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2005 DIGILAW 659 (PAT)

Surendra Prasad Singh v. State Of Bihar

2005-07-28

RADHA MOHAN PRASAD

body2005
Judgment 1. In this writ petition, the petitioner has assailed the validity of letter no. 8648(E) dated 17.11.2000, contained in Annexure 7, insofar as it relates to him, and also order for recovery of salary received by him on the promoted post. 2. According to the case of the petitioner, he was initially appointed as Laboratory Assistant on 11.11.1970 in the vacant post of Shri Raj Kishore Prasad, L.A., till a permanent arrangement is made by the Superintending Engineer, Advance Planning Circle, P.W.D., Patna, vide office order contained in Annexure 1. It is claimed that the service of the petitioner as Laboratory Assistant was confirmed, vide order dated 9.12.1991 (Annexure 2) read with Annexure 2/1. The petitioner was granted first time bound promotion with effect from 1.4.1981, vide Annexure 5, and the second time bound promotion with effect from 12.11.1995 on provisional basis, vide Annexure 6. In the said letter, however, it was mentioned that in course of confirmation by the Finance Department, if it is found that the grant of time bound promotion is bad and on account of which ex-cess payment has been made, then excess amount shall be recovered from the petitioner. Later on 17.11.2000, vide impugned order, contained in Annexure 7, the order granting first time bound promotion has been cancelled as it was found to be irregular/illegal. 3. According to the petitioner, there was no illegality in the grant of first time bound promotion as he completed ten years of service from his initial appointment, contained in Annexure 1, and thus he was rightly given the first time bound promotion with effect from 1.4.1981, vide Annexure 5. 4. A counter affidavit has been filed on behalf of the Chief Engineer, Road Construction Department, Government of Bihar (respondent no. 4), in which it is admitted that the petitioner was granted first time bound promotion, vide Annexure 5, but later it was detected that the aforementioned promotion granted was not correct and contrary to the Finance Department Circular, bearing No. 1503 dated 27.3.1987, a photo copy whereof has been annexed as Annexure A. 5. According to the case of the respondents, as per the said Government circular, the period of work-charged establishment is to be counted for the purpose of time bound promotion, but the financial benefit is not to be granted before 27.3.1987. According to the case of the respondents, as per the said Government circular, the period of work-charged establishment is to be counted for the purpose of time bound promotion, but the financial benefit is not to be granted before 27.3.1987. It is stated that the petitioner was initially appointed as work-charge employee on 11.11.1970 and the scheme for grant of time bound promotion came into effect with effect from 1.4.1981. Thus, the petitioner alongwith others got first time bound promotion, vide Annexure 5, and accordingly received the financial benefits with effect from 1.4.1981 to 26.3.1987, which was not in accordance with the rules and the provisions laid down in the Government circular. 6. The petitioner has filed reply to the said counter affidavit. 7. Learned counsel appearing for the petitioner has submitted that the respondents have wrongly stated in the counter affidavit that the petitioner was initially appointed as work-charge employee on 11.11.1970. According to the learned counsel, the petitioners appointment was in the regular establishment and, as such, Annexure A has got no application to his case. 8. Learned counsel for the State, on the other hand, has submitted that, in fact, the petitioners service was in the work- charged establishment and was regularised, vide order dated 10.4.1991, contained in Annexure F to the second supplementary counter affidavit filed on behalf of respondent no. 4 and contended that by office order dated 9.12.1991 (Annexure 2) the service of the petitioner was confirmed with effect from the date of his coming into the regular establishment, i.e., 1.6.1978. However, he submitted that in any event the appointment of the petitioner, vide Annexure 1, was purely an ad hoc appointment. Even if assuming that he is not a work-charge employee, it was purely an ad hoc appointment till a permanent arrangement was made by the Superintending Engineer. He thus contended that the petitioner cannot claim the benefit of his such service for the purpose of grant of time bound promotion, being ad hoc employee, which was also regularised vide office order dated 10.4.1991 contained in Annexure F. 9. He thus contended that the petitioner cannot claim the benefit of his such service for the purpose of grant of time bound promotion, being ad hoc employee, which was also regularised vide office order dated 10.4.1991 contained in Annexure F. 9. I find substance in the submission of the learned counsel for the State, It is difficult to come to the conclusion that vide office order, contained in Annexure 1, the petitioner was appointed as work-charge employee in the work-charged establishment but, at the same time, the said order clearly shows that his appointment was purely adhoc in the vacant post of Shri Raj Kishore Prasad, L.A. till a permanent arrangement is made by the Superintending Engineer, Advance Planning Circle, P.W.D., Patna. Later on, the power of appointment was vested in the Chief Engineer, vide order dated 15.10.1974, contained in Annexure E. The Chief Engineer, vide order dated 10.4.1991, contained in Annexure F, regularised the service of the petitioner alongwith several others with effect from 1.6.1978. 10. As such, in my opinion, Annexure A will have no application to the case of the petitioner. Learned counsel for the petitioner has not been able to show from any rule/order, according to which, the period of such ad hoc appointment is also to be counted for the purpose of grant of time bound promolion. 11. Under such circumstances, I do not find any merit in the writ petitioner and it is. accordingly dismissed.