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2005 DIGILAW 301 (PAT)

Awadh Muni Prasad v. State Of Bihar

2005-03-14

NARAYAN ROY

body2005
Judgment 1. Heard counsel for the parties. 2. The petitioner substantially has raised a grievance against the order, as contained in annexure 21, whereby and whereunder prayer of the petitioner to revise his pension from Rs. 4159/- to Rs. 4707/- has been rejected. 3. This case has chequered career. It appears that the petitioner has approached this Court on several occasions after his superannuation on account of cancellation of his time bound promotions and also against the order to recover the excess amount paid to him and the writ applications, however, were disposed of. The grievance of the writ petitioner in C.W.J.C. No. 8599 of 1999 pertained to withholding of 10% and 25% of his pension and gratuity, respectively. The writ application aforesaid was disposed of by this Court vide order, as contained in annexure 5, with a direction to the authorities to issue necessary sanction order with respect to the aforesaid remaining dues in the admissible scale. The order aforesaid, however was challenged by the respondents in L.P.A. No. 464 of 2001. The Letters Patent Appeal aforesaid was disposed of vide order, as contained in annexure 9, directing the authorities to take fresh decision in the matter as to whether time bound promotion or regular promotion granted to the petitioner was valid one, after giving him an opportunity of hearing. The decision was to be rendered within two months from the date of receipt/production of a copy of the order. This Court further observed that the writ petitioner should be allowed the benefit of only one promotion and the benefit of the other promotion be withdrawn, if not already withdrawn, by making recovery. 4. From the order impugned, it appears that the authorities, as per direction of this Court, issued in C.W.J.C. No. 10474 of 2003 and the Letters Patent Appeal aforesaid held that the petitioner was entitled only for one promotion, that is to the post of Junior Statistical Assistant (Supervisor) and, accordingly, the fixation of his pension at the rate of Rs. 4159/- is justified. 5. Learned counsel for the petitioner submitted that the excess amount paid to the petitioner on account of his promotion to the post of Junior Statistical Assistant (Supervisor) has been recovered and at the same time, he has been denied the benefits of time bound promotion. 6. 4159/- is justified. 5. Learned counsel for the petitioner submitted that the excess amount paid to the petitioner on account of his promotion to the post of Junior Statistical Assistant (Supervisor) has been recovered and at the same time, he has been denied the benefits of time bound promotion. 6. In the writ application the petitioner has challenged the order, as contained in annexure 21, whereby and whereunder his prayer to revise his pension has been rejected. 7. From the materials on record and averments made in the counter affidavit, it is manifest that the time bound promotion granted to the petitioner was held to be impermissible and, thus, on the basis of his promotion to the post of Junior Statistical Assistant (Supervisor) was upheld by the authorities, and, accordingly, his pension was fixed. 8. A Government servant is entitled to get regular promotion in his cadre provided there is avenue of promotion and in case, there is no avenue of promotion, then he would be entitled for first time bound promotion after completion of ten years of service and second time bound promotion after completion of 25 years of service. In the case at hand, the petitioner was already promoted from the post of Compiler to the post of Junior Statistical Assistant (Supervisor) and his scale, accordingly, was revised. However, from the tenor of argument of learned counsel for the petitioner, it appears that even though his time bound promotion was cancelled, the respondent authorities also recovered the excess amount paid to the petitioner on account of his promotion in regular way. 9. From the pleadings of the parties, it appears that the petitioner superannuated on 31.1.1998 and after his retirement 10% of his pension and 25% of his gratuity were withheld. The order withholding pension and gratuity of the petitioner, however, was set aside by the High Court and directed payment of the same. However, this Court in Letters Patent Appeal, as referred to above, observed: "The writ petitioner should be allowed the benefits of only one promotion and the benefits of the other promotion be withdrawn, if not already withdrawn, by making recovery." 10. However, this Court in Letters Patent Appeal, as referred to above, observed: "The writ petitioner should be allowed the benefits of only one promotion and the benefits of the other promotion be withdrawn, if not already withdrawn, by making recovery." 10. The order impugned, however, is silent on the point as to whether after holding the petitioner disentitled for time bound promotion any recovery has been made from his pension or the respondent authorities have already recovered the excess amount paid to the petitioner on account of his regular promotion. 11. In case, certain recovery would have been made from his pension on account of regular promotion, the petitioner would be entitled to get the refund of the same in view of the subsequent decision of the authorities disentitling him from the benefits of time bound promotions. The confusion still writs large as to the recovery from the petitioner. In course of argument, learned counsel for the petitioner staled that since necessary recovery has been made from the petitioner on account of promotion to the post of Junior Statistical Assistant (Supervisor) necessarily he would be entitled for time bound promofens. 12. Having appreciated this submission of learned counsel for the petitioner, this court vide an order dated 10.1.2005 directed Standing Counsel No. 4 to put in affidavit stating as to whether the amount already recovered from the petitioner has been paid back and as to whether on that account he is being denied the benefit of time bound promotion. Pursuant to this order a supplementary counter affidavit has been filed by Standing Counsel No. 4, but nowhere it is stated as to whether any recovery was made from the petitioner on account of the excess payment for the post of Junior Statistical Assistant (Supervisor). 13. In this view of the matter, it would not be appropriate for this Court to issue any positive direction to the authorities and the matter requires fresh consideration by the authorities as to whether any recovery has been made from the petitioner from the post of Junior Statistical Assistant (Supervisor) and as to whether the recovered amount has been refunded to the petitioner after holding him disentitled for time bound promotions. 14. 14. The authorities concerned, in that view of the matter, are directed to decide these questions after affording an opportunity of hearing to the petitioner within a period of three months from the date of receipt/production of a copy of this order. 15. With the direction/observation aforesaid, this application is disposed of.