IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No. 7596 of 2003 Yogendra Choudhary, Son of late Motilal Choudhary, Resident of Village Baruraj, Police Station Baruraj, District Muzaffarpur. -------- Petitioner Versus 1. The State of Bihar through the Director (Primary Education), Bihar, Patna. 2. The Director (Primary Education), Bihar, Patna. 3. The Regional Deputy Director of Education, Tirhut Division, Muzaffarpur. 4. The District Education Officer, Sitamarhi. ---------- Respondents ----------- 5 27.08.2010 Heard learned counsel for the petitioner and counsel for the State. The prayer of the petitioner in this writ application reads as follows:- “1. That this is an application for grant of an appropriate writ for quashing the office order of the Regional Deputy Director of Education, Tirhut Division, Muzaffarpur issued under memo no. 1198 dated 30.6.2003 (Annexure-3) cancelling the promotion of the petitioner in Intermediate and Graduate Trained Scale (with retrospective effect) and directing him to deposit the excess amount drawn by him on account of his previous promotion on the ground that his promotions has been affected on account of preparation of fresh seniority list of Matric Trained Teachers 2 in the light of the order passed by this Hon’ble Court in C.W.J.C. No. 1408 of 1991 (Ramdeni Baitha and others Versus The State of Bihar and others) and the Departmental letter No. 313 dated 9.7.2001, whereby three teachers of scheduled caste category has been placed over the petitioner in the Seniority list.” As with regard to the aforementioned prayer, learned counsel for the petitioner would submit that by the impugned order dated 30.6.2003, the earlier promotion of the petitioner has been cancelled on a non- existing ground and that the decision to also recover excess amount on account of such promotion is totally unsustainable on facts and in law. In this context, he would submit that if on account of the revision of the gradation list, the petitioner’s seniority went down, that would not mean that the earlier promotion given to him was on account of any fraud or misrepresentation so as to make the petitioner liable for refund of the amount of salary drawn by the petitioner pursuant to the order of his promotion. Counsel for the State very fairly would submit that in the given set of facts 3 and circumstances as the promotion of the petitioner was only cancelled on account of the revision of the seniority list and a direction given by this Court in CWJC No. 1408 of 1991 for considering the promotion given on the basis of the revised seniority list, the competent authority, having found that three persons, junior to the petitioner, having been placed higher in the gradation list, were entitled to be given the promotion in which case, the petitioner’s earlier promotion could not be saved. He has also commended for acceptance of the remaining part of the order, inasmuch as, he is of the view that once the petitioner’s promotion was found to be illegal, he would be liable to refund the excess amount of salary drawn by him on account of such illegal promotion. In the opinion of this Court, once it is found that the earlier promotion given to the petitioner was without any fraud or misrepresentation on his part, merely because the respondents could later on redraw a final gradation list in compliance of the order of this Court in CWJC No. 1408 of 1991 for 4 reconsidering the case of Ramdeni Baitha and others, the petitioner therein, that would not mean that even if the petitioner’s promotion could not be saved for giving promotion to his seniors in the scheduled caste category, that would lead to recovery of the salary. As noted above, the petitioner did not misrepresent his seniority and therefore, the petitioner cannot be made liable for refund any amount of salary even if the order of promotion was subsequently cancelled on account of the preparation of fresh final gradation list. The next submission of Mr. V.R.P. Singh, learned counsel for the petitioner that if 16% reservation for scheduled case is enforced, there being 115 post of B.A. Trained and 78 posts in the I.A. Trained in the 115 basic schools, the petitioner’s promotion was not required to be interfered with either on the post of B.A. Trained scale of pay or on the post of I.A. Trained scale of pay. The assumption of Mr. Singh of 16% reservation prior to the year 2000, creation 5 of the State of Jharkhand, for the category of scheduled caste is wholly misconceived, inasmuch as, prior to 15.11.2000, the reservation percentage for the scheduled caste was only 14%. Mr. Singh agrees that if 14% reservation is applied, the petitioner’s promotion, in presence of his seniors as shown in the final gradation list, could not be saved. Mr. Singh, however, would submit that there being also 86 post of I.A. Trained, probably the petitioner could have justifiably by retaining his promotion on I.A. Trained may not from the same date of his earlier promotion but from a subsequent date when such I.A. Trained post had become vacant on account of promotion of his seniors to the B.A. Trained Scale of Pay. This aspect of the matter, however, having been not specifically raised in this writ petition, would require fresh application of mind and, therefore, this Court would give liberty to the petitioner to file a compact self contained representation enclosing his documents in support of his 6 claim for grant of Promotion in I.A. Trained Scale of Pay on the vacancy which according to him would have become available on account of promotion of his seniors. If the authority would find that there were vacancies on the I.A. Trained Scale of Pay on the date the order of cancellation of promotion of the petitioner was passed i.e. 30.6.2003, he would at least restore the promotion of the petitioner in I.A. Trained Scale of Pay, if there be any junior to the petitioner amongst the scheduled caste category to be continuing with such promotion. This Court, however, would make it clear that the effective date of promotion of the petitioner in the I.A. Trained Scale of Pay may not remain the same which was given to him earlier and could be changed on account of seniority position. This exercise, however, must be completed by the Regional Deputy Director of Education, Tirhut Division, Muzaffarpur within a period of six months from the date of filing of the representation by the petitioner enclosing also a copy of this order. Accordingly, this application is 7 allowed in part by quashing the impugned order dated 30.6.2003 as contained in Annexure-3 so far it relates to the recovery of excess salary and the matter, relating to grant of promotion of the petitioner in I.A. Trained Scale of Pay, is remitted back in the light of the aforementioned observation and direction. Rsh (Mihir Kumar Jha, J.)