IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9505 of 1997 DR.JYOTI PRAKASH son of Late Sri Bhuwneshwari Prasad resident of Jagat Narayan Road, P. O and P S. Kadam Kuan, Patna-80003 retired as Regional Deputy Director, Heath, Govt. of Bihar, Saran Division, Chapra…. Petitioner. Versus 1. THE STATE OF BIHAR 2. The Commissioner-cum-Secretary, Department of Health, Medical Education and Family Welfare, Government of Bihar, New Secretariat, Patna. 3. The Under Secretary to Government, Department of Health, Medical Education and Family Welfare, Govt. of Bihar, New Secretariat, Patna. 4. The Accountant General ( A & E)-II, Bihar, Birchand Patel Marg, Patna. 5. The Senior Accounts Officer, Office of Accountant General „A & E- II, Bir Chand Patel Marg, Patna. .. Respondents. 3. 29.7.2010 Heard learned counsel for the parties. The prayer of the petitioner in this writ petition reads as follows; “1. That this is an application praying for issuance of a writ in the nature of a writ of certiorari, quashing the notification bearing No. 86(4) dated 17.2.1997 issued under the signature of the Under Secretary to Government, Department of Health, Medical Education and Family Welfare, Patna, whereby the departmental Notification Bearing No. 121(4) dated 11.4.1994 was cancelled and the promotion granted to the petitioner vide Notification dated 11.4.1994 in the Junior Selection Grade and Senior Selection Grade from 1.4.1975 and 01.04.1981, respectively, was cancelled purportedly in view of the fact that the order and judgment of this Hon‟ble Court in C.W.J.C. No. 1801/90 had been set aside by the Supreme Court of India, but ignoring the fact that the petitioner had been granted his due promotion in accordance with the order and judgment of this Hon‟ble 2 Court in CWJC No. 3420/88, which judgment was not appealed against and which became final; and further, praying for quashing of the letter issued under the signature of Senior Accounts Officer of office of Accountant General (A&E)-II, Bihar, Patna dated 22.4.1997 by which the Under Secretary to Government in Department of Health, Medical Education and Family Welfare was informed that the alleged excess payment consequent upon the cancellation of the said notification dated 11.4.1994 the salary already paid to the petitioner for the said Junior Selection Grade and Senior Selection Grade is to be proportionately adjusted by withholding gratuity and leave encashment amount due to the petitioner, and further, for issuance of a writ in the nature of a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to pay the petitioner his full amount of gratuity and leave encashment payment along with interest and allow him all the consequential benefits arising from the aforesaid reliefs.” In respect of the aforementioned prayer, learned counsel for the petitioner before make his submission, has drawn attention of this Court towards the supplementary affidavit filed by the petitioner on 14.12.98 wherein it has been stated that during the pendency of this writ petition whatever promotions were cancelled by the impugned order dated 17.2.1997 were restored to him from a subsequent date vide order dated 3 18.7.1998. In this context, paragraph 2 and 3 of the said supplementary affidavit would be relevant and is quoted hereinbelow; “2. That it is most humbly stated and submitted that during pendency of this writ petition the respondent authorities granted two promotions to the petitioner namely senior selection grade and suppertime scale. The Senior Selection Grade (12 ½ %) promotion in the scale of rs.4100-125-4800-150-5300/- was granted to the petitioner vide notification no. 225(4) dated 25.3.98 issued under signature of Deputy Secretary to the government. This Senior Selection Grade was granted to petitioner with effect from 1.4.1987. The said notification dated 25.3.98 was enclosed by respondents in their counter affidavit and petitioner was shown at serial no. 135 in that notification. 3. That furthermore it is stated that the petitioner was granted further promotion in suppertime scale (2 ½ %) scale Rs.4300- 125-4900-150-5550/- vide departmental notification no. 408(4) dated 18.7.98 issued under signature of Deputy Secretary to Government. It is relevant to mention here that the said promotion in suppertime scale was granted to the petitioner with effect from 1.11.1995 to 31.12.96 the date of retirement of petitioner. The petitioner‟s name was shown at serial no. 204 in the notification dated 18.7.1998.” Counsel for the petitioner however would submit that if this court would hold the impugned order to be bad the earlier promotion of the petitioner would 4 get restored and as such writ petition still survives for its being decided on merits. Counsel for the State in this context would submit that dates of promotion of the petitioner had to be revised by cancelling his earlier order of promotion only because the Government had to promote 10 persons declared senior to the petitioner under the orders of the Supreme Court and accordingly when the numbers of posts were limited the principle of 'last come first go' had to be strictly followed and the earlier promotion granted to the petitioner and others was cancelled but then as the petitioner eventually also had been found to be entitled for such promotion from a subsequent date those were notified on 18.7.1998. Accordingly, the petitioner has also been given the consequential monetary benefit as is also admitted by the petitioner in the supplementary affidavit. On a perusal of the materials on record, this Court is satisfied that the impugned order of cancellation of promotion of the petitioner does not suffer from any error inasmuch as the same was only a fall out of the judgment of the Apex Court in the case of Dr. Akahuri 5 Ramesh Chandra Sinha who having lost an inter parte seniority dispute with the petitioner before this Court had ultimately been able to get his seniority restored by taking into account his earlier services rendered in the military services under the order of Apex Court. Once this aspect would become clear that the promotion given to the petitioner's promotion on the earlier seniority list could not have been continued inasmuch as the consequence of the judgment of the Apex Court allowing seniority of Dr. Akahuri Ramesh Chandra Sinha with the petitioner had to work out to its final conclusion, there would be no difficulty in holding that the petitioner's earlier order of promotion had to be revised by way of passing the impugned order and the petitioner can also not make any complaint in this regard as he was also a party to the aforesaid Supreme Court order deciding interse seniority between him and Dr. Akhauri Ramesh Chandra Sinha. The next limb of submission of learned counsel for the petitioner was that persons junior to the petitioner were retained on such promotional post and only his promotion was cancelled. Unfortunately, there is no 6 pleading to this effect and only paragraph referred by the counsel would only show that he had compared his case with Dr. Prabhash Chandra, a person of reserved category who had to earn his promotion within his quota and therefore there can be no comparison with his case and the case of the petitioner. That being so, this Court would not find any merit in the challenge of the petitioner to the impugned order cancelling his promotion. The petitioner however has genuine grievance with regard to recovery of Rs.84,053/- being the excess amount paid to the petitioner on account of his earlier promotion which was cancelled due to the Supreme Court judgment in the case of Dr. Akahuri Ramesh Chandra Sinha. In the opinion of this Court, such amount could not be recovered from the petitioner inasmuch as his earlier promotion was given under the government policy by not giving seniority of period of service in Armed Force to of Dr. Akahuri Ramesh Chandra Sinha or similarly situated persons who were initially recruited in Bihar Health Service after their service rendered in Indian Army. 7 In that view of the matter, if the seniority list as prepared by the State Government had been set aside by the Supreme Court and the petitioner had earned his promotion on the basis of earlier seniority list he cannot be said to be at fault much less making any misrepresentation or fraud so as to also become liable for recovery of amount drawn by him under his earlier valid order of promotion till it was cancelled by the impugned order. Consequently, this Court would direct the authorities to refund a sum of Rs.84,053/-, if not already refunded, from any of his receivable amount including his gratuity. Such refund, if not already made to the petitioner must be made to him within a period of six months from the date of receipt/production of a copy of this order. With the aforementioned observation and direction, this writ petition is disposed of. kanchan/ (Mihir Kumar Jha, J.)