IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2186 of 2007 Gowardhan Prasad, S/O- LATE RAMESHWAR MAHTO, RESIDENT OF VILLAGE- OPE, P.S. EKANGERSARAI, DISTRICT- NALNDA……PETITIONER. Versus 1.The State Of Bihar THROUGH THE SECRETARY, CO- OPERATIVE DEPARTMENT, BIHAR, PATNA. 2. THE REGISTRAR, CO-OPERATIVE SOCIETIES, BIHAR, PATNA. 3. THE JOINT REGISTRAR, CO-OPERATIVE SOCIETIES, PATNA DIVISION, PATNA. 4. THE DISTRICT CO-OPERATIVE OFFICER, NALANDA AT BIHAR SHARIF :---RESPONDENTS. ---------------------------------- For the petitioner :- Mr. Binit Kumar, Advocate. For the State :- Mr. S.K.Saraf, A.C. to S.C.16. ======= 4. 17.08.2011. Heard learned counsel for the petitioner and the State. 2. Petitioner superannuated while serving as a clerk in the Co-operative Department of the State with effect from 31.10.2001. He has filed this writ petition questioning the order of the Registrar, Co-operative Societies, Bihar, Patna bearing Memo No. 6762 dated 30.11.2006, Annexure-1, whereunder second time bound promotion granted to the petitioner with effect from 06.04.1990 has been cancelled. Earlier petitioner has filed C.W.J.C.No. 1030 of 2004 for a direction to the State-respondents to consider his case for grant of first, second time bound promotion with all consequential benefits from due dates. Aforesaid writ petition was disposed of under orders dated 04.08.2005 (Annexure-4) taking note of the order bearing Memo No. 3448 dated 03.08.2005, Annexure-3 whereunder first and second time bound promotion was granted to the petitioner with stipulation that the promotions were subject to approval and correction by the Finance Department of the Government and petitioner shall be liable to 2 refund the amount paid in lieu of promotion. After disposal of the said writ petition second time bound promotion granted to the petitioner with effect from 06.04.1990 under order bearing Memo No. 3448 dated 03.08.2005, Annexure-3 has been cancelled under the impugned order dated 30.11.2006, Annexure-1 in the light of the advice received from the Finance Department during consideration of the legality of the promotion for granting approval. 3. This writ petition challenging the aforesaid order has been filed stating that once the petitioner was allowed second time bound promotion under order bearing Memo No. 3448 dated 03.08.2005, Annexure-3 the authorities had no jurisdiction to cancel the same without approval of the High Court as also without hearing the petitioner. In this connection it is pointed out that first time bound promotion was allowed to the petitioner with effect from 01.04.1981 without passing the departmental accounts examination as during the period between 01.05.1980-29.03.1982 the clerks serving in any of the department of the State Government were exempted from appearing in the departmental accounts examination. It is submitted on behalf of the petitioner that once the petitioner was granted first time bound promotion with effect from 01.04.1981 which is within the exemption period petitioner is not required to pass the departmental accounts examination for being granted second time bound promotion and taking into account such aspect of the matter the order bearing Memo No. 3448 dated 03.08.2005, Annexure-3 was issued. 4. To appreciate the aforesaid contention of the 3 counsel for the petitioner it is necessary to closely peruse the order bearing Memo No. 3448 dated 03.08.2005, Annexure-3 wherefrom it appears that petitioner was allowed first time bound promotion with effect from 01.04.1981 without passing the departmental accounts examination as during the period between 01.05.1980-29.03.1982 the clerks serving in any of the department of the State were exempted from passing the departmental accounts examination. After taking note of the aforesaid fact the order states that petitioner completed 25 years of satisfactory service on 06.04.1990 and became ripe for being granted second time bound promotion with effect from 06.04.1990 which was provisionally granted with effect from 06.04.1990 subject to approval and correction by the Finance Department of the Government with further observation that if such grant is found erroneous by the Finance Department, necessary correction and recovery of the amount shall be made from the petitioner. Aforesaid stipulation has been made in paragraph 5 of the said order dated 03.08.2005. From perusal of the order dated 03.08.2005 it is thus quite evident that the grant of second time bound promotion to the petitioner with effect from 06.04.1990 was wholly provisional and subject to approval and correction by the Finance Department. The order dated 03.08.2005 also does not refer to any direction from the High Court to grant promotion to the petitioner. The grant of second time bound promotion to the petitioner was wholly provisional subject to approval and correction by the Finance Department of the Government. The competent authority who issued order dated 03.08.2005 granting promotion to the 4 petitioner, in my opinion, was competent to cancel the second time bound promotion granted to the petitioner in the light of the subsequent advice of the Finance Department rendered after considering the legality of the said promotion for its confirmation. 5. Learned counsel for the petitioner with reference to the judgment of the High Court in the case of Brijanand Ojha Vs. The Bihar State Housing Board & Ors., reported in 2003(4) PLJR 443 submitted that under circular letter no. 4178 dated 12.08.1992 it was provided that the clerks working in the different works department of the Government who were allowed promotion prior to 01.09.1983 shall not be reverted from the promoted post on the ground that promotee has not passed the examination conducted by the Revenue Board. With reference to the said circular dated 12.08.1992 and the judgment in the case of Brijanand Ojha (supra) learned counsel for the petitioner submitted that as petitioner was allowed first time bound promotion with effect from 01.04.1981 which is prior to 01.09.1983 without passing the departmental examination he is also not required to pass the departmental accounts examination for being granted second time bound promotion with effect from 06.04.1990. In this connection learned counsel for the petitioner also relied on the unreported judgment of the Division Bench dated 14th July, 2011 passed in Letters Patent Appeal No. 626 of 2009 (Avinash Chandra Singh Vs. The State of Bihar and Ors.) Perusal of the said judgment indicates that relying on the aforesaid circular letter dated 12.8.1992 Division Bench set aside the order of the Single 5 Judge dated 8.4.2009 upholding the office order bearing Letter No. 250 dated 14.3.2009, cancelling first time bound promotion granted to the writ-petitioner/appellant Avinash Chandra Singh with effect from1.4.1981. 6. I regret not to accept the aforesaid submission. The circular letter no. 4178 dated 12.08.1992 has been issued by the State Government for protecting the promotion granted to the employees of the works department prior to 1.9.1983 who have earned promotion without passing the departmental accounts examination. Petitioner served the Co-operative Department which, in my opinion is not a Works Department, as such, petitioner is not well advised to place reliance over circular letter no. 4178 dated 12.08.1992 for protecting his second time bound promotion granted with effect from 6.4.1990 much after the cut off date i.e. 1.9.1983 fixed under circular dated 12.8.1992. Grant of 1st time bound promotion to the petitioner with effect from 1.4.1981 remained protected under circular dated 12.8.1992 as such was not rightly cancelled under the impugned order. Reliance placed by the petitioner over the Division Bench Judgment in the case of Avinash Chandra Singh (supra) is also misconceived as thereunder the Division Bench while setting aside the order of the learned Single Judge has set aside the order bearing Letter No. 250 dated 14.3.2009 cancelling the first time bound promotion granted to Avinash Chandra Singh under letter no. 1516 dated 1.9.1989 with effect from1.4.1981 as the said promotion was allowed prior to the cut off date i.e. 1.9.1983. 7. For the reasons aforesaid, I am not inclined to 6 interfere with the order cancelling the second time bound promotion granted to the petitioner under order dated 3.8.2005, Annexure-3 with effect from 06.04.1990. In this connection, I may indicate that the authorities under the impugned order itself have considered the case of the petitioner for grant of second Assured Career Progression from 12.09.2001, the date from which he has been exempted by the department from passing the departmental accounts examination. 8. Writ application stands dismissed. A.F.R. P.K.P. (V.N.Sinha,J.)