IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.4245 of 2007 Ramanugrah Jha, SON OF LATE DAMODAR JHA, RESIDENT OF ANAND BHAWAN, ANAND BAGH, BHIKHANPUR, P.S.- ISHAK CHAK (KOTWALI), TOWN AND DISTRICT- BHAGALPUR :--- PETITIONER. Versus 1. The State Of Bihar THROUGH THE COMMISSIONER-CUM- SECRETARY, DEPARTMENT OF FINANCE, GOVERNMENT OF BIHAR, OLD SECRETARIAT, PATNA. 2. THE UNDER SECRETARY, DEPARTMENT OF REVENUE AND LAND REFORMS, GOVERNMENT OF BIHAR, OLD SECRETARIAT, PATNA. 3. THE DIVISIONAL COMMISSIONER, BHAGALPUR. 4. THE DISTRICT ESTABLISHMENT COMMITTEE, BHAGALPUR COLLECTORATE, BHAGALPUR THROUGH ITS CHAIRMAN- CUM-DISTRICT MAGISTRATE, BHAGALPUR. 5. THE DISTRICT MAGISTRATE, BHAGALPUR. 6. THE DISTRICT SUPPLY OFFICER, BHAGALPUR COLLECTORATE, BHAGALPUR. 7. THE ESTABLISHMENT DEPUTY COLLECTOR, BHAGALPUR COLLECTORATE, BHAGALPUR. 8. THE TREASURY OFFICER, BHAGALPUR. 9. THE ACCOUNTANT GENERAL, BIHAR, BIRCHAND PATEL PATH, PATNA :----RESPONDENTS. ---------------------------------- with Miscellaneous Jurisdiction Case No.1157 of 2007 Ramanugrah Jha, SON OF LATE DAMODAR JHA, RESIDENT OF NANDANBAN, ANANDBAGH, BHIKHANPUR, P.S.- ISHAK CHAK (KOTWALI), TOWN AND DISTRICT- BHAGALPUR :--- PETITIONER. Versus 1. The State Of Bihar THROUGH THE COMMISSIONER-CUM- SECRETARY, DEPARTMENT OF FINANCE, GOVERNMENT OF BIHAR, OLD SECRETARIAT, PATNA, NAMELY, SHRI NAVIN SINHA, SON OF NAME NOT KNOWN TO THE PETITIONER. 2. THE UNDER SECRETARY, DEPARTMENT OF REVENUE AND LAND REFORMS, GOVERNMENT OF BIHAR, OLD SECRETARIAT, PATNA, NAMELY, SHRI UMESH PRASAD SINGH, SON OF NAME NOT KNOWN TO THE PETITIONER. 3. THE DIVISIONAL COMMISSIONER, BHAGALPUR SHRI A.B. PRASAD, I.A.S. FATHER’S NAME NOT KNOWN TO THE PETITIONER. 4. THE DISTRICT ESTABLISHMENT COMMITTEE, BHAGALPUR COLLECTORATE, BHAGALPUR THROUGH ITS CHAIRMAN- CUM-DISTRICT MAGISTRATE, BHAGALPUR SHRI BIPIN KUMAR I.A.S., FATHER’S NAME NOT KNOWN TO THE PETITIONER. 5. THE DISTRICT MAGISTRATE, BHAGALPUR SHRI BIPIN 2 KUMAR, I.A.S., FATHER’S NAME NOT KNOWN TO THE PETITIONER. 6. THE DISTRICT SUPPLY OFFICER, BHAGALPUR COLLECTORATE, BHAGALPUR, NAMELY, SHRI S.N. RAM, SON OF NAME NOT KNOWN TO THE PETITIONER. 7. THE ESTABLISHMENT DEPUTY COLLECTOR, BHAGALPUR COLLECTORATE, BHAGALPUR, NAMELY, SHRI S.N.RAM, SON OF NAME NOT KNOWN TO THE PETITIONER. 8. THE TREASURY OFFICER, BHAGALPUR, NAMELY, SHRI S.C. JHA, FATHER’S NAME NOT KNOWN TO THE PETITIONER. 9. THE ACCOUNTANT GENERAL, BIHAR, BIRCHAND PATEL PATH, PATNA, NAMELY, SHRI GAUTAM GUHA, SON OF NAME NOT KNOWN TO THE PETITIONER :----RESPONDENTS. ---------------------------------- For the petitioner : M/S. Purushottam Jha & Sanjay Kumar, Advocates For the State : Mr. Binit Kumar, A.C. to G.A.9 Mr. Ravindra Priyadarshi, A.C. to A.A.G.I. ======= 8. 13.10.2011. Heard learned counsel for the petitioner and the State. 2. Petitioner superannuated while serving as Office Superintendent in the Bhagalpur Collectorate with effect from 30.6.2004. He has filed this writ petition questioning the order bearing Memo No. 55 dated 5.2.2007 (Annexure-13) passed in compliance of the order of the High Court dated 14.9.2006, Annexure-11, whereunder his promotion on the post of Office Superintendent with effect from 8.6.2001 and Head Clerk with effect from 1.2.1997/1.7.1997 has been cancelled. Earlier petitioner had filed C.W.J.C. No. 3496 of 2006 praying, inter alia, to direct the Collector, Bhagalpur to consider his case for grant of promotion on the post of Head Clerk/ Office Superintendent with effect from 1.1.1996. Aforesaid writ petition was disposed of under orders dated 14.9.2006, Annexure-11 directing the State- respondents to give the petitioner promotion either as 3 Head Clerk or Office Superintendent with effect from 1.1.1996. In compliance of the said order dated 14.9.2006 Collector, Bhagalpur considered the case of the petitioner under impugned order bearing Memo No. 55 dated 5.2.2007 but in stead of granting promotion to the petitioner either on the post of Head Clerk or Office Superintendent with effect from 1.1.1996 proceeded to cancel the two promotions of the petitioner with effect from 1.7.1997/8.6.2001 on the ground that petitioner had not passed the Departmental Accounts Examination which is mandatory for earning substantive promotion. By filing the present writ petition on 3.4.2007 prayer was made to quash the order dated 5.2.2007, Annexure-13. During the pendency of the present writ petition petitioner also filed M.J.C. No. 1157 of 2007 on 14.5.2007, praying, inter alia to initiate proceedings of contempt against Collector, Bhagalpur for his act of disobedience of not granting the petitioner promotion on the post of Head Clerk/Office Superintendent with effect from 1.1.1996 in compliance of the order dated 14.9.2006, Annexure-11. Prayer made in the writ petition was considered by another Bench of this Court on 26.7.2007 when interim order was passed directing that during pendency of the writ petition the impugned order dated 5.2.2007 shall remain in abeyance together with other consequential actions. On 30.10.2007 prayer was made on behalf of the petitioner to take up the writ case after disposal of M.J.C. 4 No. 1157 of 2007. Under order dated 07.10.2009 passed in M.J.C. No. 1157 of 2007 another Bench of this Court directed that the M.J.C. be heard along with C.W.J.C. No. 4245 of 2007. Inspite of the order dated 07.10.2009 passed in the M.J.C. the same was not tagged with the writ petition and ultimately the matter was brought under the heading “To be mentioned” and under orders dated 13.1.2011 passed by another Bench of this Court direction was made to hear both C.W.J.C. No. 4245 of 2007 and M.J.C. No. 1157 of 2007 together. In compliance of the said order dated 13.1.2011 both the writ petition and the contempt petition have been placed for consideration before me. 3. Petitioner was promoted as Head Clerk with effect from 1.2.1997 under order dated 29.5.2000, 3.8.2000 but the said promotion order was modified under order dated 4.6.2001, Annexure-1, whereunder petitioner was promoted as Head Clerk with effect from 1.7.1997. Later under orders dated 8.6.2001 petitioner was promoted as Office Superintendent, which fact has been mentioned in Paragraph-12 of the writ petition and is not disputed either in the impugned order or in the counter affidavit. Petitioner continued to discharge the duties of the Office Superintendent until the date of his superannuation i.e. 30.6.2004. After his superannuation petitioner filed C.W.J.C. No. 3496 of 2006, praying, inter alia, to direct the State-respondents to grant him 5 promotion on the post of Head Clerk or Office Superintendent with effect from 1.1.1996. Aforesaid writ petition was disposed of under order dated 14.9.2006, Annexure-11 directing the State-respondents to grant the petitioner promotion either as Head Clerk or Office Superintendent with effect from 1st January, 1996, if he is entitled to the same having regard to his seniority within 45 and is otherwise eligible. Operative portion of the said order dated 14.09.2006 is quoted hereinbelow for ready reference :- “Having considered such submission of the learned counsel for the State, I dispose of this writ petition by directing the State to give to the petitioner his promotion either as Head Clerk or Office Assistant with effect from 1st January, 1996 if he is entitled to the same having regard to his seniority, within 45, and is otherwise eligible.” 4. In the light of the aforesaid direction the Collector, Bhagalpur considered the case of the petitioner for promotion but as the petitioner had not passed the Departmental Accounts Examination, under the impugned order promotion granted to him on the post of Head Clerk/Office Superintendent with effect from 1.7.1997 and 8.6.2001 was cancelled. Learned counsel for the petitioner has assailed the said cancellation order on the ground that petitioner was entitled for exemption from passing the Departmental Accounts Examination in the 6 light of the instruction of the State Government contained in Circular Letter No. 4674 dated 15.06.1992 as he had attained 50 years of age and in appreciation of the contents of circular dated 15.5.1992 the Collector while passing the impugned order dated 5.2.2007 ought not to have cancelled the promotion granted to the petitioner for his failure to pass the Departmental Accounts Examination. 5. Aforesaid submission made by the learned counsel for the petitioner is wholly misconceived in view of the fact that from perusal of the circular dated 15.5.1992 itself it will appear that for getting the benefit of exemption one has to apply for exemption and the exemption has to be considered by the competent authority i.e. Divisional Commissioner and in the light of the order granting exemption the competent authority in the Collectorate i.e. Collector is to consider the case of the subordinate employees for grant of promotion. In the instant case petitioner having never applied for grant of exemption from passing the Departmental Accounts Examination the competent authority could not have considered his case for exemption and the Collector could not have granted him substantive promotion without petitioner having obtained exemption from passing the Departmental Accounts Examination. 6. In view of my observation above, the submission that petitioner was entitled for protection of 7 his promotion in the light of circular dated 15.5.1992 and the promotion granted to him without passing the Departmental Accounts Examination ought not to have been cancelled is wholly misconceived. In this connection, I may refer Rule 157 J of the Board Miscellaneous Rules which provide that for earning promotion the Government servant has to pass the Departmental Accounts Examination and without passing such examination, in my opinion, Government servant is not entitled for earning promotion. 7. Having held as above, I am of the view that the prayer of the petitioner to initiate contempt proceeding against the Collector, Bhagalpur for violating the order dated 14.9.2006, Annexure-11 is wholly misconceived as under order dated 14.9.2006 this Court asked the Collector to consider the case of the petitioner for promotion either on the post of Head Clerk or Office Superintendent with effect from 1.1.1996, provided petitioner is otherwise eligible. Petitioner having neither passed Departmental Accounts Examination nor obtained exemption from passing such examination in my opinion was not eligible for promotion as Head Clerk or Office Superintendent. In appreciation of the aforesaid facts prayer made in M.J.C. No. 1157 of 2007 to initiate contempt proceeding against Collector for cancelling the promotion of the petitioner does not merit consideration, which is, accordingly, dismissed. 8 8. The validity of the order dated 5.2.2007, Annexure-13 is, however, required to be considered in view of the fact that petitioner was granted promotion on the post of Head Clerk with effect from 1.7.1997 under order dated 4.6.2001, Annexure-1 and soon thereafter he was promoted on the post of Office Superintendent with effect from 8.6.2001 and continued to discharge the duties of the Office Superintendent until the date of his superannuation i.e. 30.6.2004. The authorities, having allowed promotion to the petitioner under order dated 4.6.2001, Annexure-1 and the subsequent order dated 8.6.2001 without there being any misrepresentation by the petitioner, in my opinion, were not justified in cancelling the said promotion under the impugned order dated 5.2.2007 with direction to recover the amount received by the petitioner in lieu of promotion, after about three years of his retirement i.e. 30.6.2004 when he filed writ petition to shift back the date of promotion from 1.7.1997/8.6.2001 to 1.1.1996. In this connection, I may refer to the judgment of the Hon’ble Supreme Court in the case of Syed Abdul Qadir & Ors. Vs. State of Bihar & Ors., reported in 2009(2) PLJR (SC) 74, paragraphs 27, 28. In view of my discussion above the impugned order dated 5.2.2007, Annexure-13 is upheld sans the direction to recover the amount received by the petitioner in lieu of promotion. 9. In view of the interim order dated 26.7.2007 9 passed in the writ case petitioner has been receiving pension in the scale admissible to the Office Superintendent which promotion was granted to him without he being qualified for such promotion, in the circumstances, aforesaid order dated 26.7.2007 is vacated with direction to the authorities to refix the pension of the petitioner from the date of this order in the scale admissible to the petitioner in the light of the order cancelling the promotion of the petitioner dated 5.2.2007, Annexure-13 so that any amount received by the petitioner in the light of the interim order of this Court dated 26.7.2007 is also not recovered from him so as to save him from financial hardship in the evening of his life. Financial benefits received by the petitioner during service tenure in the light of the two substantive promotions granted to him on the post of Head Clerk and Office Superintendent and interim order dated 26.7.2007 having been protected under this order, his request for grant of A.C.P. benefit with effect from 9.8.1999 is wholly misconceived and is rejected. In this connection it may also be stated that petitioner has already received financial benefits under 1st, 2nd time bound promotion on completion of 15/25 years of service. 10. The writ petition is, accordingly, disposed of. A.F.R. P.K.P. (V.N.Sinha,J.)