IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.731 of 2004 RAJENDRA PRASAD SRIVASTAVA SON OF SRI GAGANDEO PRASAD SHRIVASTAVA JUNIOR ENGINEER, DESIGN AND PLANNING DIVISION NO. 2, ANISABAD PATNA (NOW UNDER POONPOON FLOOD PROTECTION DIVISION, PATNA CITY AT KARBIGAHIA) PERMANENT RESIDENT OF VILLAGE BHATAWALIA, P.O. BHATAWALIA, P.S. GOBINDGANJ, DISTRICT EAST CHAMPARAN. Versus THE STATE OF BIHAR &ORS ----------- 4 29/06/2010 Petitioner is a retired government servant now. When the writ application was filed by him in the year 2004, he was aggrieved by a decision by virtue of which the benefit of first time bound promotion and second time bound promotion from the given date was sought to be withdrawn and recovery from the salary was also ordered to be made as would be evident from annexure-1 dated 18.10.2003. Stand of the petitioner is that the benefit of two promotions were given by the respondents way back which would be borne out from Annexures- 2 and 3. Petitioner was given corresponding revision in his pay by virtue of the two promotions and the decision continued right from the year 1988 till the impugned order contained in annexure-1 came to be issued. It is the stand of the petitioner that annexure-1 was issued unilaterally without even proper explanation being - 2 - sought for from him. Order impugned, therefore, deserves to be interfered with, if not quashed. When the matter was taken up in admission, an order of stay against recovery was issued on 9.11.2004. Writ application is being taken up for final disposal only now. In other words by virtue of order of stay there ought not to have been any recovery from the petitioner’s salary. Stand of the State in the counter affidavit is that the two promotions were given provisionally subject to approval by the Finance Department. When the matter was referred to the Finance Department, they found certain anomaly, one of them being that the benefit of the time bound promotion could accrue to the petitioner only from the date he was appointed as a Junior Engineer and not from a prior date when he was in the work charged establishment as a Supervisor. When this fact was noticed by the department, it decided to correct the mistake and the benefit which accrued to the petitioner. The decision of the State, therefore, was totally in consonance with necessary rules and circulars on this issue. Learned counsel for the petitioner thereafter submits - 3 - that the petitioner had derived the advantage of time bound promotions and corresponding revision of pay for many a years which was granted to him by the respondents without any misrepresentation or fraud having been played by him. According to him, it is the settled law that in such a situation no recovery can be ordered at a belated stage; more so at the time of superannuation of an employee and that too unilaterally in the manner in which it has been sought to be done. Learned counsel for the petitioner relies on a decision rendered by a Division Bench of this Court in the case of State of Bihar Vs. Ram Sharan Prasad Singh, reported in 2007(Supp.) PLJR, 223 in support of his submission. The law is well settled that unless the respondents establish that the petitioner had a role to play in begetting the benefit which he enjoyed, ordinarily no recovery is to be ordered if benefit had remained with the petitioner when it was conferred by the respondents by due deliberations. If the respondents were of the view that the benefit of first time bound and second time bound promotions issued to the petitioner was erroneous, then the department of finance ought to have verified the position within a reasonable time - 4 - frame. After more than 15 years the said benefit is sought to be taken away and recovery has been ordered. In view of the decision relied upon by the learned counsel for the petitioner, referred to above, and the general settled principle on this score, impugned annexure contained in annexure-1 stands quashed. In the result this writ application is allowed. AMIN (Ajay Kumar Tripathi, J.)