IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8290 of 2002 SACHCHIDANANDA SINHA, son of Late Karu Sinha resident of at and post office Mirnagar, via and police station Sarmera, District Nalanda at present C/o Sanjal Kirana & General Store, Nalanda Medical College Hospital Road, Agam Kuan, Patna- 800007. … Petitioner. Versus 1. THE STATE OF BIHAR 2. The Director-in-Chief, Health Services, New Secretariat Building, Bihar, Patna-800015. 3. The Director, Health Services, New Secretariat, Building, Bihar, Patna 800015. 4. The Deputy Director, Health Services (Transport), Health Services Workshop, Gulzarbagh, Patna-80007. .. Respondents. 4. 21.06.2010 Heard Mrs. M. Chatterjee, learned counsel for the petitioner and counsel for the State. The prayer of the petitioner in this writ petition reads as follows:- “(i) That an appropriate writ may be issued commanding upon the respondent authority to fix the pay of the petitioner in the scale of Rs.5500-9000, from 1.1.1996 consequent upon his promotion as contained in Annexure-4 to this writ petition and consequential benefit. (ii) That an appropriate writ may be issued commanding upon the respondent authority to pay the petitioner difference of arrears of salary with interest consequent upon his promotion order as contained in Annexure-4 to this writ petition. (iii) That an appropriate writ may be issued commanding the respondents to issue necessary order to grant the petitioner 3 (three) stagnation increments from 1.1.1996, 1.1.1988 and 1.1.1996 and to pay him the remaining amount of salary and to 2 fix his pension and gratuity after granting the promotion.” Mrs. Chatterjee with reference to the aforementioned prayer would submit that not only they alone are the grievance of the petitioner but on account of subsequent event as explained in I. A. No. 6097 of 2004 the petitioner has to also amend the prayer for seeking quashing of Annexure 6 and Annexure 11 whereby and whereunder certain benefits given to the petitioner by virtue of implementation of the order of this Court dated 12.11.1999 in CWJC No. 2226 of 1999 by issuing the order of the Director- in- Chief vide Memo No. 206(22) dated 24.2.2000 has been amended/ modified and the petitioner‟s promotion in the pay scale of Rs.1640-2900 has been sought to be rescinded by substituting his promotion only in the pay-scale of Rs.1500-2750. Mrs. Chatterjee further submits that this order passed on 23.9.2002 in fact has led to its consequence inasmuch as the petitioner was also subjected to recovery of Rs. 1,13,249.60 vide order dated 26.11.2004 and the amount has been recovered from the petitioner without 3 any rational basis. Mrs. Chatterjee therefore would submit that once a financial benefit has been given to the petitioner and that too in terms of order of this Court the same could not have been withdrawn without giving an opportunity of hearing to the petitioner. She has also explained that once the order contained in Annexure 4 was to the effect of the petitioner being placed in the pay-scale of Rs.1640-2900 with effect from 1.4.1987, the petitioner would be automatically eligible and become entitled for grant of its replacement pay-scale of Rs.5500-9000 with effect from 1.1.1996 in terms of government decision accepting the report of pay revision committee. Counsel for the State on the other hand would submit that the scope of writ petition cannot be expanded beyond original relief for which only the counter affidavit was filed. He would submit that once Annexure A i.e. Annexure-6 the order dated 23.9.2002 was passed in partial modification to the earlier order dated 24.2.2000 (Annexure-4), it would be clear that the petitioner was not entitled for any fixation of pay on the 4 basis of the promotion in the pay scale of Rs.1640-2900 inasmuch as the last promotion of the petitioner remained confined only to 1500-2750 in which pay scale he retired on 31.5.1996. In the opinion of this Court, the preliminary objection of the State with regard to I. A. petition is not correct inasmuch as it is same annexure A passed during the pendency of this writ petition which has been assailed by way of Annexure- 6 and since by that time the further actions were taken on the basis of Annexure- A/ Annexure-6 including passing of the order seeking to revise the pension and other retrial benefit by Annexure 10 or making recovery, the petitioner could have challenged the same in this very writ petition. In that view of the matter the prayer made for amendment of the writ petition for challenging the correctness of Annexure 6 andAnnexure 11 is hereby allowed. Mrs. Chatterjee submits that from the tenor of the order as contained in Annexure 11, it is clear that the petitioner was not given any opportunity of hearing and rather the authority had made self appraisal of the entire service history and had come out to a conclusion that the 5 petitioner was not entitled for certain benefit in view of the order passed in Annexure- A or Annexure-6. This plea of violation of the principles of natural justice however cannot be decided in favour of the writ petitioner because the petitioner has not made a clear and categorical statement as with regard to passing of the order contained in Annexure 6 and Annexure 11, two orders taking away the promotional benefit in the pay- scale of Rs.1640-2900 and/or taking away certain monetary relief granted on the basis of the aforementioned promotion or purported compliance of the order of this Court without even affording an opportunity of hearing. It is well settled that the principles of natural justice is no unruly horse and its application has to be made in the facts and circumstances of each case. The question, therefore, would arise as to whether the order contained in Annexure- 6 or Annexure- A to the counter affidavit is correct ?. This court would find that it was a case of promotion to the petitioner which was kept pending on account of certain disciplinary proceedings and/or suspension continuing 6 against him. Subsequently, when no order of punishment was passed the petitioner was sought to be given the benefit of such pay-scale and consequential higher pay- scale. Consideration given to the petitioner therefore for grant of pay-scale of assistant with effect from 1.4.1984 in the pay-scale of Rs.785-1210 and grant of pay-scale of Rs.1500-2750 with effect from 1.1.1986 and further grant of super time pay-scale with effect from 1.4.1987 in fact was not legally permissible as was ordered by the Director-in-Chief in his communication dated 24.2.2000 (Annexure-4) because either the petitioner could be given time bound promotion or regular promotion in the cadre by way of junior selection grade, senior selection grade and super time pay scale. For all this regular promotion no one can be given such promotion in a close succession as was sought to be given to the petitioner with effect from 1.4.1984, 1.4.1986 and 1.4.1987 without completing the period of „Kalawadhi‟. This aspect which has been explained by the respondents in the counter affidavit by stating that no person either senior or junior to the petitioner was either promoted in the pay-scale of Rs.1640-2900 has not been controverted by the petitioner 7 by filing any rejoinder affidavit. Once this aspect of the matter has become clear, the petitioner cannot claim grant of promotion in the pay-scale of Rs.1640-2900 which is the super time pay- scale as a matter of right, the petitioner in fact would be deemed to have retired in the pay-scale of Rs.1500-2750 and to that extent this Court does not find any error in the order contained in Annexure-6. The next question would be if annexure 6 is valid order whether annexure 11 can be faulted on fact or in law. The moment this Court would find that the petitioner was not entitled to promotional benefit in the pay-scale of Rs.1640-2900 and had to retire in the pay scale of Rs.1500-2750 which is his last promotion, the automatic conclusion would be that any payment made to him earlier was capable of being recovered. The further plea of Mrs. Chatterjee that interest amount which was paid on salary or other sum beyond retrial benefit was also under the order of this Court has to be only noted for its being rejected. This court in its earlier order in no uncertain terms had made it clear that the petitioner shall be 8 entitled for payment of interest @ 10 per cent only on his post retrial benefit, except the amount of provident fund which had to be governed by statutory rate of interest. In that view of the matter, this Court has no hesitation in coming to the conclusion that the petitioner was not entitled to get any amount of interest on salary, arrears or current or the amount of promotional benefit arrears or otherwise. Once this court would come to unequivocal conclusion it would not find any error in Annexure 11 except that Mrs. Chatterjee would point out that the petitioner has not been paid full salary or full payment even in terms of the order of this court dated 12.11.1999 passed in CWJC No. 2226 of 1999 (Annexure-3). In view of the fact that the certain development took place after passing of the order of this Court and the payment made earlier under order of the Director-in- Chief dated 24.2.2000 (Annexure-4) was sought to be modified/ partly rescinded by passing order on 23.9.2002 (Annexure-6/Annexure-A) and was followed by consequential order of the respondents on 26.11.2004 (Annexure-11) this Court would only give liberty to the petitioner to approach the Director-in-Chief to show as to 9 the amount could not have been recovered in terms of the order of this Court. It is made clear that the petitioner‟s last salary will be fixed in the pay-scale of Rs.1500-2750 as has been directed in the order dated 23.9.2002 (Annexure- 6). On the basis of the salary entitled to the petitioner on the date of superannuation whatever dues was payable to the petitioner either by way of retiral benefit or salary emolument will be recalculated and if it is found that in terms of order of this court any thing more is payable and has been even recovered by way of Annexure 11 the same will be refunded to the petitioner. With the aforementioned observation and directions, this writ petition is disposed of. kanchan/ (Mihir Kumar Jha, J.)