IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11318 of 2005 SHRI PHULENA SINGH Versus THE STATE OF BIHAR & ORS ----------- 03/ 07.04.2010 Mr. Tuhin Shankar for the petitioner and Mr. Rana B.N. Singh, assisting counsel to S.C. 10 on behalf of the State. The petitioner is aggrieved by the recovery effected from the unutilized leave salary amount of the petitioner to the extent of Rs. 35,897/- pursuant to an order bearing no. 387 dated 26.4.2005 placed at Annexure-10 to the proceedings. Facts in brief are that the petitioner was initially appointed against the post of Clerk at Jr. Technical School, Patna under the orders of the Director, Industries contained in memo no. 5723 dated 8.11.1960 (Annexure-1). Indisputably the said school was a government institution. It so appears that the Junior Technical School, Patna was subsequently closed and as a consequence thereof the employees of the said school were accommodated in other schools. Consequent upon the said closure, the petitioner was appointed against the post of Lower Division Clerk at the State Board of Technical Education Bihar, Patna under the order bearing memo no. 3536 dated 9.9.1969 (Annexure-2). Needful to mention here that there was no break in service of the petitioner and the service was continuous except that the transition took place from the Junior Technical School to the State Board of Technical Education Bihar, Patna under the 2 order as contained in Annexure-2. The aforesaid order was followed by another order bearing memo no. 1652 dated 16.4.1984 also placed at Annexure-2 series, whereby the continuity in services were provided to the petitioner counting the service rendered in Junior Technical School but with effect from 1.8.1969 until his joining in the State Board of Technical Education on 9.9.1969. The pay-fixation was carried out and the petitioner was granted second time bound promotion vide order bearing memo no. 974 dated 20.7.1989 (Annexure-4). However, under the order dated 11.10.1990 (Annexure-5) the Additional Secretary, Department of Science and Technology while considering the promotion of the petitioner, was pleased to hold that although the services rendered by this petitioner in the Junior Technical School would be counted for the purpose of pension and gratuity but his entitlements to the time bound promotion would only be with effect from the date of his appointment in the State Board of Technical Education Bihar, Patna under the order dated 9.9.1969. It was directed that the petitioner would not be entitled to the second time bound promotion granted under the order dated 20.7.1989. Having held as such, no action was taken by the authorities of the State Government for adjustment of the excess salary drawn by him by reason of the second time bound promotion. In fact, despite the order as contained in Annexure-5 even his pay-scale was not modified and the petitioner continued to draw his salary on the 3 said scale until his superannuation. The petitioner superannuated with effect from 31.12.2001. While considering the retiral benefits of the petitioner an order came to be passed bearing memo no. 270 dated 5.2.2002 (Annexure-9) and in which even while allowing the services rendered by the petitioner in the Junior Technical School for the purpose of calculation of pension and gratuity, the Secretary, State Technical Education Board, Bihar, Patna held the second time bound promotion of the petitioner as irregular and directed for recovery of the excess amount from the leave salary of the petitioner. Admitted position is that the entire post retiral benefits of the petitioner has since been paid to him and no deductions were made from the pension and gratuity of the petitioner. However, pursuant to the order as contained in Annexure-9 dated 5.2.2002 a recovery order was passed bearing memo no. 387 dated 26.4.2005 (Annexure-10) directing a recovery of Rs. 35,897/- from the leave encashment amount of the petitioner. The petitioner is aggrieved by the said order of recovery. Learned counsel for the petitioner submits that the respondents having counted the services rendered by the petitioner in the Junior Technical School as a qualifying service under the Bihar Pension Rules for the purpose of pension and gratuity, there is no reason for them for ignoring that part of the 4 service for the purpose of grant of time bound promotion. He further submits that although the respondents by order dated 11.10.1990 held that the petitioner was not entitled to the second time bound promotion, but they did not choose to effect any recovery of the amount drawn by the petitioner since after his time bound promotion until the said order. He submits that having allowed the situation to continue in the same state until the superannuation of the petitioner, it is wholly unreasonable and arbitrary on their part to have effected a recovery after almost 15 years. He submits that if the respondents were sanguine about their views about non grant of the second time bound promotion they should have effected the recovery within the service tenure of the petitioner. He further submits that once having held the past service as qualifying services and having granted the entire pension and gratuity of the petitioner as admissible under the Rules, the act of making of recovery from the leave encashment amount is not in accordance with the provisions of the Bihar Pension Rules and that the petitioner is entitled for refund of the withheld amount. Learned counsel further submits that the petitioner at this belated stage would not advance his arguments in so far as withdrawal of promotion is concerned but certainly the authorities have acted in an arbitrary manner in effecting the recovery. Learned counsel appearing on behalf of the State supports the action of the authority and submits that the Scheme of the time bound promotion was 5 designed under the 4th Pay Revision Commission and since the petitioner was granted a fresh appointment in the State Board of Technical Education, Patna vide order dated 9.9.1969 (Annexure-2), hence that resulted in change of cadre and in terms of the provisions of the time bound promotion scheme, the calculation of 10 years and 25 years would have to be counted since after his appointment on the said post. He submits that the promotion was earlier irregularly granted to the petitioner by counting his services in the Junior Technical School and which mistake had since been corrected under the order dated 11.10.1990 as contained in Annexure-5. He submits that once the mistake was rectified then the recovery was a natural consequence and which has been carried out under the order dated 26.4.2005 as contained in Annexure-10. He submits that as the petitioner having not questioned the cancellation of his time bound promotion, has no right to question the recovery. I have considered the rival contentions advanced on behalf of the parties and considered the materials available on record. The issue can be decided on a short point, that once under the order dated 5.2.2002 as contained in Annexure- 9, the respondents have treated the service rendered by this petitioner in the Junior Technical School as qualifying service for the purpose of Retiral benefits then they are not acting reasonably in ignoring the said service, to disentitle the 6 promotion to the petitioner. That the petitioner has consciously chosen not to question the cancellation of promotion under the order dated 11.10.1990, this Court would not express any opinion on the said issue but nonetheless would proceed to hold that no steps having been taken by the authorities in adjusting the amount said to have been excessively drawn by the petitioner within his service period, the respondents are not within their jurisdiction to make recovery of the alleged excess salary drawn from the unutilized leave salary of a retired employee. This issue stands settled by a Division Bench Judgment of this Court reported in 1999(3) P.L.J.R. 949 (Bajrang Deo Narain Sinha Vs. The State of Bihar & Ors., whereby it has been held that the only avenue available to the authorities to make recovery is under the provisions of Rule 43(b) of the Bihar Pension Rules and unutilized leave salary does not fall within the said purview. Even otherwise, the act of the respondents in executing the order dated 11.10.1990 after a lapse of 15 years is most arbitrary and unreasonable, to say the least. That being the position, the recovery cannot be justified and the order to that extent as contained in Annexure-10 is set aside. The respondents are directed to remit the amount withheld within a period of three months from the date of receipt/production of a copy of this order. The writ petition is allowed. S.Sb/- (Jyoti Saran, J.) 7