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2006 DIGILAW 697 (PAT)

Ram Bachan Tiwari v. State Of Bihar

2006-08-10

RAMESH KUMAR DATTA

body2006
Judgment 1. Heard Mr. Vishwanath Ram, learned counsel appearing for the petitioner and learned J.C. to Govt. Advocate No. 5. 2. The petitioner seeks quashing of the office order dated 20.8.2004 (Annexure-1) issued by Respondent No. 2, Chief Engineer, Water Resources Department, whereby the promotion granted to the petitioner on the post of Head Sarang as back as on 2.3.1981 has been cancelled on the ground that no promotion other than time bound promotion is admissible to the employees of the work charged establishment and it has also been ordered to make recovery of the excess amount paid to him. 3. The petitioner was initially appointed as Khalasi on 1.6.1968 in the scale of Rs. 65-72/- in the work charge establishment of the Water Resources Department with effect from 26.4.1972. He was appointed as Assistant Sarang in the scale of Rs. 85- 110/- in the same work charged establishment. Subsequently, by office order dated 2.3.1981, he was promoted to the post of Head Sarang by order of the Chief Engineer in the scale of Rs. 240-396/- in the work charged establishment. Thereafter, the petitioner was brought into the regular establishment by letter dated 20.8.1985 issued with the concurrence of the Finance Department and made permanent as Head Sarang. By Circular dated 27.3.1987 of the Finance Department (Annexure-5) it was decided that time bound promotion shall be provided to work charged employees also with effect from the said date and their period of functioning in the work charged establishment shall also be counted for the purpose of total service when they are taken into regular establishment. By the office order dated 15.7.1991 of the Superintending Engineer, the petitioner was granted first time bound promotion in the scale of Rs. 1200-1800/- with effect from 2.3.1991. Thereafter, the petitioner was served a show cause notice by memo dated 24.9.2003 stating that the first time bound promotion granted to him with effect 2.3.1991 was contrary to rules and to explain why the same should not be cancelled the excess amount so paid recovered. On receipt of the show cause reply filed by the petitioner by order dated 1.11.2003 (Annexure-9) first time bound promotion granted to the petitioner was cancelled and it was ordered to recover the excess amount paid as a consequence of the said time bound promotion. 4. On receipt of the show cause reply filed by the petitioner by order dated 1.11.2003 (Annexure-9) first time bound promotion granted to the petitioner was cancelled and it was ordered to recover the excess amount paid as a consequence of the said time bound promotion. 4. Thereafter by the impugned order dated 20.8.2004 the earlier order dated 1.11.2003 was cancelled and it was decided that the promotion granted to the petitioner on the post of Head Sarang was contrary to law as no promotion is permissible to a member of the work charged establishment, and further the date of time bound promotion was shifted from 2.3.1991 to 27.3.1987 and it was further ordered to recover the excess amount paid to him on account of grant of such wrong promotion. 5. Learned counsel for the petitioner submits that the order dated 20.8.2004 is contrary to law and the same is fit to be set aside because it is held in the Circular contained in Bihar Irrigation Manual that promotion was granted to work charged employees. ln this regard, he refers to Irrigation Department Circular No. 4000 dated 9th March, 1954, which was written in reference to the demands of the Workers Union of work charged employees of the Public Works Department, Dehri. With respect to Demand No. 7, it is stated that the promotion to skilled jobs will continue to be on seniority-cum-merit basis as at present. On the basis of the said Circular, learned counsel submits that promotion was being granted to work chaged employees not only from the date of the said tetter but also from before which is evident from the tenor of the said letter. 6. With respect to the first time bound promotion also, learned counsel tried td justify his stand by referring to memo no. 1503 dated 27.3.1987 issued by the Finance Department and claimed that it had been rightly granted to him on the basis of the said decision of the State Government. Learned counsel also relics on the Finance Department Circular as contained in memo no. 95 dated 7.3.1990 which provides that time bound promotion is to be granted where a person is appointed directly on fresh cadre and any earlier promotion or time bound promotion granted in the previous cadre is not to be taken into consideration for the said purpose. 7. 95 dated 7.3.1990 which provides that time bound promotion is to be granted where a person is appointed directly on fresh cadre and any earlier promotion or time bound promotion granted in the previous cadre is not to be taken into consideration for the said purpose. 7. In support of his stand, learned counsel for the petitioner relies upon a decision of this court in the case of Asharfi Paswan V/s. State of Bihar and Ors., 2005(4) PLJR 259 . In the said case promotion had been granted to work charged employees in 1973 and it was cancelled after 31 years on the basis of the Government letter dated 16.9.1994. After considering the case of the parties, this court held as follows in paragraph no. 6 of the judgment: "6. In my opinion, there cannot be any valid justification to cancel the order of upgradation/promotion of the petitioner after lapse of 31 long years and direct for recovery of the alleged excess payment to be made after taking work from him of the said post for such a long period, moreso, when learned counsel lor the State has not been able to show that there was any bar in granting upgradation/ promotion of the work charge employee in the year 1973." 8. In the present case also promotion granted to the petitioner in the year 1981 on the post of Head Sarang is sought to be cancelled by order dated 20.8.2004 and thus the case stands on the same footing as that of Asharfi Paswans case (supra). 9. Learned counsel relies upon another order of the single Bench of this court dated 29.9.2004 passed in C.W.J.C. No. 13089 of 2003: Shardendu Kumar Thakur Indu V/s. The State of Bihar and Ors. Tnere also the promotion was sought to be cancelled after 25 years of service and this court quashed the order for the same reason. 10. Learned counsel appearing for the State was unable to show any specific Circular or instruction of the State Government by which there was a bar upon the grant of promotion to work charged employee. Moreover, he was unable to distinguish the case of the petitioner from that of Asharfi Paswan and Shardendu Kumar Thakur Indu. Thus, the order dated 20.8.2004 (Annexure-1) is contrary to the law laid down by this court in the earlier decision and cannot stand and is, accordingly, quashed. 11. Moreover, he was unable to distinguish the case of the petitioner from that of Asharfi Paswan and Shardendu Kumar Thakur Indu. Thus, the order dated 20.8.2004 (Annexure-1) is contrary to the law laid down by this court in the earlier decision and cannot stand and is, accordingly, quashed. 11. The effect of quashing of the order dated 20.8.2004 wouid be that.the earlier order cancelling the first lime bound promotion to the petitioner shall revive on consideration of memo no. 5947 dated 1.11.2003 (Anncxure-9). It appears that the same was cancelled on the ground that the petitioner had already been granted one promotion on the Post of Pradhan Sarang on 2.3.1991 and a promotion on the post of Head Sarang on 2.3.1981 and for the said reasons he became disentitled to any further first time bound promotion. From the Finance Department Resolution contained in Resolution No. 10770 dated 30.12.1981 it is clear that the first time bound promotion is admissible only to such persons, who have not received a single promotion after entry into the Government service (or ten years. Since the petitioner had already received promotion from the post of the Assistant Sarang to Head Sarang, the authorities are justified in cancelling the first time bound promotion wrongly granted and directing the recovery lor the same. 12. In the result, this writ application is partly allowed and the order dated 20.8.2004 (Annexure-1) and the consequential order of recovery passed thereupon are quashed. However, the order to cancel the first lime bound promoton shall remain and consequential recovery on the basis of I such wrong grant of first time bound promolion may be made.