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2006 DIGILAW 705 (PAT)

Most. Manju Kuanr v. State Of Bihar

2006-08-17

RAMESH KUMAR DATTA

body2006
Judgment 1. The petitioner seeks quashing of the office order dated 20.8.2004 issued by respondent no. 2, Chief Engineer, Water Resources Department, Dehari (Rohtas), by which the promotion and the time bound promotion granted to the petitioner as far back as in the years 1983 and 1989, have been cancelled and recovery has been ordered. 2. The original petitioner was appointed on 30.8.1973 as Work Sarkar in the scale of Rs. 220-315 in the work charged establishment. By office order dated 5.3.1986 he was granted the first time bound promotion on completion of 10 years of service with effect from 30.8.1983. The service of the petitioner was regularised and he was brought into regular establishment with effect from 1.1.1988 and he was made permanent on the said post with effect from the said date, which was subsequently revised with effect from 24.10.1984. After the said regularisation, he was promoted on the sanctioned vacant post of Supervisor Grade II with effect from 14.3.1989 by the Chief Engineer. Thereafter by letters dated 17.5.2003 and 9.6.2003, show cause notice was issued to the petitioner stating that the time bound promotion as well as promotion granted to him to the post of Supervisor Grade-II were irregular and asked him to show cause as to why the same should not be cancelled. After receipt of the show cause, by the impugned order dated 20.8.2004 (Annexure-1) both the first time bound promotion and the regular promotion on the post of Supervisor Grade-ll were cancelled and it was directed that the petitioner would be entitled to first time bound promotion with effect from 27.3.1987 instead of 30.8.1983 and his pay scales were also, accordingly revised on lower scales. It was further ordered to make recovery of the amounts paid to him in excess on account of grant of wrong promotion as well as wrong time bound promotion from the earlier date. 3. It is pointed out by learned counsel for the petitioner on the basis of letter no. 1520 dated 1.10.2005 (Annexure-21) that an amount of Rs. 2,02,567/- is sought to be recovered on the basis of the said cancellation by order as contained in Annexure-1. 4. 3. It is pointed out by learned counsel for the petitioner on the basis of letter no. 1520 dated 1.10.2005 (Annexure-21) that an amount of Rs. 2,02,567/- is sought to be recovered on the basis of the said cancellation by order as contained in Annexure-1. 4. Learned counsel for the petitioner in support of his contention that the time bound promotion was rightly granted to him with effect from 30.8.1983 relies upon the decision of this court in the case of Braj Nandan Kumar Sinha and Others, vs. The State of Bihar and Ors. 1996(2) PLJR 231 and the case of Ram Chandra Pandey & Ors. vs. The State of Bihar & Ors. :1998(1) PLJR 862. In the said case this court has decided that employees of the work charged establishment are entitled to time bound promotion in terms with resolution dated 30.12.1981 on the same terms and conditions of service as provided to temporary Government employees and the respondents were directed to pay the petitioners and other similarly situated persons arrears of salary from the date they were granted time bound promotion i.e., with effect from 1.4.1981 in those cases. 5. Learned counsel for the State was not able to counter the said submissions on the basis of any decision of this court. 6. It is accordingly, held that the authorities were not justified in shifting the first time bound promotion of the petitioner and the petitioner would be entitled to first time bound promotion with effect from 30.8.1983 and all consequential benefits from the said date. 7. With respect to cancellation of promotion, it was submitted by learned counsel for the petitioner that the said promotion had rightly been granted to him in the year 1989 much after he was duly brought into the regular establishment and the reliance by the State authorities upon the letter of the Department dated 17.9.1994 holding that the employees appointed initially in the work charged establishment will only get time bound promotion and not any cadre promotion is totally unjustified since the promotion was granted in the year 1989 and the same cannot be withdrawn retrospectively by an executive order passed in the year 2004. Learned counsel for the petitioner also relied upon a decision of this court in the case of Asharfi Paswan vs. State of Bihar and Ors. Learned counsel for the petitioner also relied upon a decision of this court in the case of Asharfi Paswan vs. State of Bihar and Ors. 2005(4) PLJR 259 in which this court has struck down the order by which upgradation promotion granted to the work charged employees in 1973 was sought to be cancelled after a lapse of 31 years on the ground that the State has failed to show that there is any bar in allowing such upgradation/promotion at the relevant time. 8. In the present case also the State is not in a position to bring to the notice of this court any such policy decision of the Government that no such promotion was due to an employee like the petitioner in work charged establishment in the year 1989 when the promotion was granted. For the said reasons the cancellation of promotion granted to the petitioner cannot be justified and it is directed that the petitioner shall be entitled to the promotion granted to him from the year 1989 itself and all consequential benefits thereupon. 9. In view of the aforesaid facts and circumstances the order dated 20.8.2004 (Annexure-1) is quashed and the authorities are directed to treat the petitioner as having been rightly granted the time bound promotion with effect from 30.8.83 and the regular promotion on the post of Supervisor Grade-II on 14.3.1989 and all consequential benefits thereafter. It is accordingly further directed that all the amounts recovered from the post retirement benefits or from any other source with respect to the deceased original petitioner, Surya Nath Singh, shall be returned to his widow, who has been substituted in his place, along with interest at the rate of 10% per annum from the date the recovery has been made till the date of payment within a period of two months from the date of receipt/production of a copy of this order. 10. The writ application is, accordingly, allowed, but in the facts and circumstances of this case, there shall be no order as to costs.