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2003 DIGILAW 822 (PAT)

Sanjay Kumar Barnwal v. State

2003-08-06

CHANDRAMAULI KR.PRASAD

body2003
Judgment 1. This writ application has been filed for quashing the order dated 25.3.03 (Annexure 16) where by the time bound promotion given to the petitioners by order dated 14.12.88 has been rescinded and excess payment made to them directed to be recovered. Further prayer made by the petitioners to issue a writ in the nature of mandamus commanding respondent no.2 to take decision on the letter of the Chair-man-cum-Managing Director for promotion to the post of Assistant Accounts officer Grade I. 2. Shorn of unnecessary details facts giving rise to the present application are that by order dated 3.6.75 petitioners were appointed as Senior Auditor in the Bihar State Civil Supplies Corporation Ltd. (hereinafter referred to as the Corporation) in the pay scale of Rs. 355-555/-. By order dated 5th July, 76 petitioners were assigned work of accounts and posted at different places. By order dated 5th July, 77 petitioners were asked to officiate as Assistant Accounts officer. Respondent- Corporation in its office order dated 6.7.77 decided to re-designate the post of Auditor as Assistant Accounts officer Grade Il in the pay scale of Rs. 580-840/-. It is rel- evant here to state that the petitioners were officiating on the post of Assistant Accounts officer prior to the said date and in view of the decision dated 6th July, 77 Sr. Auditors officiating against the post of Assistant Accounts officer were to receive salary of the substantive post i.e. Rs. 335- 555/- but were entitled to officiating allowance of 25% of their basic pay. Ultimately by order dated 8th September, 77 (Annexure 4) and 27th September, 77 (Annexure 4/1) petitioners who were officiating as Assistant Accounts officer on adhoc basis were "promoted on substantive basis as Assistant Accounts officer" in the scale of pay of Rs. 580-20-740 EB-25- 840/- with effect from the 20th August, 1977, Their names also find place in the gradation list of the Assistant Accounts officer grade II. Thereafter it seems that the respondent-Corporation decided to make promotion of Assistant Accounts officer grade II to that Assistant Accounts officer grade I and by communication dated lst June, 1981 (Annexure 6) concurrence of Bureau of Public Enterprises was sought. Ultimately, it seems that the said proposal did not materialise. 3. The matter of grant of time bound promotion was placed before the Establishment Committee of respondent-Corporation in its meeting held on 8.12.88. Ultimately, it seems that the said proposal did not materialise. 3. The matter of grant of time bound promotion was placed before the Establishment Committee of respondent-Corporation in its meeting held on 8.12.88. The minutes of the Establishment committee shows that petitioners prior to their appointment as Assistant Accounts officer grade II were working as Senior Auditor and they had joined the post of Assistant Accounts officer on 20.8.77 and at that time the benefit of 12% pay enhancement on account of promotion was not given. The establishment committee taking the date of joining of the petitioners on 20.8.77 to the post of Assistant Accounts officer grade II decided to grant them first time bound promotion on completion of 10 years of service with effect from 20.8.77. In pursuance of the aforesaid decision of the Establishment committee, the respondent- Corporation by its order dated 14,12.88 (Annexure 9) granted time bound promotion to the petition to the post of Assistant Accounts officer grade I in the scale of Rs. 940-1660/-. The matter of pay fixation was sent to Bureau of Public Enterprises which was approved. Thereafter the revision of pay was made and by order dated 23.2.90 (annexure 11/2) the scale of pay of Assistant Accounts officer grade I from 940- 1660/-was revised to Rs 1000-1820/-. The matter was going smoothly for the petitioners but suddenly the Accountant General of Bihar and Jharkhand noticed illegality in the grant of time bound promotion to the petitioners and by communication dated 5.12.2000 (Annexure 14) asked the Corporation to make enquiry and recover excess amount paid on account of illegal promotion. The Accountant General in the said communication has stated that the petitioners were earlier appointed as Senior Auditors in the scale of pay Rs. 335-555/- and promoted to the post of Assistant Accounts officer grade ll in the scale of Rs. 580-840/- by order dated 8.9.77. Petitioners have been granted time bound promotion to the post of Assistant Accounts officer grade I in the scale of Rs 940-1660/- with effect from 20.8.77 by order dated 14.12.88 and as such petitioners have been granted promotion twice in ten years. Although aforesaid objection by Accountant General was made in its communication dated 5.12.2000 but the respondent-Corporation for the reasons best known to it did not act and for the first time by letter dated 27.6.02 gave show cause notice to the petitioners. Although aforesaid objection by Accountant General was made in its communication dated 5.12.2000 but the respondent-Corporation for the reasons best known to it did not act and for the first time by letter dated 27.6.02 gave show cause notice to the petitioners. The respondent-Corporation on consideration of the reply of the petitioners and taking the legal opinion came to the conclusion that the order dated 14.12.88 granting first time bound promotion to the petitioners is illegal and accordingly rescinded the same by the order dated 25.3.03. This is this order of the respondent-Corporation which is under challenge in the present application. 4. The question in the present case is very simple and that is whether the order dated 8th September, 1977 is order granting promotion to the petitioners or is an order of appointment. It is common ground that in case aforesaid order is treated to be an order of promotion, the order granting time bound promotion to the petitioner by order dated 14.12.88 with effect from 20.8.77 shall be illegal. However, in case it is held that the said order in fact is an order of appointment then the order granting time bound promotion with effect from 20.8.77 by order dated 14.12.88 shall be legal. 5. Mr. Ganesh Pd. Singh, Senior Advocate appearing on behalf of the petitioners made endeavour to establish that the order dated 8th September, 77 is an order of appointment whereas Mr. Pradhan Senior Advocate appearing on behalf of the respondent-Corporation and its officers said that the said order is nothing but an order of promotion and hence the petitioners were wrongly granted time bound promotion. When it came to the notice of the Corporation at the instance of the Accountant General, after a show cause notice, order granting time bound promotion was rescinded and direction for recovery of excess payment made to the petitioners have been made. In order to establish that the order dated 8th September, 77 is an order of appointment. Mr. Singh points out that the Auditors have their own channel for promotion and the post of Assistant Accounts officer does not find place in the channel of promotion and hence the order referred to above has to read to mean an order of appointment, notwithstanding the use of expression "promoted", in the said order Mr. Mr. Singh points out that the Auditors have their own channel for promotion and the post of Assistant Accounts officer does not find place in the channel of promotion and hence the order referred to above has to read to mean an order of appointment, notwithstanding the use of expression "promoted", in the said order Mr. Singh highlights that post of Senior Auditors were abolished and thereafter the petitioners have been adjusted against the post of Assistant Accounts officer and although the order uses expression that the petitioners have been promoted on substantive post, the said order has to be construed to mean an order of appointment. He submits that the said order is an order of appointment would be writ large from the fact that while granting time bound promotion to the post of Assistant Accounts officer grade I services rendered by the petitioners prior to that appointment to the post of Sr. Auditors have not been counted. Mr. Pradhan, however, submits that when the order in specific term uses the expression that the petitioners have been promoted to the post of Assistant Accounts officer, there is no escape from the conclusion that in fact the said order is an order of promotion. 6. Having appreciated rival submission I do not find any substance in the submission of Sri Singh. It is relevant here to state that the petitioners were appointed as Senior Auditors in the scale of Rs. 335- 555/-. The post of ADM account was redesignated as Assistant Accounts officer grade II in the scale of Rs. 580-940/- by office order dated 6th July, 77. Further post of ADM account which is in the chain of promotion of the Auditor was downgraded and re-designated as Assistant Accounts officer grade II in the scale of Rs. 580-840/- and a decision was taken that Senior Auditor like the petitioners who were officiating against the posts of Assistant Accounts officer grade II shall get salary of the substantive post i.e. Rs. 335- 555/- but they shall be entitled to officiating allowance of 20% of their basic pay. It is only thereafter by order dated 8th September, 77 petitioners were granted promotion on substantive basis to the post of Assistant Accounts officer and before that they were officiating on the said posts on adhoc basis. It seems that the respondent-Corporation did not had the need of either Sr. It is only thereafter by order dated 8th September, 77 petitioners were granted promotion on substantive basis to the post of Assistant Accounts officer and before that they were officiating on the said posts on adhoc basis. It seems that the respondent-Corporation did not had the need of either Sr. Auditor or Audit officer and on that account decided to re-designate the post of Audit officer to that of Assistant Account officer and decided to promote Senior Auditors to the post of Assistant Accounts officer. In that view of the matter, I am of the opinion that the order dated 8th September, 77 is in sum and substance an order of promotion and in fact has been stated so in the said order. 7. Mr. Singh then contends that in case the said order is considered to be an order of promotion petitioners were entitled to be given benefit of 12% of the basic pay in their pay fixation in the promoted post. It is relevant here to state that the petitioners before they were promoted to the post of Assistant Accounts officer grade II were working as Senior Auditors in the scale of Rs. 335-555/- whereas the scale of pay of Assistant Accounts officer is Rs. 580-840/- and it is not the case of the petitioners that in case they have got the benefit of 12% in pay fixation their salary would have been higher than what they were paid on promotion to the post of Assistant Accounts officer grade II. It seems that on account of promotion petitioners salary increased to the extent that the benefit of 12% in pay fixation would not have increased their salary. 8. Mr. Singh then contends that the persons junior to the petitioners have been given benefit of time bound promotion and in view of the decision dated 30th December, 1981 (Annexures 7/1, 7/2 and 7/3), petitioners are entitled to be given, time bound promotion. It has been highlighted that the grant of higher pay scale on account of upgradation/amalgamation shall not bar such employees time bound promotion, which submission Mr. Pradhan does not counter but submits that same has no bearing at all. It has been highlighted that the grant of higher pay scale on account of upgradation/amalgamation shall not bar such employees time bound promotion, which submission Mr. Pradhan does not counter but submits that same has no bearing at all. In my opinion the submission made by Mr, Singh proceeds on a very erroneous assumption that by order dated 8th September, 1977 the post of Senior Auditors have been upgraded or amalgamated to that of Assistant Accounts officer grade II. As observed earlier, respondent- Corporation first decided to downgrade the post of Audit officer to that of Assistant Accounts officer and thereafter decided to promote Senior Auditor to the post of Assistant Accounts officer. In that view of the matter, the said order promoting the petitioner to the post of Assistant Accounts officer grade II can not be said to either an order of amalgamation or upgradation and as such decisions of the Finance department referred to above have no bearing at all. 9. Mr. Singh then submits that by communication dated 1.6.81 recommendation was made by the Corporation to the Bureau of Public Enterprises for granting promotion to the post of Assistant Accounts officer and till date no decision has been taken. Accordingly, his prayer is to direct Bureau of Public Enterprises to take decision on the said recommendation of Corporation. I am not inclined to accede to this prayer of the learned counsel. The alleged recommendation was made as back as on 1.6.1989 and much water has flown in Gangajee in the meanwhile. At such a distance of time, I am of the opinion that the said prayer is absolutely uncalled for. 10. Mr. Singh lastly submitted that the petitioner had no role to play in grant of time bound promotion and as such recovery of the amount after such a long period would be highly arbitrary and unjust. Mr. Pradhan appearing on behalf of the respondents submitted that in the facts of the present case respondents have no option than to ask to refund of excess amount paid to the petitioners. In support of submission Mr. Pradhan has placed reliance on a judgment of learned Single Judge of this court in the case of Ashok Kumar V/s. State & Ors. In support of submission Mr. Pradhan has placed reliance on a judgment of learned Single Judge of this court in the case of Ashok Kumar V/s. State & Ors. 1999 (2) PLJR 829 and my attention has been drawn to para 7 of the judgment which reads as follows : "Remedy under Article 226 of the Constitution is equitable extraordinary jurisdiction. The aim of the equity is to promote honesty. In this case the petitioner has been promoted earlier and on false representation he got first time bound promotion which is not permissible. He being a government servant is required to maintain honesty and absolute integrity. His conduct in that case disentitles him to get any relief." Another decision on which Mr. pradhan has placed reliance is a Division Bench Judgment of this court in case of Secretary, Department of Planning and Development V/s. Awadh Murari Prasad and ors 2002 (1) PLJR 386 . 11 Having appreciated the rival submissions, I am of the opinion that it is not the case of the respondents that at the time when the petitioners were granted time bound promotion, they made any misrepresentation or committed any fraud. Respondent-Corporation earlier considered the order of promotion to be an order of appointment and accordingly, granted time bound promotion to the petitioners which on objection by Accountant General was re-examined and it was found that in fact petitioners were earlier promoted and not appointed. For that no fault can be fastened on the petitioners. So far the authorities of this court relied on by Mr. Pradhan, same are clearly distinguishable. In case of Ashok Kumar (supra) this court found that the person was promoted on false representation which is not the situation here. In that view of the matter, I am of the opinion that the impugned order to the extent it directs for recovery of excess payment made to the petitioners cannot be allowed to stand. 12. In the result the writ application is partly allowed. The order dated 25.3.03 only to the extent that it directs recovery of excess payment made to the petitioners is quashed. No cost.