IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2123 of 2004 RAM EKBAL MUKHIYA SON OF RAGHUBIR MUKHIYA OF KUERPUR, P.S. PIPRA, DISTRICT EAST CHAMPARAN AT PRESENT WORKING AS KARYADARSHAK IN THE OFFICE OF THE EXECUTIVE ENGINEER TRIVENI NAHAR NIRMAN PRAMANDAL, NARKATIYAGANJ, WEST CHAMPARAN. Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY BIHAR, PATNA. 2. THE SECRETARY, WATER RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA. 3. THE JOINT SECRETARY, WATER RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA. 4. THE CHIEF ENGINEER, WATER RESOURCES DEPARTMENT, BALMIKINAGAR, WEST CHAMPARAN. 5. THE EXECUTIVE ENGINEER, TRIVENI NAHAR NIRMAN PRAMANDAL, NARKATIYAGANJ, WEST CHAMPARAN. 6. THE SUPERINTENDING ENGINEER, TIRKHUT NAHAR ANCHAL, RAXAUL, EAST CHAMPARAN. 7. THE ACCOUNT CLERK, TRIVENI NAHAR NIRMAN PRAMANDAL, NARKATIYAGANJ, WEST CHAMPARAN. ----------- 4 08/07/2010 19/12/2003 is the order by which certain recovery has been ordered to be made from the salary of the petitioner when order of first time bound promotion given to him was cancelled by the Chief Engineer. The impugned order is annexure-26 and the order of cancellation passed by the Chief Engineer is annexure-25 to this application. Some aspect of the matter requires to be recorded. Petitioner entered into service in a work charged - 2 - establishment as Canal mate by virtue of an order issued by the Executive Engineer, Gandak Canal Division No. II vide order dated 9.3.1973. He joined on 12.3.1973. He was promoted to the post of Gauge reader on 1.10.1981 by virtue of a letter issued by the same Executive Engineer, Gandak Canal Division No. II. From Gauge reader petitioner moved to the post of Work Sarkar with effect from 1.10.1986. The Executive Engineer even extended the benefit of time bound promotion with effect from 2.10.1991 in the pay scale of Rs.1200-1800. When the service record of the petitioner with other employees reached the office of the higher authorities, many infirmities came to be noticed which is yet another story which shall be dealt with in later part of the order. Based on the observation made by certain authority in the department, a show cause notice was issued to the petitioner on many counts which is dated 2.7.2003 and is annexure-17 to the writ application. Since no action has been taken with regard to other allegations, we are not concerned about the same. Petitioner as of now is aggrieved by the order of cancellation of time bound promotion and the corresponding recovery - 3 - order as contained in Annexures 25 and 26. First submission of the learned counsel is that all the benefits whether promotion, appointment or time bound promotion was given by the respondents after due deliberations and the petitioner had no role to play in begetting such benefits. After the benefit is conferred it cannot be taken away and recovery made for payments received by the petitioner. There are orders at appropriate level by virtue of which the petitioner was initially appointed as canal mate and order of confirmation, thereafter promotion to the post of Gauge reader as well as Work Sarkar. Stand of the State is that the petitioner has been given undue advantage at the level of the Executive Engineer which would be evident from the facts itself. A work charged employee is not entitled for confirmation before expiry of five years but it was done in the case of the petitioner. There are no avenues of promotion for work charged employees unless they are taken on the permanent establishment but even on this count for un-explained reason the Executive Engineer accommodated the petitioner on the post of Gauge reader which is a promotion is not denied or disputed. Within - 4 - couple of years petitioner also came to be appointed with a pay scale of that of Work Sarkar. Orders in quick succession and the benefits conferred thereunder are obviously indicators of what has been alleged. Other aspects having been raked up by the respondents, therefore, it is not required to be adjudicated. But the question is whether the order of cancellation of time bound promotion given to the petitioner could be taken away and recovery made. As per circular of the State government, State government employees without avenues of promotion are entitled to be given time bound promotion after ten years of service. Second time bound promotion will accrue after 25 years of service on the same post. In the case of the petitioner this benefit has accrued even before completion of the period of ten years and, in fact, it is evident that the Executive Engineer conferred the benefit upon the petitioner within five years of his working on the post of Work Sarkar. To the submission of the learned counsel representing the petitioner that the benefit had been given to him by the respondents and the petitioner had no role to play and in view of certain settled principle that in absence of any - 5 - fraud or mischief having been played by him, order of recovery cannot be effected has no application to the present case because the State is not bound by the decisions of certain subordinates which have been taken in breach of the rules. If the petitioner was conferred the benefit of time bound promotion even before completion of ten years and the above fact was discovered during the course of verification of his service book by the higher authorities, then it cannot be said that the decision taken at the lowest level will bind the highest, even if this decision is patently in breach of the circular, policy or rules of the State. Obviously, for un-explained reasons the petitioner has been allowed to walk through green channel with no question asked on the benefit being conferred at an appropriate level. Decision contained in Annexure-26 is the consequence of allowing benefit contrary to the rules and the respondents have done no wrong in this regard. The principle urged by the petitioner against the recovery cannot be applied to the given facts of the present case. This writ application has no merit. It is dismissed accordingly. Since the recovery is now permitted by the - 6 - Court, the respondents will surely keep in mind that the same should be recovered in such a manner that it does not cause excessive hardship to the petitioner since he is a Class IV employee. AMIN (Ajay Kumar Tripathi, J.)