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1996 DIGILAW 130 (PAT)

Yadunath Verma v. State Of Bihar

1996-02-27

RADHA MOHAN PRASAD

body1996
Judgment 1. The petitioner, in this writ application, has prayed for quashing of the order, contained in Memo No.6875 dated 21.11.1995 (Annexure 1), issued by the Director, Animal husbandry, Government of Bihar (respondent no.3), by which his claims for promotion in the Senior Selection Grade and super Time Scale with effect from 1.4.1981 and 1.5.1989 respectively have been rejected and the order, contained in Memo no.7222 dated 7.12.1995 (Annexure 2 ). whereby respondent no.3 has cancelled the orders dated 30.5.1985 and 9.12.1991 giving promotion to the petitioner in the senior Selection Grade with effect from 1.4.1981 and in the Super Time Scale with effect from 1.5.1989 and, further, that he would be entitled for first time bound promotion with effect from 9.8.1982 and second time bound promotion with effect from 9.8.1987 and consequently, the alleged excess payment drawn by virtue of the earlier promotions has been sought to be adjusted from his pensionary benefits. 2. The short relevant facts of the case are that the petitioner was appointed as lower Division Clerk (L. D. C.) in the Animal husbandry Central Range, Patna on 2.9.1956 and was promoted as Upper division Clerk (U. D. C.) (Accountant) in the same office in March, 1962. On 20.7.1971 the seniority list of U. D. C. and above was published in which the petitioner was placed at serial no.56. In the Year 1980 the cadre of L. D. C. and U. D. C. were merged and was called as "assistants". The petitioner passed the Accounts Examination on 8.7.1982 as per the provision for promotion in upper Divison provided in rule 157 of the Bihar Boards Miscellaneous Rules, 1958 (in short the Rules ). In April, 1985 the rules were amended to the effect that nobody shall be entitled for Junior/senior selection Grade unless finally passed the accounts Examination. 3. In May, 1985 (Annexure 7) the petitioner was given Senior Selection Grade with effect from 1.4.1981. Later, he was reverted to a lower post of Junior Selection grade, the validity of which was challenged in this Court in C. W. J. C. No.3368 of 1987. By virtue of the interim order for maintenance of status quo, the petitioner continued in the Senior Selection Grade and later on 1.5.1989 was promoted in Super time Scale of Rs.1500- 2750/-. By virtue of the interim order for maintenance of status quo, the petitioner continued in the Senior Selection Grade and later on 1.5.1989 was promoted in Super time Scale of Rs.1500- 2750/-. During the pendency of the said writ petition, the director, Animal Husbandry, Bihar, passed a general order cancelling all promotions, the validity of which was also challenged in the said writ petition. 4. This Court by judgment and order dated 27th July, 1992 quashed the aforementioned order of reversion as well as the order cancelling promotion with the liberty to the respondents to pass an appropriate order after affording an opportunity of being heard to the petitioner. The respondents after giving notice to the petitioner again passed an order on 5.1.1994 (Annexure 21)cancelling the gradation list of 20th July, 1971 and on 23.2.1994 (Annexure 22) the aforementioned promotions of the petitioner to the Senior Selection Grade and super Time Scale and further directed for realisation of the excess amount. The petitioner again filed C. W. J. C. No.2917 of 1994 for quashing of the aforementioned order. The operation of the order dated 23.2.1994 (Annexure 22) was stayed. 5. As in passing of the order dated 23.2.1994, the respondents took a new plea that the petitioner had not passed the departmental examination under rule 157 (A) (as amended) of the Rules he could not have been given promotion to the Senior selection Grade and Super Time Scale, with which the petitioner was never confronted in the show cause notice. This Court by order dated 1.2.1995 quashed the same and again gave liberty to pass fresh order after giving notice arid in accordance with law. In the meantime, the petitioner superannuated from service on 31.3.1994 while drawing Super Time Scale of Rs.1500-2750/-. Thereafter the impugned orders were passed. 6. It is contended that the petitioner has only been paid 90% of the pension provisionally and gratuity and unavailed leave salary have not been paid to him, besides remaining 10% of his pension. 7. A counter affidavit has been filed on behalf of the respondents in which it is stated that the petitioners name stands at serial no.44 in the gradation list and total number of posts in Junior Selection Grade, senior Selection Grade and Super Time grade are 23, 14 and 3 respectively. 7. A counter affidavit has been filed on behalf of the respondents in which it is stated that the petitioners name stands at serial no.44 in the gradation list and total number of posts in Junior Selection Grade, senior Selection Grade and Super Time grade are 23, 14 and 3 respectively. As the petitioners name does not come in the seniority, so his claim for junior, senior and super time scale promotion does not arise. Thus, according to them, the petitioner is entitled for first time bound and second time bound promotion from 9.8.1982 and 9.8.1987 respectively, which have been fixed on the basis of passing Accounts Examination as per the provision contained in rule 157 of the Rules. It is stated that the petitioner is junior to 43 persons in his cadre, so under natural Justice the petitioner cannot be treated as Senior selection Grade employee from 1.4.1981 and Super Time Scale from 1.5.1989. It is also stated that the list of 1971 was not according to the circular and under Bihar Service Code rule 12 where every cadre has its own hierarchy and that the said list was a confusing one as it was prepared comprising of different cadres and thus, It has been cancelled and a new gradation list of central Range, Patna Cadre was published on 11.6.1987 according to rule 157 of the rules. It is further stated in paragraph 21 of the counter affidavit that the petitioner could not pass the Accounts Examination earlier and thus, in no case he can overthrow the employees who passed earlier than him. 8. A supplementary affidavit and a rejoinder to the said counter affidavit have been filed on behalf of the petitioner. 9. In the supplementary affidavit filed on behalf of the petitioner it is stated that the persons, who have been promoted in the super time scale, were promoted to upper Division Clerk in between 12.8.1966 and 23.6.1975 i. e. , much after the petitioner was promoted to the Upper Division with effect from 31.3.1962. It is also stated that s/shri Shashi Bhushan Prasad and raghunath Lal though passed the Accounts examination at a much later stage, yet they were given Super Time Scale. 10. It is also stated that s/shri Shashi Bhushan Prasad and raghunath Lal though passed the Accounts examination at a much later stage, yet they were given Super Time Scale. 10. In substance, the stand of the respondents in support of the impugned orders dated 21.11.1995 (Annexure 1) and 7.12.1995 (Annexure 2) cancelling the promotions given to the petitioner in the senior Selection Grade in April, 1981 and super Time Scale with effect from 1.5.1989 and that too after his superannuation on 31.3.94 is that he passed the Accounts Examination as per rule 157 of the Rules much later. 11. Mr. Mukherjee, learned Sr. Counsel appearing for the petitioner submitted that such objection is not permissible in view of the decision of the Apex Court in the case of Narender Chadha and ors. V/s. Union of india and ors. (AIR 1986 S. C.638) in which the Court held that the persons promoted to posts in violation of rules but allowed to function in higher posts for 15 to 20 years with due deliberation it would be certainly unjust to hold that they have no sort of claim to such posts and could be reverted unceremoniously or treated as persons not belonging to the service at all, particularly where the Government is endowed with the power to relax the Rules to avoid unjust results. 12. A reference in this connection was also made to a decision of the Supreme court in the case of T. Shantharam V/s. State of Karnataka and ors. reported in (1995) 2 SCC 538 , in which the Supreme court though found force in the contention that the rules prescribed that on the deputation the post should be the post equivalent to one held in the parent department and the appellant of the said case could not be transferred and deputed in the Food Wing on higher post than the post held by him in the parent department, but the meat of the matter is that the appellant uninterruptedly worked in the Food Department till the date of the order by the Tribunal. In such circumstances, the Apex Court held that though initially he might have mistakenly been deputed to hold higher post in the food and Civil Supplies Department, since the appellant had obviously discharged his duties and higher responsibilities to the satisfaction of all concerned, at that distance of time, it is highly unjust to send him back to hold the post in the parent department which he was entitled to hold and the tribunal is not right to interfere with action of the department in its absorption of the appellant as per its own earlier order. 13. On the other hand, learned government Pleader No. VII submitted that it is true that the petitioner was senior to many in the Upper Division but he could not hold himself in retaining his candidature amongst others in the list as he could not pass the Accounts Examination before 22.7.1976 and thus, in no case he can overthrow the employee who passed the said examination earlier than him. Further, it was submitted by him that rule 157 essentially requires passing of the Accounts Examination before promotion to Junior Selection grade, Senior Selection Grade and Super time Scale and as the petitioner passed the said examination only on 8.7.1982 he cannot claim promotion to either of the said grades before the date of his passing the required examination. 14. I do not find any substance in the last submission of the learned Government, pleader No. Vll. Rule 157 of the Rules prior to amendment in April, 1985 only required passing of the Accounts Examination before one could be considered for promotion to upper Division. Under the said rule there was no such requirement that one must pass Accounts Examination before his promotion to either of the two selection grades or to the Super Time Grade. This was only intoduced in the said rule in April, 1985. Moreover, L. D. C. and U. D. C. merged in the year 1980, whereafter it was commonly known as "assistants" and as already stated above, the petitioner passed the said examination on 8.7.1982, only whereafter he was given promotion in the Senior Selection grade with effect from 1.4.1981 along with other persons. Thus, obviously his promotion to the Senior Selection Grade was made after passing of the Accounts Examination though restrospectively from a date when there was no such requirement. Thus, obviously his promotion to the Senior Selection Grade was made after passing of the Accounts Examination though restrospectively from a date when there was no such requirement. Thus, in my opinion, there was no infirmity in his promotion in the Senior Selection grade and the Super Time Scale inasmuch as one could be promoted in the Senior selection Grade even without passing of the accounts Examination prior to the amendment of the rules was made in April, 1985 and if an order for promotion after the amendment of the Rules has been passed only after passing of the Accounts Examination, in my opinion, that will not vitiate the retrospective promotion on the ground that he did not fulfil the requirement in the year 1981, particularly when it iand hot the case of the respondents that 1985 Rule was introduced retrospectively. However, even otherwise the impugned orders cannot be sustained in view of the decision of the apex Court in the case of Narender Chadha and others v. Union of India and others (supra), after a lapse of almost 15 years and that too when the petitioner has already functioned in that capacity and also superannuated from the service. 15. In that view of the matter, the reduction in rank of the petitioner and the consequential order of adjustment of alleged excess amount drawn by him by virtue of his promotion made as far back as in the years 1985 and 1989 after his retirement cannot be held to be permissible even an the principle that if the work has been taken from a person in a particular capacity, then he cannot be denied the financial benefits arising therefrom. 16. Accordingly, the impugned orders, contained in Annexures 1 and 2, cannot be sustained and they are quashed. 17. In the result, the writ application is allowed and the respondents are directed to release the full pension and gratuity of the petitioner within one month of the receipt/production of a copy of this ordet no costs.