Patna High Court - Orders
The State Of Bihar & Ors vs Md.Sanaullah & Anr on 14 December, 2009
Author: Shiva Kirti Singh
Bench: Shiva Kirti Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
LPA No.453 of 2009
1.THE STATE OF BIHAR THROUGH THE SECRETARY,
SCIENCE AND TECHNOLOGY DEPARTMENT,
TECHNOLOGY BHAWAN, PATNA
2.THE DIRECTOR,SCIENCE & TECHNOLOGY DEPARTMENT,
TECHNOLOGY BHAWAN,PATNA
3.THE PRINCIPAL, GOVT.POLYTECHNIC,
GULZARBAGH, PATNA - 800007
4.THE TREASURY OFFICER, PATNA
------ RESPONDENTS/APPELLANTS
Versus
1.MD.SANAULLAH SON OF LATE ABDUL MOKIT,
RESIDENT OF MOHALLA AHSAN COLONY, LODIKATRA,
P.S.KHAJEKALAN,DISTRICT PATNA (BIHAR)
------ PETITIONER-RESPONDENT IST SET
2.THE ACCOUNTANT GENERAL BIHAR,
BIRCHAND PATEL PATH,PATNA-1 ---RESPONDENT
----
For the appellants : Mr.Ramchandra Prasad Bharti,SC XIV
For respondent no.l: Mr.Lakmesh Marvind, Advocate
-----------
07/ 14.12.2009Heard learned counsel for the appellants and learned counsel for respondent no.1.
2. Respondent no.1 had preferred C.W.J.C.No. 7905 of 2006 which has been allowed by the order under appeal. Orders passed during the pendency of writ petition dated 16.5.2007 and 6.8.2007 were quashed with direction to refund the recovered amount within three months with a further direction to the respondents to fix and finalise his monthly pension on the basis of revised salary and last pay drawn treating the 2nd Time Bound Promotion to be valid. Dues of pension under different heads have also to be paid with permissible statutory interest, 2 within the same time.
3. The writ petitioner had already superannuated with effect from 30.9.1997. Initially there was delay in finalizing his pensionary benefits on account of dispute over date of birth but when that dispute was settled, during pendency of the writ petition by order dated 16.5.2007 (annexure-A to the counter affidavit in the writ proceeding) the appellants cancelled the second time bound promotion granted to the writ petitioner and soon thereafter another order dated 6.8.2007 was passed for recovery of all excess amount paid on account of grant of second time bound promotion, from his pensionary benefits.
4. The writ court did not go into the legality of the aforesaid orders passed during the pendency of the writ petition but quashed those orders mainly on the ground of inordinate delay on the part of the concerned authority, when the matter related to an employee who had superannuated far back in the year 1997.
5. Before us, the respondents-
authorities are appellants and they have 2 3 tried to persuade us to hold that on merits the orders canceling second time bound promotion and for recovery of the alleged excess amount paid are valid orders.
6. On behalf of the appellants, reliance was placed upon the circular of Finance Department dated 30.12.1981 to show that the writ petitioner had, in fact, availed of two promotions and therefore, he was not entitled to the second time bound promotion. On the other hand, on behalf of the respondent no.1/writ petitioner reliance was placed upon another circular/letter of Finance Department bearing no. 4245 dated 16.7.1985. Reliance was also placed upon a judgment of this Court in the case of Md.Abdul Qaiyum.Vrs.The State of Bihar and others reported in 2006(2) PLJR 655. In the aforesaid judgment the circular/letter dated 16.7.1985 has been considered and it has been held that this letter provides that in the event promotion was given prior to upgradation/merger of lower pay scale to higher scale, such promotion shall not be counted as promotion for the purpose of 3 4 granting of first time bound promotion. On the basis of said provision in the circular, in our view, it has been correctly submitted on behalf of respondent no.1 that the promotion granted to him in the year 1967 will not stand in the way of grant of time bound promotion to him because after that promotion in 1967, there was a upgradation/merger of the concerned pay scales.
7. Thus on merits also we find that the appellants could not have cancelled the second time bound promotion granted to the writ petitioner nor they could have ordered for recovery.
8. In the result, we find no merit in this appeal. It is accordingly dismissed.
( Shiva Kirti Singh,ACJ.) Tahir/- ( Shyam Kishore Sharma, J. ) 4