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2006 DIGILAW 409 (PAT)

Md. Abdul Qaivum v. State Of Bihar

2006-05-03

MRIDULA MISHRA

body2006
Judgment 1. Petitioner has retired from the post of Supervisor on 31.12.2003 from Malwari Chaukee Rearing Centre, Pirpainty, Bhagalpur. This application has been filed by the petitioner for quashing the following "order: (1) The order contained in memo no. 1091 dated 13.10.2004. (2) The order bearing memo no. 1119 dated 29.10.2004 by which leave encashment of the petitioner has been determined at reduced pay and order for recovery was passed. (3) Letter bearing memo no. 1120 dated 20.10.2004 by which pension and gratuity has been fixed in the reduced scale and order for recovery of the excess amount of gratuity has been passed. (4) Letter bearing memo no, 1138 dated 4.11.2004 by which the petitioners pay was refixed on the reduced scale and retirement benefits have been re-determined on the basis of reduced pay and order for recovery has also been passed. 2. Petitioner has further prayed tor a direction to the respondents to revise the order in letter no. 109 dated 24.1.2004 and the order contained in memo no. 190 dated 25.2.2004 by which leave encashment and group insurance have been sanctioned. Further prayer of the petitioner is to restrain the respondents from recovering any amount from the retirement benefits of the petitioner. 3. During the pendency of this application I.A. No. 901 of 2006 has been filed by the petitioner with a prayer to quash the letter no. 158 dated 1.2.2006 whereby the benefits of first time bound promotion earlier given to other Overseers who were promoted to the post of Supervisor before 1.4.1981 have been cancelled. 4. Petitioner was appointed as Overseer in the pay scale of Rs. 45-75 on 31.1.1962. He was promoted to the post of Supervisor/Special Inspector vide order dated 27.8.1979 in the pay scale of Rs.296-460. The petitioner was adjusted to the post of Supervisor due to non-availability of the post of Special Inspector. Recommendation of the 4th Pay Revision Committee was accepted by the State of Bihar vide Resolution No. 10770 dated 30.12.1981, and the pay scale of Supervisor was revised to Rs.580-860 with effect from 1.4.1981. The report of Pay Anomaly Committee came on 15.1.1987 and the pay scale of Overseer and Supervisor was made equivalent with effect from 1.1.1986. Recommendation of the 4th Pay Revision Committee was accepted by the State of Bihar vide Resolution No. 10770 dated 30.12.1981, and the pay scale of Supervisor was revised to Rs.580-860 with effect from 1.4.1981. The report of Pay Anomaly Committee came on 15.1.1987 and the pay scale of Overseer and Supervisor was made equivalent with effect from 1.1.1986. The recommendation made by the Pay Anomaly Committee was accepted by the State Government, vide Resolution No. 224 dated 15.1.1987 but so far the monetary benefit is concerned, it remained notional effect from 1.1.1986 and actual benefit was given with effect from 1.3.1986. 5. Petitioner was given first time bound promotion with effect from 1.3.1986 in the pay scale of Rs. 680-965 in terms of recommendation of 4th Pay Revision Committee vide order dated 2.3.1989. Subsequently, the recommendation of the Fifth Pay Revision Committee was accepted by the State Government vide Resolution No. 6021 dated 10.12.1989 and pay scale of Overseer/Special Inspector was revised to the scale of Rs.1200-1800 with effect from 1.1.1986. Petitioner was given second time bound promotion with effect from 31.1.1987 in the pay scale of Rs. 730-1080 and again on the basis of recommendation of the 6th Pay Revision Committee, the pay to the post of Overseer/Special Inspector was revised to the scale of Rs. 4000-6000 vide Resolution No. 660 dated 8.2.1999 by the State Government. In terms of recommendation of the Pay Anomaly Committee, the earlier revision of pay scale of overseer in the scale of Rs. 580-860 was partially modified and the date of time bound promotion was shifted with effect from 31.4.1981. The date of the second time bound promotion was also modified and shifted to 31.1.1987 which was earlier with effect from 25.11.1989. 6. Petitioner availed the benefit of first and second time bound promotion and finally availed the benefit of replacement pay scale on the basis of recommendation of the 6th Pay Revision Committee. He superannuated from the post of Supervisor on 31.12.2003. 7. While the petitioner was in service the Assistant Director, Sericulture, sent the record of the petitioners first and second time bound promotion for approval to the Director General, Sericulture, Bihar, Patna. The Director, Handloom and Sericulture, vide letter dated 26.6.2003 instructed the Assistant Director, Sericulture, Bhagalpur, to examine the case of the petitioners promotions in the light of letter no. While the petitioner was in service the Assistant Director, Sericulture, sent the record of the petitioners first and second time bound promotion for approval to the Director General, Sericulture, Bihar, Patna. The Director, Handloom and Sericulture, vide letter dated 26.6.2003 instructed the Assistant Director, Sericulture, Bhagalpur, to examine the case of the petitioners promotions in the light of letter no. 4245 dated 16.7.1985 of Finance Department by which Clause-11 of Finance Department letter no. 10770 dated 31.12.1981 has been relaxed. It was instructed by the Director that if the petitioner is found eligible for first and second time bound promotion in the light of letter no. 4245 dated 16.7.1985, then such benefit should be given to him and the same be entered into his service book. The Assistant Director, Sericulture, Bhagalpur, after examining the case of the petitioner, recommended for its examination at the Directorate level in the light of the circular no. 4245 dated 16.7.1985 which has subsequently been clarified by the circular bearing memo no. 4756 dated 4.8.1987 (Annexure-12/1). 8. While the matter regarding approval of first and second time bound promotions was still under consideration, petitioner retired on 31.12.2002. His retiral benefits were determined and paid on the basis of last pay drawn except 10% pension and gratuity. Full pension of the petitioner was fixed at Rs. 3477/- and 90% thereof at Rs. 3129/- was sanctioned. Full gratuity Rs. 1,68,795/- was sanctioned and 90% of it Rs.1,51,916/-. was paid. Group insurance and Provident Fund were sanctioned and paid. 9. Petitioner filed Cr. Misc. No. 11834 of 2004 for payment of full pension, arrears of D.A. for the period July, 1999 to December, 2001 and also arrears of enhanced D.A. as well as 10% of gratuity. The writ petition was disposed of in terms of general order passed in C.W.J.C. No. 7054 of 2003 dated 19.9.2003. 10. After petitioners retirement on the direction of the Director, Sericulture, the Assistant Director, Sericulture, Bhagalpur, vide letter no. 423 dated 16.4.2004 asked an explanation from the petitioner regarding his entitlement for first and second time bound promotions. Petitioner submitted his explanation that in view of Finance Departments circular no. 4245 dated 16.7.1985, he is entitled for the benefit of first and second time bound promotions. Thereafter, no information regarding any decision was given to the petitioner but the Director informed the Assistant Director vide letter no. Petitioner submitted his explanation that in view of Finance Departments circular no. 4245 dated 16.7.1985, he is entitled for the benefit of first and second time bound promotions. Thereafter, no information regarding any decision was given to the petitioner but the Director informed the Assistant Director vide letter no. 1671 dated 9.10.2004 that in the light of Finance Departments letter no. 10770 dated 30.12.1981 petitioner is not entitled for first and second time bound promotions. The Accountant General, Bihar was also informed by the Respondent that petitioner was not entitled for first and second time bound promotions as orders granting promotions have been cancelled. However, specifically vide letter bearing Memo No. 1090 dated 13.10.2004 benefit of second time bound promotion was allowed with effect from 31.1.1987. 11. The Assistant Director, thereafter, vide letter no. 1135 dated 4.11.2004 refixed and reduced the pension, gratuity and leave encashment of the petitioner and directed the petitioner to deposit a sum of Rs. 81,04.60 paise or it will be recovered from his retirement benefits. It was stated that since the petitioner has wrongly availed benefit of first and second time bound promotions, as such, the amount is recoverable. Further, in order of recovery of Rs. 3,576/- was passed vide Memo No. 1119 dated 29.10.2004 because leave encashment amount was reduced and refixed. 12. Petitioner has challenged the impugned orders contained in Annexures-1, 2, 3 and 4 as well as Annexure-B to the supplementary counter-affidavit contained in letter bearing Memo No. 158 dated 1.2.2006 on the ground that orders are illegal and arbitrary as well as in clear violation of Annexures-12/1 and 12/2 of the writ application i.e. Finance Departments Resolution No. 4245 dated 17.7.1985 as well as Finance Departments letter no. 4756 dated 4.8.1987. These are the letters on the basis of which first and second time bound promotions were given to the petitioners and their being no excess payment, the impugned orders are need to be quashed. 13. On perusal of Finance Departments letter no. 4245 dated 16.7.1985 (Annexure-12/1), I find that this letter provides that in the event promotion is given prior to upgradation/merger of lower pay scale to higher scale, such promotion shall not be counted as promotion for the purpose of granting of first time bound promotion. 13. On perusal of Finance Departments letter no. 4245 dated 16.7.1985 (Annexure-12/1), I find that this letter provides that in the event promotion is given prior to upgradation/merger of lower pay scale to higher scale, such promotion shall not be counted as promotion for the purpose of granting of first time bound promotion. Circular No. 4756 dated 4.8.1987 provides for payment of arrears of salary on account of first time bound promotion on recommendation of 4th Pay Revision Committee with effect from 1.4.1981 instead of 1.4.1985. Petitioner was given first time bound promotion with effect from 1.3.1986 in terms of recommendation of 4th Pay Revision Committee vide order dated 2.3.1989 in view of circular no. 4245 dated 16.7.1985 although petitioner was promoted to the post of Supervisor vide order dated 27.8.1979 in the pay scale of Rs. 296-467. The pay scale of Supervisor was revised to Rs. 580-860 with effect from 1.4.1981 and on the basis of the report of Pay Anomaly Committee, pay scale of Overseer/Supervisor was made equivalent with effect from 1.1.986. Since the petitioner was given promotion from the post of Overseer to Supervisor prior to 1985 and the pay scale of Overseer and Supervisor was merged in view of the Pay Anomaly Committee, he was considered to be entitled for first time bound promotion in the light of Finance Departments Resolution No. 4245 dated 16.7.1985. This Resolution of the Finance Department clearly indicated that binding imposed by Clause-7 of the Finance Departments Resolution No. 10770 dated 30.12.1981 is being cancelled in respect of such promotion which is being given prior to upgradation/merger of the lower pay scale to higher pay scale. In such cases, promotion shall not be counted as promotion for the purpose of grant of first time bound promotion. Petitioners case is fully covered by Finance Departments Resolution No. 4245 dated 16.7.1985. 14. Learned counsel for the petitioner has pointed out that similar promotions were given to other Overseers also but their promotions have not been cancelled by the Respondent. Only the petitioner has been discriminated. 15. When the counsel for the State was asked to reply this allegation made by the petitioner, supplementary counter-affidavit was filed. 14. Learned counsel for the petitioner has pointed out that similar promotions were given to other Overseers also but their promotions have not been cancelled by the Respondent. Only the petitioner has been discriminated. 15. When the counsel for the State was asked to reply this allegation made by the petitioner, supplementary counter-affidavit was filed. Alongwith supplementary counter-affidavit Memo No. 158 dated 1.2.2006 (Annexure-B) was annexed whereby the general order was passed regarding cancellation of first time bound promotion in case of Overseers who were given first time bound promotion like the petitioner. This order has also been challenged by the petitioner by filing I.A. No. 901 of 2006. 16. The reason assigned for cancellation of first time bound promotion of the petitioner in the counter-affidavit and in the supplementary counter-affidavit that petitioner was not entitled for first time bound promotion in view of Finance Departments letter no. 10770 dated 30.12.1981. I find that respondent while passing the orders cancelling the first time bound promotion given to the petitioner in the light of Finance Departments letter No. 10770 dated 30.12.1981 overlooked Finance Departments Resolution no. 4245 dated 16.7.1985 which clearly provides that by Resolution No. 10770 dated 30.12.1981 Clause-7 is being cancelled in cases of first time bound promotion as given to the petitioner. Learned counsel for the State has not replied this point either in the counter-affidavit or in the supplementary counter-affidavit or in the submissions made before this Court. 17. On consideration of the entire materials on record as well as submissions of the parties, I find that the orders contained in letter bearing Memo No. 1091 dated 13.10.2004 (Annexure-1), order bearing Memo No. 1119 dated 29.10.2004 (Annexure-2), letter bearing Memo No. 1120 dated 29.10.2004 (Annexure-3) as well as letter bearing Memo No. 1135 dated 4.11.2004 (Annexure-4) cancelling the first time bound promotion in favour of the petitioner and refixing and reducing the pay and all retirement benefits of the petitioner are in violation of the Finance Departments Resolution No. 4245 dated 16.7.1985 as well as Finance Departments letter no. 4756 dated 4.8.1987. The order contained in Annexure- 3 to the supplementary counter-affidavit bearing Memo No. 158 dated 1.2.2006 is also being quashed as it has been issued without considering the legality of passing an order. 4756 dated 4.8.1987. The order contained in Annexure- 3 to the supplementary counter-affidavit bearing Memo No. 158 dated 1.2.2006 is also being quashed as it has been issued without considering the legality of passing an order. Respondents are directed to maintain the order in letter No. 108 dated 24.1.2004, order bearing Memo No. 109 dated 25.2.2004 and letter bearing Memo No. 110 dated 24.1.2004 by which leave encashment, group insurance and pension of the petitioner was fixed and directed to be paid. Respondents are directed to refix and revise the pension of the petitioner and make payment of arrears of pension, gratuity, leave encashment as well as group insurance amount. The amounts, which have been recovered from pension, gratuity and leave encashment of the petitioner should also be paid to him. Respondents are directed to finalise all these matters within three weeks from the date of production/communication of the order and make payment of all these amounts immediately thereafter. 18. With this observation and direction this writ application is allowed.