then District Superintendent of Education shifting the date of promotion of the petitioner in the I.A. trained scale of pay from 1.3.1972 to 1.1.1971 and from 12.7.1980 to 1.7.1973 in the B.A. trained scale of pay was also wholly without jurisdiction . This Court, therefore, would find no error in correction of such orders and holding the original petitioner to be held entitled for his financial benefit only on the basis of his promotion in the I.A. trained scale of pay and B.A. trained scale of pay with effect from 1.3.1972 and 12.7.1980 respectively. A question would, however, arise as to whether the original petitioner can be subjected to any recovery especially when such shifting of promotion of the original petitioner with retrospective effect was an illegal act on the part of the then D.S.E., Purnea (Dr. Deochandra Jha) and the dealing Assistant Md. Soiab Alam. To that extent paragraph 23 of the counter affidavit is relevant and is quoted hereinbelow: “That in reply to the statements made in paragraph 3 no. 17 of the writ petition under reply it is again submitted that Annexure 9 of the writ petition is not arbitrary and penal in nature. It is stated that the petitioner was given Matric trained scale with effect from 1.1.1971 and I.A. trained with effect from 1.3.1972 and B.A. trained from 12.7.1980. From the service book of the petitioner, it appears that the petitioner was given I.A. trained scale with effect from 1.1.1971 in stead of 1.3.1972 and B.A. trained scale with effect from 1.7.1973 in stead of 12.7.1980. It is submitted that for this illegal act the petitioner, the then District Superintendent of Education, Purnea and dealing assistant Md. Soiab Alam were fully responsible.” It thus becomes clear that the date of promotion of the original petitioner was not account of any fraud or misrepresentation on the part of the original petitioner. Considering this aspect of the matter, this Court would now absolve the substituted petitioners from the liability of being subjected to recovery of the alleged excess amount drawn by the original petitioner on account of shifting of the date of promotion in the I.A. and B.A. trained scale of pay. It is, however, made clear that the last salary drawn by the original petitioner would be on the basis of his date of promotion in the I.A. and B.A. trained scale of pay i.e. with effect from 1.3.1972 and 12.7.1980 respectively and that all his retirement benefit would be paid on the basis of the impugned order, as contained in Annexure 9. At this stage while learned counsel for the petitioner 4 has tried to justify the grant of retrospective promotion to the original petitioner by an order dated 3.6.1988 by which his promotion in I.A. trained scale from 1.3.1972 was shifted to 1.1.1971 and that of his promotion in B.A. trained scale was shifted from 12.7.1980 to 1.7.1973, he could not justify the said order beyond what was said in the order itself. The order in question passed by the D.S.E. on 3.6.1988 in fact refers to the resolution of the Finance Department regarding fixation of pay vide Memo No. 10770 dated 30.12.1981 and Memo No. 8014 dated 4.9.1982 but none of them had ever contemplated granting of retrospective promotion to a person who had already been granted I.A. trained scale of pay and B.A. trained scale of pay in the year 1972 and 1980 respectively. As a matter of fact the same person i.e. D.S.E., Purnea who had passed the order on 3.6.1988, having realized his mistake and collusion of the office has also passed the order cancelling the order dated 3.6.1988 by a separate order dated 1.7.1989 after following the principles of natural justice and giving opportunity of hearing to the petitioner as would be evident from the perusal of Annexures 4, 5 and 6 to the writ application. The explanation offered on behalf of the original petitioner that he had challenged the order dated 1.7.1989 cancelling retrospective promotion of the petitioner on 3.6.1988 in C.W.J.C.No. 6894/1989 and this Court had stayed recovery of the amount on 17.1.1990, whereafter the writ application was withdrawn would also be of no avail in view of the fact that an 5 interim order passed was to continue till the pendency of the writ application and if the writ application was unconditionally withdrawn by the original petitioner the effect of the interim order had also come to an end reviving the order dated 1.7.1989 with the original petitioner's date of promotion in the I.A. trained and B.A. trained pay scale effective only w.e.f. 1.3.1972 and 12.7.80 respectively. Further submission of the learned counsel for the petitioner that such withdrawal of the writ application was made by the original petitioner in view of the earlier order passed by the D.S.E. staying recovery as proposed in the order dated 1.7.1989 will also be of no avail, inasmuch as the order in question had contemplated an enquiry as with regard to grant of higher pay scale to the petitioner. Admittedly such enquiry did continue when a show cause notice was issued to the original petitioner on 10.6.2004 before passing of the impugned order on 20.7.2004. The original petitioner in fact had retired on the basis of his date of promotion in the I.A. trained scale of pay of being 1.3.1972 and B.A. trained scale of pay of 12.7.1980 as originally given to him before passing of the order dated 3.6.1988. After retirement the original petitioner had filed this writ application assailing the order of the year 2004 and the only explanation is that the petitioner was ill and therefore, he could not file the writ application earlier. In such circumstance, while this Court would not reject the writ application on the ground of delay and laches but it would still hold that when the impugned order dated 6 20.7.2004 was already allowed by the original petitioner to be given effect to, leading to recalculation of his entire benefit, the substituted petitioners cannot now raise any new challenge for the purposes of drawing any higher benefit beyond what was already accepted as a fait accompli by the original petitioner. Under such circumstances, this Court would find no merit in this writ application and the same, subject to the aforementioned observations and directions, is accordingly dismissed. (Mihir Kumar Jha,J.) Surendra/