VIJAY BIHARI LALL v. THE BIHAR STATE ELECTRICITY BOARD THROUGH CHAIRMAN, VIDYUT BHAWAN, BAILEY ROAD, PATNA

.... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Rajeev Kumar Verma, Sr.Advocate Mr. Sanjiv Sharan For the Respondent/s : Mr. Vinay Kirti Singh, Addl.S.C., BSPH Company ltd. ====================================================== CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL ORDER 8 26-07-2013 Heard learned counsel for the petitioner and the Electricity Board (now known as South Bihar Power Distribution Company). The petitioner retired on 28.02.2005 from the post of Accounts Assistant, Electric Supply Division, Bhabua, Kaimur. He prays for quashing the order dated 15.01.2005 passed by the General Manager-cum-Chief Engineer, Magadh Electric Supply Area, Gaya by which two orders of promotion dated 06.02.1985 and 30.03.1990 granting selection grade and senior selection grade Patna High Court CWJC No.6202 of 2006 (8) dt.26-07-2013 in rank of Junior Accounts Clerk, were cancelled. The petitioner further prays for payment of Rs.68,000/- and odd, which was deducted as extra salary paid subsequent to grant of selection grade as well as senior selection grade. The petitioner was appointed as Bill clerk vide order dated 15.06.1967 against leave vacancy. He gave his joining in the year 1968. His service was terminated on 10.03.1969 by the order of Electrical Superintending Engineer, Patna Electrical Supply Circle, Patna. He filed representation against order of termination. The representation was considered sympathetically and the Electrical Superintending Engineer, Patna Electrical Circle vide Memo no.2257 dated 23.06.1973 reinstated him in service from the date he reports to duty. The petitioner was granted selection grade vide Memo no.370 dated 06.02.1985 w.e.f. 15.06.1981 and senior selection grade by order dated 30.01.1990 w.e.f. 01.08.1988 after completion of 14 years of service. However, the period

10.03.1969 to 24.06.1973 during which petitioner was not in service was calculated for grant of notional seniority. The General Manager-cum-Chief Engineer vide impugned order dated

05.01.2005 cancelled the upgradation of scale in selection grade and senior selection grade. The alleged excess payment to the tune of Rs.68,448/- consequent to upgradation was deducted against the Patna High Court CWJC No.6202 of 2006 (8) dt.26-07-2013 amount of gratuity. The petitioner states that the impugned orders withdrawing the selection grade as well as senior selection grade were passed in January 2005 when he was on the verge of retirement in the next month e.g. February 2005. Learned counsel submits that withdrawal of promotions which are mere time scale promotions after 20 years, is wholly unreasonable. In support of his submissions, learned counsel has relied upon decision of this Court in case of Vijay Kumar Vs. The State of Bihar & Ors., reported in 2013(1) PLJR 862 as well as decision reported in 2013 (1) PLJR 612 and in case of Chandi Prasad Uniyal & Ors. Vs. The State of Uttarakhand, reported in (2012) 8 SCC 417. He next submits that the promotion in selection grade and senior selection grade were withdrawn by respondents treating his appointment in 1973 as fresh appointment whereas petitioner was reinstated in service by letter dated 23.6.1973 of Superintending Engineer. He next submits that the Board itself has reckoned the period 10.3.1969 to 24.6.1973 for granting notional seniority without pay which would be evident from order dated 8.10.1984 issued by G.M. cum Chief Engineer, Central Bihar Area Electricity Board, Patna. The petitioner submits that Patna High Court CWJC No.6202 of 2006 (8) dt.26-07-2013 he had no role in fixation of the salary and there is no allegation of misrepresentation. Mr. Vinay Kirti Singh, learned counsel appearing for the Board submits that if excess pay has been made on account of miscalculation the same can always be recovered. He further submits that the judgment cited by the petitioner are in respect of cases where the order withdrawing the promotional scale was passed after retirement. Learned counsel for the Board submits that petitioner was terminated in the year 1969 and was reinstated in the year 1973, as such his service would be counted afresh, as reinstatement was not with effect from 1969. Thus for grant of selection grade or super selection grade, the service period ought not to have been calculated from 1969 but from 1973. He next submits that the Board has granted notional seniority from 1969 only for the purpose of fixing seniority and not for upgradation of scale of pay. The issue would be is whether Memo no. 2257 dated

23.6.1973 of the Electrical Superintending Engineer, Patna Electrical Circle, Patna is one of fresh appointment or reinstatement. The order dated 23.6.1973 states that the petitioner is being reinstated in service. The order does not indicate much less explicitly state that it is a case of fresh appointment. On the Patna High Court CWJC No.6202 of 2006 (8) dt.26-07-2013 contrary, the General Manager cum Chief Engineer, Central Bihar Area Electricity Board, and Patna vide order dated

8.10.1984 granted notional seniority without pay with effect from

10.3.1969. Had it been a case of fresh appointment the petitioner could not have been given notional seniority with retrospective date e.g. 10.3.1969 in place of 24.6.1973. The order dated

8.10.1984 has neither been withdrawn nor modified. Thus I find that the order reinstating petitioner lacks all ingredients of fresh appointment. Had it been a case of fresh appointment with effect from 24.6.1973, the respondents would have been right in withdrawing the selection grade as well as senior selection grade promotion allowed to the petitioner. In the result, the writ petition is allowed and the impugned order dated

15.1.2005, passed by the General Manager cum Chief Engineer, Magadh Electric Supply Area, Gaya withdrawing two time scale promotions granted on 6.2.1985 & 30.3.1990 issued in favour of the petitioner is quashed. Shashi. (Samarendra Pratap Singh, J)