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2008 DIGILAW 24 (PAT)

Shri Raghubar Dayal Singh v. State Of Bihar

2008-01-07

KISHORE K.MANDAL, S.K.KATRIAR

body2008
Judgment S.K.Katriar and Kishore K.Mandal JJ. 1. This appeal under Clause 10 of the Letters Patent of the Patna High Court is with respect to the order dated 29.4.1999, passed in C.W.J.C. No. 9338 of 1998 (Raghubar Dayal Singh V/s. The State of Bihar and Others), whereby the learned Single Judge has allowed the writ petition in part. 2. A brief history of facts is essential to dispose of this appeal. By order dated 30.1.1967 (Annexure-1 herein),the writ-petitioner (appellant herein) was appointed on a purely provisional basis as a Treasure Guard. He functioned as such for a little more than five years, whereafter he was promoted to a Class-Ill post, vide Order No. 2762, dated 8.8.1972 (Annexure-2 herein). The same, inter alia, stipulated that the appellant shall be liable to be reverted to his previous post under the circumstances indicated therein. The appellant was promoted to the level of Upper Division Clerk with effect from 1.4.1979, vide order dated 29.4.1986 (Annexure-1 to the writ petition). He was given the first time-bound promotion with effect from 9.8.1982, vide order dated 24.9.1986 (Annexure-2 to the writ petition). He was visited by the order dated 9.5.1998 (Annexure-5 to the writ petition), whereby grant of first time-bound promotion to him was recalled, and equally his promotion to Upper Division Clerk was also recalled, leading to the present writ petition. The learned Single Judge held that the writ petitioner-appellant was not entitled to the benefit of first time-bound promotion because he had, prior thereto, been granted two promotions. He also held that the writ petitioner was liable to refund the excess money drawn by him consequent upon the grant of the benefit of the first time-bound promotion. In so far as the second aspect of the matter is concerned, the learned Single Judge upheld the promotion of the writ-petitioner to Upper Division Clerk and set aside that part of the impugned order. Hence this appeal. 3. Learned counsel for the appellant raises a grievance before this Court that the writ petitioners appointment to Class-Ill post was direct recruitment, and was not a case of promotion. The contention is stated only to be rejected. Hence this appeal. 3. Learned counsel for the appellant raises a grievance before this Court that the writ petitioners appointment to Class-Ill post was direct recruitment, and was not a case of promotion. The contention is stated only to be rejected. On a plain reading of the order giving him the promotion, the order of promotion (Annexure-2) describes him as a Treasure Guard and also incorporates the following clause: "Local Language" If it were a case of direct recruitment to Class-Ill, it would not have mentioned the petitioners previous designation, nor would be the question of his reversion arisen in the circumstances indicated therein. Furthermore, no material other than the order of promotion has been placed before us to take a different view. The contention is rejected. 4 Learned counsel for the petitioner further submits that even if it were held that he was promoted from his previous post of Treasure Guard to Class-Ill, the recovery part of the impugned order should not be upheld, inter alia, for the reason that he superannuated from the services of the Bihar Government with effect from 28.2.1999, during the pendency of the writ petition. It is not possible to accede to the submission. The petitioner was granted the benefit of the first time-bound promotion with the clear stipulation that the same was liable to be recalled if the Finance Department of the Bihar Government did not grant approval to the same or that any error was found in the order. The Finance Department refused to grant approval to the same. The impugned action is supported by a Division Bench judgment of this Court Bihar State Electricity Board and Others V/s. Madan Mohan Prasad & Others, 2001 2 PLJR 58 : (2001)2 B.LJ.R. 920 . The appellant therein was similarly granted the money benefit subject to the approval of the headquarters or superior authority, or if any other defect was found in the order. The superiors refused to grant approval and consequently grant of the money benefit was withdrawn leading to the writ petition and the appeal. The Division Bench held that a money benefit can be withdrawn at any stage, if the order granting the same stipulated that it can be withdrawn if approval was not granted. The superiors refused to grant approval and consequently grant of the money benefit was withdrawn leading to the writ petition and the appeal. The Division Bench held that a money benefit can be withdrawn at any stage, if the order granting the same stipulated that it can be withdrawn if approval was not granted. The same was upheld by a Full Bench of this Court, Ram Binod Singh V/s. The Bihar State Electricity Board and Others, 2007 3 PLJR 398 . 5. In the result, we do not find any merit in this appeal and is accordingly dismissed.