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2003 DIGILAW 198 (PAT)

Sidheshwar Prasad v. State Of Bihar

2003-02-20

NARAYAN ROY

body2003
Judgment 1. Heard counsel for the parties. 2. By this writ application, the petitioners have prayed for quashing the order dated 19.8.1998, as contained in annexure 1. whereby and whereunder the earlier sued to the petitioners and similarly situated persons to refund the over paid amount forthwith. 3. Learned counsel appearing on behalf of the petitioners submitted that the petitioners were working as stenographers in the judgeship of Nawadah and while they were working under the aforesaid judgeship, their case was considered for promotion to junior selection grade on temporary pay scale of Rs. 730-1080/- and a notification in this regard was issued vide annexure 2 dated 27.9.1995. 4. Learned counsel appearing on behalf of the petitioners now submits that since the petitioners were eligible candidates for promotion to the post of junior selection grade, their case was considered and necessary direction was issued, and. therefore, the authorities could not have modified the earlier order of promotion and, at the same time, the authority could not have directed for recovery of excess amount paid to the petitioners. Learned counsel alternatively submits that the petitioners are now aggrieved by last part of the order, as contained in annexure 1, whereby and whereunder they have been directed to pay the excess amount paid to them on account of promotion to junior selection grade scale. 5. A counter affidavit has been filed on behalf of the concerned respondent and in the counter affidavit, it is stated that an audit party of the Accountant General, Bihar, inspected Nawadah Civil Courts in the month of August 1998 and pointed out that the petitioners were wrongly given junior selection grade promotion with effect from 3.8.1987, as they had not completed five years of qualifying service on that day as required under paragraph 10 of the Finance Department Resolution No. 10770 dated 30.12.1981. 6. The resolution of the Finance Department afrosaid has been annexed with the counter affidavit, which has been marked as annexure A. It appears that the promotion to junior selection grade was subject to the condition that the candidate employee must complete five years of qualifying service on the day he is to be considered for junior selection grade. 7. 6. The resolution of the Finance Department afrosaid has been annexed with the counter affidavit, which has been marked as annexure A. It appears that the promotion to junior selection grade was subject to the condition that the candidate employee must complete five years of qualifying service on the day he is to be considered for junior selection grade. 7. On own showing of the petitioner, it appears that the petitioners were appointed as stenographers in the judgeship of Nawadah some time in the year 1985 and junior selection grade promotion was given to them vide order, as contained in annexure 2 dated 27.9.1995 with effect from 3.8.1987. 8. Admittedly, on the day they were given junior selection grade promotion they had only completed two years of service and requisite period of service was not completed by them, as required by the resolution of the Finance Department, as referred to above. 9. On the basis of the audit report, the District and Sessions Judge, Nawadah, modified the notification, as contained in annexure 2, vide his order as contained in annexure 1 and directed the petitioners to pay the excess amount paid to them on account of promotion to junior selection grade only. The order impugned, as contained in annexure 1, is based on the resolution of the Finance Department, as referred to above, and at the same time, the petitioners had not put in five years of service to get junior selection grade promotion with effect from 3.8.1987. The selection grade promotion given to the petitioners, prima facie, appears to be ab initio void, as it was not permissible. 10. Learned counsel appearing on behalf of the petitioners now submits that once the petitioners were promoted and they availed the financial benefits on account of the promotion, the excess amount paid to them should not be realised. Learned counsel also submits that before passing of the order impugned for recovery of the excess amount no opportunity of hearing was given to them. 11. In the counter affidavit, it is stated that before passing of the order, as contained in annexure 1, a notice was given to the petitioners, but they did not reply to the same. 12. Now learned counsel appearing on behalf of the petitioners placed reliance upon the case of Bihar Electricity Board and another V/s. Bijay Bhadur and another (2000 (10) Supreme Court Cases, 99). 13. 12. Now learned counsel appearing on behalf of the petitioners placed reliance upon the case of Bihar Electricity Board and another V/s. Bijay Bhadur and another (2000 (10) Supreme Court Cases, 99). 13. In the case at hand, it appears that the junior selection grade scale was given to the petitioners prematurely, as they had not completed five years of service, which was a pre-requisite condition as per the Finance Department resolution, as contained in annexure A to the counter affidavit, and, therefore, the promotion to the petitioners was ab initio void. 14. In the case of Bihar Electricity Board and another (supra), the facts were not identical and it appears that the employees of the Bihar Electricity Board since had not passed the requisite examination of Hindi Reading-Writing Examination and Hindi Noting and Drafting Examination, promotion given to them was withdrawn holding that there was no misrepresentation of facts on the part of the employees. 15. Here in the case at hand, the petitioners got promotion when they were not qualified for that nor the same was permissible in law. 16. In that view of the matter, the ratio laid in the case of Bihar Electricity Board (supra) does not apply to the present case. 17. For the reasons aforementioned, I do not find any merit in this application. 18. It is, accordingly, dismissed.