Shri Ishwar Dayal Rai v. The State of Bihar

For the petitioners : - Mr. Rabindra Natha Verma, Advocate. For the respondents : - Mr. Kumar Ravish, A.C. to G.P. I. --------- 08/

02.07.2009 Heard counsel for the petitioners and the counsel for the State. In C.W.J.C. No. 3061 of 1998 the prayer of the petitioners reads as follows :- “1(i) Issuance writ/writs, order/orders, direction/directions for quashing the orders issued by the Director, Soil Conservation, Govt. of Bihar, Patna (Respondent no.3) issued in Memo No. 133 dated 22.1.1998 (Annexure-14) and Memo no. 134 dated 22.1.1998 (Annexure-15) under which the Respondent no. 3 has passed orders cancelling 12% Pay Fixation benefit given to the petitioners on the post of Junior Engineers and also to recover the pecuniary benefits allowed appointment as Junior Engineers and 2nd time bound promotion. (ii) And, alternatively, for directing the respondents to give Ist. time bound promotion to the petitioners on completion of ten years of service on the post of Junior Engineers.” the petitioners consequential In C.W.J.C. No. 9730 of 1998 the petitioners have made prayer to the following effect :- appropriate Issuance writ/writs, order/orders, direction/directions for “1(i) - 3 - (Annexure-12) under which quashing the order issued by Director, Soil Conservation, Govt. of, Patna (Respondent no.3) issued vide Memo No. 133 dated 22.1.1998 (Annexure-11) and Memo No. 134 dated 22.1.1998 respondent no. 3 has passed orders cancelling 12% pay fixation benefit given to the petitioners on the post of Junior Engineers and also to recover the pecuniary benefit allowed to the petitioners consequential to their promotion as Junior Engineers and 2nd time bound promotion. (ii) For directing the respondents to give time bound promotion to the petitioners on completion of 10 years of service on the post of Junior Engineers. (iii) To direct the respondents to pay the consequential retrial benefits including pension. (iv) To direct the respondents to revise and pay the consequential retrial benefits.” Counsel for the petitioners in support of the prayer made by the petitioners would submit that once the department had issued an order of promotion the petitioners did not only become entitled for payment of fixation of 12 ½% as per the Bihar Service Code, but also for the benefit of time bound promotion treating the earlier post to be ladder post of the promotional post and in that view of the matter whatever was given to the petitioners in capacity of Senior Surveyor by virtue of promotion on the post of Overseer (Junior Engineer) in the year 1974 cannot be taken away at the fag end of their service career and/or after their retirement. This is, how the - 4 - learned counsel for the petitioners have viewed the whole scenario as with regard to the entitlement of the petitioners being prayed in these writ applications. Counsel for the State, on the other hand, has submitted that as a matter of fact in this very department (Directorate of Soil Conservation) the issue has been settled that the post of Surveyor is not a ladder/feeder post from which promotion can be given on the post of Overseer (Junior Engineer). In this context he refers to a judgment of this Court in the case of Lalan Prasad Sinha and others Vs. The State of Bihar and others reported in 1994(2) PLJR 509. Counsel for the State has further submitted that once it has been held by this Court that no promotion can be given to a Surveyor to a post of Overseer (Junior Engineer) or any benefit given by treating them to be promoted has to be held to be illegal and such loss to government exchequer can definitely be recovered from a person who is not entitled to receive the same. In this context he also refers to a judgment of the Full Bench of this Court in the case of Ram Binod Singh & Others Vs. The Bihar State Electricity Board and Others reported in 2007(3) PLJR 398 with an added emphasis that this Court has permitted - 5 - recovery even from the retired employees. Finally, counsel for the State has also submitted that merely because in past some wrong decisions were taken and some wrong payments were made to them, that cannot be made a ground for repeating such mistakes and at least this Court cannot direct the authorities to act contrary to the law. Reference in this case has been made by the learned counsel for the State on a judgment of the Apex Court in the case of Indian Council of Agricultural Research and another Vs. T.K. Suryanarayan and others reported in (1997) 6 Supreme Court Cases 766 and also in the case of State of Bihar Vs. Upendra Narain Singh and other reported in 2009 (5) S.C.C. 65. After considering the aforementioned submissions this Court is in agreement with the submissions made by the learned counsel for the State. It is not dispute that the petitioners were initially appointed on a substantive post of Surveyor/ Senior Surveyor. True it is that they had higher qualification of being Diploma holders in Engineering, but then their appointment was made only against the post of Surveyor which is Class III post and admittedly not a feeder post of Overseer (Junior Engineer). It has to be - 6 - consideration that under the service rules of State government the post of Overseer/Junior Engineer was to be filled up by way of direct recruitment or by way of internal appointment in the ratio made 95% and 5% as per the scheme of Bihar Subordinate Engineering Services Rules. Therefore, there was no concept of promotion at all from the post of Surveyor to the post of Overseer (Junior Engineer). The orders issued in favour of the petitioners have to be thus taken to be an appointment and once they are taken to be so, the benefit of pay fixation of 12 ½% payable only in cases of promotion, was/is not admissible to them. The reply which was given by the petitioners to the authorities and also repeated before this Court that they had never asked for being promoted on the post of Overseer has to be accepted with a pinch of salt inasmuch as the learned counsel for the petitioners is not in a position to refute this position that the pay scale of Surveyor was much less than the scale of Overseer, now redesignated as Junior Engineer. If a person therefore comes on a higher post by projecting that he has the qualification of being Diploma holder in Engineering he cannot be heard to say that his acceptance of higher post was under compulsion. Therefore, the plea of - 7 - promotion given to them on the post of Overseer against their wishes is no longer available to them as the issue has already been decided by this Court in the case of Lalan Prasad Sinha (supra). Once this question is undisputed petitioners’ initial appointment was on the post of Surveyor and their further appointment was against the post of Overseer (Junior Engineer), the second limb of submission of learned counsel for the petitioners for the time bound promotion by counting the period of the post of Surveyor also must fail. It has to be noted that the policy of time bound promotion was made operate w.e.f. 1.4.1981 in view of the recommendation of the 4th Pay Revision Committee, but then the benefit of the past services rendered prior to 1.4.1981 was to be computed only against the post on which a period of ten or twenty five years was completed. Therefore, when 25 years of period was computed in the case of few of the petitioners and they were granted time bound promotion on the basis of total length of services by including the period of past service rendered on the post of Surveyor with that of Overseer that by itself was absolutely illegal and in fact impermissible in terms of the - 8 - resolution of the Finance Department dated 30.12.1989, wherein it was envisaged that the time bound promotion would be only a mode for removing stagnation by way of upgrading the pay scale on the same post if no higher pay scale had been given in the intervening period. Admittedly the petitioners in the year 1974 on account appointment or promotion on the post of Overseer were given higher pay scale and therefore the services rendered on the post of Surveyor could not have been even computed for the purpose of 1st or 2nd time bound promotion. It is in fact only from the year 1974 that the services of the petitioners could be computed for the purposes of grant of time bound promotion. The petitioners however having got appointed on a higher post with higher pay scale in 1974 as Overseer since redesignated as Junior Engineer and not completed ten years as on 1.4.1981 cannot get first time bound promotion w.e.f. 1.4.1981and if a period of 25 years has to be computed from 1974 for the second time bound promotion, most of the petitioners would not be entitled for the same on account of their superannuation before 1999. Counsel for the petitioners, however, seems to be correct that even if the impugned orders passed by the - 9 - authorities are held to be justified, the petitioners will still be entitled for consideration of their time bound promotion on the post of Junior Engineer by treating their length of services from the date of their being brought in the cadre of Overseer (Junior Engineer) i.e. 1974. This Court however would not like to make any final pronouncement as this aspect of the matter has not been gone into in the impugned orders. This Court can only observe that if the petitioners represent their individual cases for grant of time bound promotion on the basis of services rendered by them on the post of Overseer since 1974, the same will be considered in accordance with law and in the event one or more petitioners are found entitled for such time bound promotion, the monetary benefit thereof will be extended to them after making recovery of the excess amount already paid/drawn by the petitioners. This Court however would make it clear that all the petitioners shall be liable to refund or subjected to recovery of any excess amount paid to them beyond their entitlement in terms of the impugned order. To that extent the learned counsel for the State has rightly submitted that the issue is one of entitlement and the petitioners cannot justify such - 10 - entitlement, the recovery of excess amount can definitely be made from their salary/ retirement benefit, even after their retirement, as was held in the Full Bench judgment of this Court in the case of Ram Binod Singh (supra). Counsel for the State, in fact, has also rightly pointed out that merely because similar benefit was given to some other persons can not be made a ground to perpetuate the illegality in the case of the petitioners and he is also quite justified in relying on the following passage the case of Indian Council of Agricultural Research (supra) answers the same. “ We are, however, unable to accept the submission made by the learned counsel appearing in both these SLPs. Even if in some cases, erroneous promotions had been given contrary said Service Rules and consequently such employees have been allowed to enjoy the fruits of improper promotion, an employee cannot base his claim for promotion contrary to the statutory service rules in law courts. Incorrect promotion either erroneously by the Department by misreading the - 11 - said Service Rules or such promotion given pursuant to judicial orders contrary to Service Rules cannot be a ground to claim erroneous promotion by perpetrating infringement of statutory service rules. In a court of law, employees cannot be permitted to contend that the Service Rules made effective on 1.10.1975 should not be adhered to because in some cases erroneous promotions had been given. The statutory rules must be applied strictly in terms of the interpretation of rules as indicated in the decision of a three-Judge Bench of this Court in Khetra Mohan case.” That being so, this Court would find no merit even in the last submission of the learned counsel for the petitioners and consequently the writ petitions being devoid of any merit, are fit to be dismissed. In view of the fact that this Court by interim orders in both the writ applications had stayed the recovery of the excess amount paid to the petitioners and the petitioners have been directed to file their representation for claiming the - 12 - benefit of time bound promotion on the post of Overseer, such interim orders and protection given to them shall be continued for a period of six months, in which period the authorities must decide the claim of the petitioners as also make adjustment of amount of recovery in terms of impugned order. In the event no such representation is filed by any of the petitioners, they would be liable to recovery in terms of the impugned order, immediately on expiry of the period of six months from today. Subject the aforesaid observations and directions, both the writ petitions are accordingly dismissed. DKS/ (Mihir Kumar Jha, J.)