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2002 DIGILAW 1005 (PAT)

Bhola Yadav v. State Of Bihar

2002-09-13

S.K.KATRIAR

body2002
Judgment 1. Heard Mr. Ibrahim Kabir for the petitioner, Mr. A. B. Sinha, learned SC X for respondent nos. 1 to 4, and Mr. Anil Kumar Jha, learned Addl. Standing Counsel for respondent no. 5 (the Accountant General, Bihar, Patna). This writ petition is directed against the order dated 4.11.99 (Annexure-1), issued by the office of the Accountant General (A & E) II, Bihar, Patna, to the Superintendent of Police, Darbhanga, whereby he has come to the conclusion that the petitioner was paid salary in excess while in service because he had not assed Hindi Noting & Drafting Examination. The latter has, therefore, been called upon to accordingly recalculate the salary payable to the petitioner while in service which may have an adverse effect on the post-retirement benefits also. 2. According to the writ petition, the petitioner had initially joined the service of the Bihar Government as a Constable in the year 1961 which is a class IV post. He passed the SLC examination in 1970 and was promoted to the rank of Havildar in 1976. He was thereafter promoted to the ranK of Civil Jamadar in 1992 which is admittedly a class III post. The petitioner was accordingly granted increments in the higher pay-scale. The petitioner superannuated from the services of the Bihar Government w.e.f. 1.7.99 while functioning as a Civil Jamadar under the Superintendent of Police, Darbhanga. It was thereafter detected in the office of the Accountant General Bihar, Patna, that the petitioner had never passed the Hindi Noting & Drafting examination after he was promoted to a class III post and, therefore, he had wrongly been given increments. In that view of the matter, the impugned order was issued whereby he reached the conclusion that not having passed the Hindi Noting & Drafting examination within a period of one year from his promotion to the post of Civil Jamadar, he should not have been granted increment(s). Therefore, the S.P., Darbhanga has been called upon to accordingly recalculate the salary admissible to the petitioner while in service for purpose of recovery. 3. Relying on rule 23 of the Bihar Police Manual, learned counsel for the petitioner submits that it is no part of the duty of a Civil Jamadar to pass Hindi Noting & Drafting examination. Therefore, the S.P., Darbhanga has been called upon to accordingly recalculate the salary admissible to the petitioner while in service for purpose of recovery. 3. Relying on rule 23 of the Bihar Police Manual, learned counsel for the petitioner submits that it is no part of the duty of a Civil Jamadar to pass Hindi Noting & Drafting examination. He further submits that his initial appointment was to the post of illiterate constable and, therefore, he was not required to pass the Hindi Noting and Drafting examination even after having been promoted to a class III post. Learned counsel for the respondents have taken me through their counter affidavit and various circulars in order to support the impugned order and persuade this Court that the petitioner was required to pass the Hindi Noting & Drafting examination after his promotion to a class III post. 4. Before I examine the rival contentions, I must state the two-fold difficulty I am faced with while disposing of this writ petition. There seems to be some discrepancy between the pleadings of the parties with respect to the date of promotion of the petitioner as Jamadar and the next higher post of Civil Jamadar. There is also no material on record to conclude whether or not Jamadar is a class III post. However, the same need not detain us in view of the nature of the order which I am going to pass. Learned standing counsel no. X has taken me through paragraph 5 of the counter affidavit which is to the effect that in terms of Cabinet (Raj Bhasha) Secretariat Resolution No. 361-Ra, dated 15.6.68 (Annexure A) every government servant except class IV employee, who has to read and write in course of his duty, is required to pass "Hindi Noting & Drafting Examination" failing which he will not be entitled to his admissible increment or confirmation, nor will be eligible to cross the efficiency bar. It is further stated in paragraph 5(ii) of the counter affidavit that the petitioner was promoted to the post of Civil Jamadar in 1992, and he was required to read complaints and write reports in course of discharge of his duty. It is thus manifest that the petitioner was required to pass the Hindi noting and drafting examination after he was promoted to class III post. It is thus manifest that the petitioner was required to pass the Hindi noting and drafting examination after he was promoted to class III post. Reference may be made to rule-23 of the Bihar Police Manual 1978 (Vol. II) in this connection : "23. Duties of Police-Officers.it shall be the duty, of every police-officer promptly to obey and execute all orders and warrants lawfully issued to him by any competent authority; to collect and communicate intelligence affecting the public peace, to prevent the commission of offences and public nuisances; to detect and bring offenders to justice and to apprehend all persons whom he is legally authorised to apprehand, and for whose apprehension sufficient ground exists; and it shall be lawful for every police-officer, for any of the purposes mentioned in this section, without a warrant, to enter and inspect any drink-ing-shop, gaming-house or other place or resort of loose and disorderly characters." The petitioner was not able to pass the said examination, and obviously the grant of increment was bad in law. The State Government is, therefore, entitled to recover the same. I am not impressed by the petitioners contention that his appointment was as an illiterate constable and, therefore, he was not required to pass the Hindi noting and drafting examination after his promotion to a class III post. The established procedure in the State Government is that a certain number of class III posts in every cadre is reserved for class IV employees who have to satisfy certain conditions, namely, they must have minimum educational qualification, they must have put in the requisite numbers of years of service on class IV post, and are normally subjected to a test to determine their ability to be promoted to class III post. Therefore, all illiterate constables are not entitled to be considered for promotion to class III post against the quota reserved for them. The promotee must fulfill all the conditions/requirements before promotion and after promotion. In fact, the requirement to pass the examination is a post-promotional and cannot be related back to the initial appointment to a class III post. The contention is, therefore, stated only to be rejected. The impugned order cannot be faulted. 5 In the result, the writ petition is dismissed.