WA 29/2009 BEFORE HON’BLE THE CHIEF JUSTICE MR. MADAN B.LOKUR HONBLE MR. JUSTICE A.K.GOSWAMI JUDGMENT AND ORDER (A.K.Goswami, J) This Writ appeal is directed against the judgment and order dated 8/5/20 07 passed by the learned Single Judge in W.P(C) 847/2002, whereby the writ petit ion was allowed by setting aside the orders impugned in the said petition, namel y, order dated 6/7/01, whereby the promotion of the writ petitioner to the post of Deputy Superintendent Engineer (Civil) for short, Dy.S.E (Civil), with effect from 1/1/1998 was withdrawn in view of his failure to move on transfer to Weste rn Regional Business Centre (for short ’WRBC’) and consequently withdrawing the joining report submitted by the writ petitioner/respondent no.1 on promotion and re-fixing his scale of pay with effect from 1/1/98 as also the order dated 11/9 /01 by which amount of recovery to be made from the writ petitioner/respondent n o.1 was worked out. 2. The writ petitioner/respondent No.1, while he was working as Executive E ngineer (Civil), for short, E.E (Civil), at Eastern Region Business Centre (for short ’ERBC’), ONGC, Sibsagar, was transferred to WRBC by order dated 5/3/98. On the basis of the representation dated 9/3/98, the ONGC authorities, by order da ted 12/5/98 deferred such transfer up to 15/5/99 with a condition that thereafte r, he would automatically stand relieved for joining at his place of posting at WRBC. By an order dated 22/6/98, issued by the appellant No.4, the writ petition er was promoted along with two other officers to the post of Dy.S.E(Civil) with effect from 1/1/98 under a scheme called Quantification Scheme and the writ pe titioner took charge of the promoted post of the Dy.S.E(Civil) at ERBC, Nazira i tself. Thereafter, the petitioner filed a representation dated 31/3/99 for cance llation of his transfer order dated 5/3/98 on the ground of education of his chi ldren. The representation was accompanied by an undertaking given by him to the effect that he would forgo his future promotion and he would not have any claim for consideration of his case for his future promotion. While the request made b y the petitioner for his transfer back to ERBC was pending consideration,the ONG C authorities, by an order dated 10/5/99, transferred him from Sibsagar to Lakwa . On 9.5.99, an order was issued by the Respondent No.4 disallowing his request for cancellation of transfer. The appellant No.4 also issued an order dated 9/5/ 01 cancelling the transfer order dated 5/3/98 and reverting him to the post of E .E (Civil) from the post of Dy.S.E(Civil). Order dated 9/5/01 was followed by th e order dated 6/7/01 about which reference has already been made. An appeal was submitted by the petitioner on 11/7/01 followed by letter dated 30/7/01 as an ad dendum to the appeal and while the said appeal was pending, an amount of Rs.10,0 00/- was recovered from the salary of the petitioner in pursuance of the order d ated 6/7/01. During the pendency of the appeal, order dated 11/9/01 was issued. The appeal filed by the petitioner was also not accepted by the competent author ity and on the aforesaid broad facts, the writ petitioner approached this Court by means of an application under Article 226 of the Constitution of India. The a ppellant had filed an affidavit justifying the cancellation of the promotion ord er and the order of recovery for the excess amount drawn by him while he was in the promotional post. The appellant relied on the conditions attached to the pro motion order dated 22/6/98 and the provisions contained in Clause 7(25) (g) of t he ONGC Recruitment and Promotion Regulation, 1980, for short, the Regulation. W hile Regulation 7(25) (g) of the Regulation casts an obligation on every promote e officer to join at their place of posting within a period of 90 days from the date of issuance of promotion order failing which the promotion order shall suo- moto become invalid and withdrawn, the conditions 2,3 and 4 of the promotion ord er dated 22/6/98 provide that though on promotion, an officer may take charge of the promoted post of Dy.S.E(Civil) at the present place of posting, they would stand relieved of their duties on or before the period indicated against each t o join at the place of posting and that they must join within the outer limit of 45 days from the order of promotion, failing which the promotion order would al so become invalid and shall be treated as cancelled and withdrawn automatically. 3. It would appear the writ petitioner made three-fold arguments before the learned Single Judge. The first contention advanced was that the cancellation o f the promotion by order dated 9/5/01 was illegal because of the fact that after he had assumed charge of the promoted post at ERBC, he was transferred from Si bsagar to Lakwa. With regard to the direction for recovery of amount, it was con tended that such recovery is bad because it was sought to be effected without is suing any show cause notice or giving any opportunity to justify his stand and l astly, it was contended that he having retired in the month of August 2006, orde rs impugned would have adverse consequences upon him. The appellant had contende d that the writ petitioner having failed to comply with the conditions laid down in the promotion order and in view of Clause 7(25) (g) of the Regulation, no ca se was made out for interference and the orders dated 6/7/01 and 11/9/01 were ba sically sequel to the order of cancellation of the promotion order. 4. The learned Single Judge on consideration of the materials on record cam e to the conclusion that the writ petitioner had failed to comply with the condi tions incorporated in the promotion order by not joining in his promoted post at WRBC and therefore, having regard to the terms and conditions of the promotion order as well as Clause 7 (25) (g) of the Regulation, there is no illegality in respect of cancellation of the order of promotion. The learned Single Judge also took note of the fact that till the order dated 6/7/01, the petitioner had cont inued to serve as Dy.S.E(Civil). The learned Single Judge also held that no noti ce was issued before issuing the order on recovery and therefore, it militated a gainst the principle of natural justice. Further, there being no requirement in the Regulation in force that the financial benefit extended during the period of holding of promotional post has to be refunded if any officer is demoted subseq uently, the learned Single Judge made a determination that recovery is not susta inable in law. On the above premises, the learned Single Judge set aside the ord ers dated 6/7/2001 and 11/9/2001, which were annexed to the writ petition as Ann exure IX and XII, respectively. 5. We have heard Mr. P.K. Roy, learned counsel for the appellants and Mr. S . Haque, who appears for the sole respondent/writ petitioner. 6. Mr. Roy, learned counsel for the appellants has submitted that in the fa cts and circumstances of the case, it is immaterial that the petitioner had cont inued to work in the promoted post till 6/7/2001 inasmuch as the consequence and effect of failure of the writ petitioner to act in terms of the order of promot ion and the Clause 7(25) (g) of the Regulation, the promotion order had become i nvalid suo-moto and therefore, it must be held that there is no promotion at all . He also urges that the principles of natural justice cannot be invoked in the instant case in respect of the recovery sought to be effected as the same was no t by way of penal measure, but merely a consequential order following cancellati on of the order of promotion. He has also submitted that the learned Single Judg e committed error of law in setting aside the order dated 6/7/2001 while upholdi ng the cancellation order dated 9/5/2011. The counsel of the writ petitioner/res pondent, on his part, supported the impugned judgment. 7. The contents of the order dated 9/5/2001 is as follows:- Transfer of Shri M.N. Mishra, Dy.SE(Civil), CPF No.46044 from ERBC to WRBC orde red vide office order No. TBG/37(2)/ATC-Civil/98 dated 5.3.98 is hereby cancelle d under the following conditions: i) Shri M.N. Mishra, will be reverted to the post of Executive Engineer (Ci vil) and will continue to serve as Executive Engineer (Civil) for the remaining period of his service in the Corporation. ii) He will not have any career growth in the services of Corporation. iii) His promotion to the post of Dy.Suptdg. Engineer (Civil) w.e.f.1.1.98 st ands withdrawn in view of his failure to move on transfer to WRBC based upon his undertaking. 8. From the aforesaid order it is clear that promotion of the writ petition er to the post of Dy.S.E(Civil) with effect from 1/1/1998 was withdrawn. The lea rned Single Judge has, as indicated earlier, did not interfere with the aforesai d order dated 9/5/2001. 9. It would also be appropriate to extract herein below the contents of the order dated 6/7/2001: - As per Office order No.47/1686/89/TBG dated 9.5.2001 received from Manager (P& A)-TBG, ONGC, Dehradun, the promotion of Shri M.N. Mishra, ID. No.46044 to the p ost of Dy.SE (Civil) w.e.f/1/1/98 stands withdrawn in view of his failure to mov e on transfer to W.R.B.C.. Accordingly the joining report submitted by Shri Mishra on promotion as Dy.SE (C ivil) is hereby withdrawn and his pay is hereby refixed w.e.f 1.1.98 in the scal e of Rs.13750/- - 18700/- Date Pay refixed Pay Drawn 1.1.98 Rs.16086 + 726/- S.P Rs.17051+726/- S.P 1.1.99 16729 + 726/- 17733 + 726/- 1.1.2000 17398 + 726/- 18442 + 726/- 1.1.2001 17974 + 726/- 19180 + 726/- 10. The aforesaid order would indicate that order dated 6/7/2001 was issued as a corollary to the order dated 9/5/2001 and accordingly, his joining as Dy.S. E(Civil) was withdrawn and his pay was re-fixed with effect from 1/1/1998 in the pay scale of Rs.13750-18700/-. 11. The writ petitioner was promoted as Dy.S.E(Civil) w.e.f. 1/1/1998. His p romotion having been withdrawn/cancelled by order dated 9/5/2001, necessarily, t he pay of the writ petitioner has to be fixed w.e.f.1/1/1998 in the appropriate scale of pay. Therefore, we are in agreement with the counsel for the appellants that there is no infirmity with the order dated 6/7/2001, and to that extent, t he learned Single Judge was not correct in setting aside the said order. 12. With regard to the recovery sought to be effected from the pay of the wr it petitioner, we find that the learned Single Judge had taken note of all relev ant factors while coming to the conclusion that recovery sought to be effected b y order dated 11/9/2001 is legally not tenable. There is no dispute that the wri t petitioner continued to work as Dy.S.E(Civil) till 6/7/2001. We are of the opi nion that the writ petitioner is entitled to the salary and emoluments of the hi gher post of Dy.S.E(Civil) so long as he had actually served in that post, notwi thstanding the fact that such promotion was cancelled later on. Accordingly, we repel the contention that the writ petitioner’s continuance of service as Dy.S.E (Civil) should be considered altogether irrelevant and immaterial. Therefore, th e learned Single Judge was right in interfering with the order dated 11/9/2001. While protecting the salary and emoluments drawn by the writ petitioner for the period he had served as Dy.S.E.(Civil) and ordering that no recovery shall be ma de, we also hold that his pay is to be re-fixed as contained in the order dated 6/7/2011 for all other purposes. 13. In the result, the writ appeal is partly allowed as indicated above. 14. No cost.