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2005 DIGILAW 770 (PAT)

Narendra Bhushan Prasad v. State Of Bihar

2005-08-26

NARAYAN ROY

body2005
Judgment 1. Heard counsel for the parties. 2. This writ application is directed against the order as contained in Annexure 5 issued vide memo no. 2543 dated 6.6.1986 whereby and whereunder the ad hoc promotion granted to the petitioner and similarly situated persons to the post of Chief Engineer vide notification dated 10.1.1986 has been cancelled. 3. It is submitted by learned counsel that the petitioner during his tenure & Superintending Engineer, was considered alongwith several other persons in public interest for promotion to the post of Chief Engineer. The authorities having examined the case of the petitioner and others and having been satisfied that he is also eligible for promotion to the post of Chief Engineer, promoted the petitioner on ad hoc basis by virtue of the notification as contained in Annexure 3 dated 10.1.1986 and within few days thereafter he superannuated with effect from 31.1.1986. His pension papers etc. were sent to the Accountant General, Bihar and ultimately pension payment order was issued by the Accountant General by virtue of which he started drawing his pension and till 2000 he drew the same. It is further submitted by learned counsel that after six months of the notification as contained in Annexure 3 the case was again examined by the authorities in the light of orders passed by this court in C.W.J.C. Nos. 5699 and 5709 of 1985 and its analogous cases and finding the notification of promotion not in accordance with law, cancelled the same vide order dated 6.6.1986 as contained in Annexure 5 but even thereafter his pension was revised from time to time which would be evident from Annexures 6 to 10. Learned counsel, now, submits that since the petitioner availed the pensionary benefits on the basis of his pay drawn for the post of Chief Engineer, the same cannot be recovered even without affording an opportunity of hearing to him. It is also submitted by learned counsel that in view of the fact that the petitioner drew his pension since 1986 till 2000, the same is not recoverable. 4. At this juncture, it would be appropriate to clarify that no such pleading is in the writ application to show that the authorities are making recovery of the excess amount paid to the petitioner save and except the order as contained in Annexure 5 whereby and whereunder his promotion has been cancelled. 5. 4. At this juncture, it would be appropriate to clarify that no such pleading is in the writ application to show that the authorities are making recovery of the excess amount paid to the petitioner save and except the order as contained in Annexure 5 whereby and whereunder his promotion has been cancelled. 5. Learned counsel for the State and also learned counsel for the Accountant General, on the contrary, submitted that ad hoc promotion granted to this petitioner and similarly situated persons on the post of Chief Engineer was challenged before this court by one Raj Mohan Prasad Sinha and Janki Prasad Sinha in C.W.J.C. Nos. 5699 and 5709 of 1985. The writ applications aforesaid were heard by a Bench of this court and were disposed of by order dated 31.3.1986 observing "....one of the points strongly urged on behalf of the petitioner based on Rule 27 of Bihar Engineering Service Class l Rules, 1939 was that as the petitioners are permanent Superintending Engineers and the respondents including the petitioners in C.W.J.C. Nos. 5699 and 5709 of 1985 are not. they could not have been appointed as Chief Engineer over the heads of the petitioners.......". 6. The authorities, in the light of the judgment of this court as referred to above, again examined and re-considered the case of the petitioner vis a vis the claim for the post and ultimately they passed the notification as contained in Annexure 5 cancelling ad hoc promotions granted to the petitioner and similarly situated persons. Learned counsel, therefore, submitted that the petitioner had no right to the post of Chief Engineer after issuance of notification as contained in Annexure 5 and consequently thereof, he was not entitled to draw pension for the post of Chief Engineer and in that view of the matter, no interference is required by this court. 7. From Annexure 3, prima facie, it appears that the petitioner and similarly situated Superintending Engineers were promoted on ad hoc basis in the cadre of Engineering Service Class l and specially for the post of Chief Engineer in the scale of Rs. 2600-3200 and ad hoc promotion was granted to them in anticipation of concurrence of the Bihar Public Service Commission (hereinafter referred to as the Commission) or till their superannuation. 2600-3200 and ad hoc promotion was granted to them in anticipation of concurrence of the Bihar Public Service Commission (hereinafter referred to as the Commission) or till their superannuation. It is manifestly clear from annexure 3 that the petitioners were promoted on ad hoc basis without concurrence of the Commission which was a condition precedent for promotion of the Superintending Engineers to the post of Chief Engineer. The order as contained in Annexure 3, in this view of the matter, did not create absolute right in the petitioner to avail the salary or other retiral benefits of the post of Chief Engineer as it was purely ad hoc and without concurrence of the Commission. This question was considered by this court, in the writ applications as referred to above and on the basis of the observations made by this court as quoted above, the case of promotion of the petitioner and similarly situated persons was again reviewed and the same was cancelled vide order as contained in Annexure 5. 8. Since the promotion so granted to the petitioner was found to be ab initio void, no right whatsoever was created in the petitioner and consequently thereof he was not entitled for pensionary benefit for the post of Chief Engineer. It is another question that the petitioner drew his pension up to 2000 on the basis of the pay scale of the Chief Engineer. After passing of the order as contained in Annexure 5, a copy of which was communicated to the Accountant General, Bihar, drawal of pension could have been stopped immediately but for the reasons best known, no embargo was put for drawal of pension and merely because the petitioner drew his pension from 1986 till 2000, will also not create any right in him to avail the same. 9. For the reasons aforementioned, I do not find any merit in this application. 10. In the result, this application is dismissed. 11. No costs.