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2004 DIGILAW 306 (PAT)

Suresh Kumar Verma v. State Of Bihar

2004-03-15

AFTAB ALAM

body2004
Judgment 1. Though the petitioner retired from the service as Accountant, the concerned authorities have decided to fix his pension and other retiral benefits in the lower pay- scale of Accounts Clerk. Challenging the decision of the departmental authorities and claiming his pension and other retiral dues on the basis of the last pay drawn by him (in the pay scale of Accountant) the petitioner has come to this court in this writ petition. The respondent authorities justify their decision on the ground that in the State Government there is no post or cadre of Accountant and Accountants are taken on deputation from the Accountant Generals office. In the State Government there was only the cadre of Accounts Clerk and petitioner was wrongly allowed to hold the post of Accountant and to draw his salary in the scale admissible to the post. 2. The case indeed presents an anomalous position but the anomaly is created not by any individual, least of all by the petitioner. It has resulted from the government decision in the past to set up Corporations/Boards that failed to function properly and consequently had to be closed down. 3. The facts of the case are brief and without controversy. The petitioner was appointed as Junior Accounts Clerk in the Irrigation Department of the State Government on 8.9.1960. He was promoted to the post of Sr. Accounts Clerk on 24.7.1973 (later, on 1.5.1980 the two posts of Junior and Senior Accounts Clerks were merged into a single post.) 4. The Bihar Water Development Corporation Private Limited was set up by government order no. 844, dated 28.2.1974 issued in pursuance of the government resolution no. 1216, dated 31.3.1973 and the services of the petitioner along with a number of other government employees were transferred to the Corporation. In the Corporation the petitioner was given provisional promotion to the post of Accountant by memo no. 407, dated 28.1.1980 issued by the Chief of Administration. 5. The service of the petitioner was re-transferred to the Tube Well Wing, Minor Irrigation Department of the State Government by notification no. 4648, dated 13.10.1986 issued by the Special Secretary, Minor Irrigation Department. 6. It may be noted here that on both occasions the petitioner had no option or say in the matter. 5. The service of the petitioner was re-transferred to the Tube Well Wing, Minor Irrigation Department of the State Government by notification no. 4648, dated 13.10.1986 issued by the Special Secretary, Minor Irrigation Department. 6. It may be noted here that on both occasions the petitioner had no option or say in the matter. His services were transferred from the Government to the Corporation without obtaining his consent or option and he was re-transferred to the government once again without obtaining his consent or option. 7. In the Tube Well Wing of the Minor Irrigation Department the petitioner was posted as Accountant in the office of the Co-ordinator (Financial Controller) by memo no. 7265, dated 17.12.1986. He finally retired from service from the post of Accountant, Tube Well Wing (HQ), Minor Irrigation Department, Water Resources on 31.7.2000. At the time of his retirement the petitioner was admittedly drawing his salary in the scale of Accountant and at that time his pay was Rs. 9413/-per month. 8. It is thus to be seen that on his retransfer to the State Government the petitioner held the post of Accountant for about 14 years and drew his salary in that scale without any objection from any quarter. It was only after his retirement, while fixing his pension and retiral dues, that the concerned authorities appear to have woken up to the realisation that in the State Government there was no post or cadre of Accountant and Accountants were taken on deputation from the Accountant Generals office. The petitioner was then given a notice under memo no. 3159 dated 24.6.2003 asking him to show cause why the promotion granted to him to the post of Accountant be not cancelled and he should be treated as holding the post of Sr. Accounts Clerk. On the basis of the show cause notice an order dated 18.7.2003 (Annexure-5) was issued cancelling the petitioners promotion to the post of Accountant and the second time bound promotion allowed to him w.e.f. 8.9.1985. In lieu, he was allowed first and second time bound promotions (in the scale of Accounts Clerk w.e.f. 1.4.1981 and 8.9.1985 respectively). By that order his monthly pay was re-fixed (for the period 29.1.1980 till the date of his retirement) following cancellation of his promotion as Accountant. In lieu, he was allowed first and second time bound promotions (in the scale of Accounts Clerk w.e.f. 1.4.1981 and 8.9.1985 respectively). By that order his monthly pay was re-fixed (for the period 29.1.1980 till the date of his retirement) following cancellation of his promotion as Accountant. The order went on to direct to fix his pension and other retiral dues on the basis of his monthly salary as determined in that order (in the scale of Accounts Clerk). 9. It is no ones case that the promotion given to the petitioner as Accountant when he was working in the Corporation was invalid, bad or illegal or was in breach of any rules. It is also not the case that the petitioner obtained the promotion and enjoyed the consequential benefits by suppressing or mis-representing any material facts. The validity of the promotion is in fact not an issue. And perhaps it is for that reason that in the impugned order dated 18.7.2003 there is a clear direction that no recovery is to be made from the petitioner of the excess amount received by him as salary on the post of Accountant. It is simply that in the State Government there is no post or cadre of Accountant and therefore his absorption on re-transfer from the Corporation to the State Government on the post of Accountant was wrong. In my view it is rather later in the day to raise the plea when the petitioner had retired from the service after working on the post of Accountant for about 14 years. The decision of the State Government to fix his pension and other retiral dues in the scale of Accounts Clerk amounts to deprive him of the promotion granted to him validly during his service tenure and to punish him for no fault on his part. The impugned decision appears to me to be patently unjust, unfair, unreasonable and arbitrary. In the facts of the case there is no reason to depart from the normal rule that a retired employee should get his pension and other retiral dues on the basis of the last pay drawn by him. 10. It may be noted here that the counsel for the petitioner tried to show that it was an incorrect plea that there was no post or cadre of Accountant in the State Government. 10. It may be noted here that the counsel for the petitioner tried to show that it was an incorrect plea that there was no post or cadre of Accountant in the State Government. He referred to some documents (e.g. Annexures-3,4 etc.) to contend that the provision for taking Divisional Accountants on deputation from the Accountant Generals office was only for the offices of the Executive Engineers of Irrigation Department and in the Headquarter where the petitioner had all along been posted there were regular posts of Accountant. But since I have already held that the petitioner is entitled to his pension and other retiral dues in the scale of Accountant in which he drew his last salary it is not needed here to go into the second question. 11. In the result, this writ petition is allowed and the concerned authorities, including the Accountant General, are directed to fix the petitioners pension and other retiral dues on the basis of the last pay drawn by him. The payment of all his lawful dues must be made within two months from the date of receipt/production of a copy of this order in the office of the Secretary, Minor Irrigation Department, Bihar, Patna.