NAND KUMAR JHA v. THE STATE OF BIHAR & Ors

1990 petitioner was given benefit of first time bound promotion to the post of Supervisor Grade II with effect from 27.7.1983. The order is annexure-9 to the writ application. Needless to say that petitioner was given a pay scale in consonance with the first time bound promotion on the post of Supervisor Grade II vide Annexure-

10. Finally the petitioner superannuated on 31. 5.2004 with a pay- scale of Rs.1500 – 2750/- with corresponding replacement scale of Rs.5000 – 8000.

9. Petitioner submitted his pension papers before the - 4 - Executive Engineer, respondent no.6 for its final settlement and payment. The matter was examined by the office of respondent no.6. They were of the considered opinion that employees of the work charge establishment on their regularization were entitled to first time bound promotion and regular promotion was not admissible to them. It was in this background that guidelines were sought from the higher authorities.

10. The Under Secretary, Water Resources Department, Government of Bihar, vide letter dated 21.9.2004 informed respondent No.4 Chief Engineer that the Finance Department after examining the claim of the petitioner was of the firm opinion that the promotion given to the petitioner on the post of Supervisor Grade II was against the rule and further petitioner had been given benefit of promotion to the post of Work Sarkar on 6.1.1970 and was made permanent on regularization with effect from 1.4.1977. So at best he could be given first time bound promotion on 27.3.1987. The case of 2nd time bound promotion can also be considered notionally since he completed 25 years of service in work charge establishment on

6.1.1995. It was on the basis of such a decision communicated that respondent no.6 issued order dated 9.8.2004 which is annexure-1 to the writ application and is under challenge along with annexure-2.

11. Contention of the learned counsel for the petitioner is that petitioner has been reduced to a lower post of Work Sarkar in violation of principles of natural justice. He even made grievance by way of an affidavit before the concerned authorities but same did - 5 - not have any effect. Respondents have gone ahead and fixed his provisional pension and gratuity on the pay scale of Work Sarkar and he is let with no option but to move this High Court.

12. The stand of the respondents in the counter affidavit filed on their behalf is that there is no wrong doing on behalf of the respondents. When the service book along with recommendation for authorization of pension was forwarded to the Headquarters it came to light of the official respondents that certain benefit had been given to the petitioner to which he was not entitled to. Even on a plain perusal, based on the averments of the petitioner, petitioner had been given the benefit of promotion on the post of Supervisor Grade II on

30.9.1982 and then shifted back twice over to 27.7.1973 i.e. even before he was regularized on the post of Work Sarkar with effect from 1.4.1977. Under what circumstances such orders were issued at the local level is not fully explained. They have also brought the case of one Udit Narayan Mallik who too had been given similar promotion illegally even though he had joined the post of skilled khalasi and his pension has been fixed without the benefit of promotional post. It is also urged on behalf of the respondents that the benefit of promotion in service is based on the rules and circulars and if for the work charge employee they are not entitled to substantive promotion twice over and merely because at the local level some kind of order came to be passed in favour of the petitioner contrary to requirements in this regard, respondent State is not bound to fix the pension on the post on which the petitioner retired. In fact - 6 - it is seriously urged that the benefit of the kind claimed is not available for the work charge establishment as would be evident from the decision of Full Bench of this Court rendered in the case of Durganand Jha & ors Vs. The State of Bihar & ors, 2007 (4) PLJR 259.

13. Learned counsel representing the petitioner strenuously argued that the benefit once granted cannot be taken away after the retirement of the petitioner and there was no bar to the petitioner having been given the benefit of promotion. To a pointed question put to him as to how he has been given the benefit of the post of Supervisor Grade II from a particular date and the same came to be shifted twice over to a date even before the petitioner was regularized or confirmed on the post of Work Sarkar, he has no cogent or clear explanation to offer.

14. All has not been well. It seems the benefits have fallen in the lap of the petitioner for unexplained reasons. If it is so, this Court will have no occasion to upturn the decision of respondents if on examination of the service book of the petitioner, for settlement of pension, they come to considered opinion that the benefit not entitled to under law had accrued to the petitioner.

15. Since it a question of only fixation of pension, on the correct post and pay and not a case of recovery due to wrong promotion, the Court is not inclined to interfere with the impugned orders. The pension of the petitioner would be fixed on the basis of his entitlement and in consonance with the decision taken by the - 7 - respondents in terms of annexure-1 and annexure-2.

16. The writ application has no merit. It is dismissed. (Ajay Kumar Tripathi, J)