IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11346 of 2005 MAHESH PRASAD Versus THE STATE OF BIHAR & ORS ----------- 02/ 07.04.2010 Heard Mr. Pramod Kumar, learned counsel appearing on behalf of the petitioner, Mr. Pawan Kumar, learned assisting counsel to G.P. 14 for the State and Mr. Arun Kumar Arun for the Accountant General. With the consent of the parties, the matter has been taken up for disposal at the stage of admission. The petitioner prays for a direction to the respondent authorities for fixation of his pension and pensionary entitlements on the basis of the last salary drawn on the post of Lab Technician. Brief facts of the matter is that the petitioner was appointed on 6.10.1970 against the post of Insect Collector in the Fileria Control Unit, Bettiah in the district of West Champaran, vide memo no. 765 dated 6.10.1970 (Annexure-1). The petitioner was promoted to the post of Lab Technician (Prayogshala Pravaidhic) under memo no. 641 dated 24.5.1984 (Annexure-2). It so appears that after a lapse of nine years another order came to be issue bearing memo no. 429 dated 23.6.2003 (Annexure-B) withdrawing the promotions to the post of Lab Technician including that of the petitioner whose name appears at serial no. 16 of the said order (Annexure-B). The order as contained in Annexure-B was recalled vide another order issued from the office of the Assistant Director, Health Services - 2 - (Fileria Control, Bihar, Patna) contained in memo no. 954 dated 16.12.2004 (Annexure-3), whereby the reversion of the Lab Technician including that of the petitioner was set aside and their promotions were restored with effect from the date of reversion but with stipulation that for the period of reversion they would not be entitled for any further payment but that would not affect their continuity on the promoted post. The petitioner superannuated from the post of Lab Technician with effect from 31.12.2004. Although the retiral benefits were paid to him but being calculated on the basis of the salary attached to the post of Insect Collector and not that of the Lab Technician being the post held by the petitioner on the date of retirement. A counter affidavit has been filed on behalf of the State justifying the fixation of pension and pensionary entitlements of the petitioner on the post of Insect Collector. It is stated that the promotion of the petitioner to the post of Lab Technician was found to be irregular and the same was withdrawn vide memo no. 429 dated 23.6.2003 as contained in Annexure-B. In so far as the order of superannuation as contained in Annexure-4 is concerned which manifestly refers to the petitioner as a Lab Technician, it is stated that the same was a typographical error. The affidavit has been sworn by a Medical Officer, Primary Health Centre, Majhauliya on behalf of the respondent no. 5, the In-Charge, Officer of Filera Control Unit, Betiah, West Champaran. The statement made in the said counter affidavit in fact reflects insubordination on the part of - 3 - the said Officer who has chosen to ignore the order of restoration of promotion of the petitioner by the Assistant Director, Health Services who undoubtedly is a superior officer than the In-Charge, Fileria Control Unit. The respondent no. 5 could have been a controlling authority of the petitioner but he had no jurisdiction to override an order passed by a superior authority at the level of the Assistant Director. The statement made in the counter affidavit is reapprehensible to say the least. Undoubtedly the petitioner herein superannuated while holding the post of Lab Technician with effect from 31.12.2004 and that neither the order of restoration of promotion as contained in Annexure-3 nor the order superannuating him as Lab Technician as contained in Annexure-4 has either been rescinded by a superior authority or has been modified. That being the position the petitioner would be entitled for re-fixation of his pension and pensionary entitlements on the basis of last salary drawn on the date of his superannuation holding the post of Lab Technician and for arrears thereof. The respondent no. 5, In-Charge, Fileria Control Unit, Bettiah, West Champaran is directed to process the pension paper of the petitioner by carrying out the re-fixation within four weeks of receipt/production of this order and forward the same for necessary authorisation by the Accountant General and who would be under a duty to issue authorisation without delay and preferably within two weeks of receipt thereof. Needless to add that the entire exercise of re-fixation, re- - 4 - calculation and payment thereof should be carried out within a period of three months from the date of receipt/production of a copy of this order. The writ petition is allowed. S.Sb/- (Jyoti Saran, J.)