IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5589 of 1997 SHRIMAN NARAYAN UPADHAYAY, S/O LATE ALAKH NIRANJAN UPADHAYAY, R/O VILLAGE AND POST MANGRAON, POLICE STATION NASRIGANJ, DISTRICT ROHTAS, AT PRESENT POSTED AS SENIOR ACCOUNTS CLERK, MINOR IRRIGATION DIVISION, MOTIHARI. ..............PETITIONER. Versus 1.THE STATE OF BIHAR THROUGH THE SECRETARY, MINOR IRRIGATION DEPARTMENT, NEW SECRETARIATE, PATNA. 2.THE DEPUTY SECRETARY TO THE STATE GOVERNMENT, MINOR IRRIGATION DEPARTMENT, NEW SECRETARIATE, PATNA. 3.CHIEF ENGINEER, MINOR IRRIGATION DEPARTMENT, MUZAFFARPUR. 4.SUPERINTENDING ENGINEER, MINOR IRRIGATION DEPARTMENT, MUZAFFARPUR. 5.EXECUTIVE ENGINEER, MINOR IRRIGATION DEPARTMENT, DIVISION MOTIHARI. 6.SECRETARY CUM COMMISSIONER, FINANCE DEPARTMENT,OLD SECRETARIATE, PATNA. .............RESPONDENTS. ----------- 06/ 13.05.2011 No one appears for the petitioner. The relief prayed in this writ application reads as follows:- 'That this is an application praying for issuance of an appropriate writ in the nature of Certiorari, for quashing the order issued vide Memo No. 3774 dated 09.06.1997, whereby the First time bound promotion granted to the petitioner vide letter no. 59 dated 25.01.1988 was cancelled and also the second time bound promotion granted with effect from 04.11.1985 vide letter no. 284 dated 28.05.1988 was cancelled and second time bound promotion was refixed with effect from 27.12.1986, in revised pay scale of Rs. 1400-2600/-, and the excess amount drawn by the petitioner with effect from 01.04.1981 were ordered to be recovered from the salary of the petitioner and further for issuance of a writ, in the nature of writ of Mandamus, commanding the respondents not to deduct any amount from the salary of the petitioner which was rightfully given to him on the basis of the IVth Pay Revision Committee recommendation.'' From the pleadings on record this much is clear that the petitioner was initially appointed on the post of Correspondence Clerk (L.D.C) and thereafter, he had been again appointed afresh on a higher post of Accounts Clerk for which he did not possess the requisite qualification of Matriculation with mathematics. Consequently when the petitioner was given Time Bound Promotion while holding the post of Accounts Clerk by computing both the period of his work as Correspondence Clerk (L.D.C ) as well as Accounts Clerk, the same was definitely not in keeping with the Resolution of Finance Department dated 30.12.1981, laying down the scheme of time bound promotion. In fact this aspect of the matter has been fully explained in the counter affidavit, in paragraph no. 12 to 16 which reads as follows:- 'That with regard to the statements made in paragraph no. 9 of the writ application, it is submitted that the promotion to the petitioner as stated by the petitioner was not given under rule and principles laid by the Govt. Hence it was revised according to rule. That with regard to the statements made in paragraph no. 10 of the writ application, it is submitted that the first time bound promotion given by the Executive Engineer, Minor Irrigation Investigation Division, Darbhanga was illegal, beyond jurisdiction under the rule as stated by the petitioner. That with regard to the statement made in paragraph 11 of the writ application, it is submitted that the petitioner was given 2nd time bound promotion counting the date of initial appointment of the petitioner as L.D.C which was beyond the cadre of Accounts Clerk. Hence it was revised after due scrutiny. To arrest super time scale to the petitioner was not maintainable according to rule. That with regard to the statement made in paragraph 12 of the writ application, it is submitted that the petitioner did not possess the minimum requisite qualification of Accounts Clerk, i.e. the Matric with Mathematics or Commercial Accounts, so he was reverted to his old cadre post of correspondence clerk. On this ground he was given other promotional benefit of the cadre but after the order of this Hon'ble Court that order was withdrawn by the respondent State. That with regard to the statement made in paragraph no. 13 of the writ application, it is submitted that although the petitioner was given regular time bound promotion of the petitioner taking account of services from the initial date of appointment as L.D.C but when the file of regular/2nd time bound promotion was enclosed to Finance Department for consultation, the Finance Department reviewed his case and advised the administrative department to revoke his first time bound promotion as he had already got regular promotion to the post of Senior Accounts Clerk, hence the second time bound promotion was advised by the Finance Department in the revised scale of pay 1400-2600 and excess drawn by the petitioner was advised to be recovered. Hence the said revised order of his second time bound promotion was issued and the first time bound promotion given to him was cancelled accordingly.' From the reading of the aforementioned portion of the counter affidavit, it would thus be clear that the petitioner's entitlement in the second time bound promotion was itself in doubt and therefore, when the objection was raised by the Finance Department at the time of scrutiny of his second time bound promotion, the date of time bound promotion was shifted as per the Rules of the Government. The impugned order, to the extent, therefore has only shifted the date of time bound promotion of the petitioner either his first time bound promotion or the second time bound promotion and does not suffer from any error. This Cour would accordingly to that extent approve the decision of the competent authority in the impugned order in revising the date of promotion and pay scale to the petitioner. . This Court however, can not uphold the remaining part of the impugned order, wherein, recovery was also sought to be made from the petitioner by alleging that he had withdrawn amount not admissible to him and such excess amount was to be refunded by him. In fact there is nothing in the counter affidavit to show that such grant of time bound promotion to the petitioner was based on any fraud or misrepresentation made by the petitioner and thus the decision for recovery of excess amount from petitioner cannot be sustained. As a matter of fact, this Court by interim order dated 06.08.1997, had already stayed the recovery of the excess amount as contemplated in the impugned order and therefore, while disposing this writ application it is hereby directed that though the petitioner's pay scale and date of time bound promotion would be the same as recorded in the impugned order but he would not be subjected to recovery of any amount already paid to him. In other words, the post retirement benefits of the petitioner will be only paid by taking into account the pay scale as revised by the respondents in the impugned order but there would be no recovery of any amount from the petitioner already paid to him till the date of filing of this writ application. Since, the operation of impugned order was not stayed as a whole, any excess payment received by the petitioner after the date of impugned order to which he was not legally entitled, in view of the revision of the pay scale and refixation of his pay, the same will of course be recovered from him. With the aforementioned observations and clarification, this application is disposed of. Ranjan (Mihir Kumar Jha, J)