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CASE TITTLE: BIKRAMA SINGH And Others V THE STATE OF BIHAR  And Others

CASE NO: Civil Writ Jurisdiction Case No.3455 of 2012

ORDER ON:16-04-2024

QUORUM: JUSTICE RAJESH KUMAR VERMA

FACTS OF THE CASE:

The present writ application has been filed for Quashing the order dated 26.12.2011 Under the signature of the Chief Engineer, Central Design and Research, Water Resources Department, Govt. Of Bihar,The facts leading to the present petition in question is that, The petitioners were initially appointed as Correspondence clerk in the Irrigation Department. Pursuant to the Recommendation of the IVth Pay Revision Committee,issued by the Finance Department, Govt. Of Bihar by which the time bound Promotion scheme was introduced. Thereafter, the State Govt. Issued an order making certain amendments for grant of time bound promotion. By this Amendment. It provides That promotion in the selection made shall be made by passing The accounts examination by a clerk. Clause 9 of the amended Rules provides that the passing Of accounts examination was made a condition precedent for Time bound as well as selection grade promotion, Only change brought about by This Resolution was that the promotion under the senior Selection grade scale is to be granted on completion of 12 years Of service but the earlier structure of junior selection grade scale Remained the same.Again the pay scale at the pattern of Central Pay Scale was revised by the State Govt. issued by the Finance Department, Govt. Of Bihar. By this resolution, the Govt. Has Decided that until and unless the new policy decision is Determined by the Govt., the promotion of the employees who Are in the scale of junior selection grade/senior selection Grade/super time selection grade shall be made against need Based post. the petitioner No.1 has been granted Promotion in the Junior Selection Grade and Senior Selection Grade Scale and he has also been Granted the revised Pay Scale in light of Finance Department Resolution.Petitioner No.2 was granted Junior Selection Grade Scale and Senor Selection Grade Scale by office order and he has been granted promotion as Head Clerk.The petitioner No.1 has already passed the accounts Examination  and the petitioner No.2 also and the case of the petitioners and others in the Central Design Organization was considered by the Chief Engineer and at the time of consideration, there were only three Posts of Head Assistant the Department has granted promotion On the first post to one Raj Ballabh Ram against the need based Post of Head Clerk and against the post of Head Assistant Earlier one Jawahar Lal has filed writ application claiming Therein that he was senior to the petitioner No.1 on the basis of Date of appointment in service cadre and accordingly he was Promoted to the post of Head Clerk but he has been reverted to The post of clerk. The Hon’ble Court  has directed the Chief Engineer to consider the grievance of the petitioner, the case of Jawahar Lal Was considered by the Department and he was placed just above The petitioner No.1 and due to that third post of Head Assistant On which the petitioner No.1 was promoted earlier was occupied By Jawahar Lal then the petitioner No.1 has filed a Representation before the Chief Engineer stating therein that he Has been granted promotion as Head Assistant in light of the Clarification made by the Finance Department, Govt. Of Bihar And he has requested that he should be promoted as Head Assistant.Thereafter, one Ram Shankar Singh has also filed a Writ application with a prayer That the petitioner No.1 is junior to him and he has been granted promotion as Head Clerk from 01.01.1996 so Ram Shankar Singh may also be granted the promotion as Head Clerk this Hon’ble Court has directed the Chief Engineer to consider the request of the petitioner (Ram Shankar Singh) in accordance with law and. By the impugned order as contained the date of promotion of the petitioner No.1 has been shifted from  as Head Clerk and petitioner No.2 as Head Clerk and Sri Jawahar Lal has been promoted as Head Clerk hence this petition.

CONTENTIONS OF PETITIONER:

The counsel for the petitioner submits that before issuing the present impugned order no notice to show cause or opportunity of hearing was given to the petitioners and present impugned order has been passed is in clear violation of principle of natural justice, equity and fair play. In the aforesaid, the scale of the petitioner has been enhanced not on account of any misrepresentation made on behalf of the petitioner. Further, The learned counsel for the petitioner has relied upon the judgment of the Hon’ble Apex Court in the case of State of Punjab Vs. Rafiq Masih reported in AIR 2015,Further the counsel contented that  petitioner No.1 has been retired from the service w.e.f. 31.01.2010 and petitioner No.2 has also been retired from the service on 31.03.2008 and the order impugned was passed after the retirement of the petitioners i.e. on 26.12.2011.

CONTENTIONS OF THE RESPONDENT:

The Learned counsel for therespondent submits that earlier the seniority of clerk cadre was maintained by the Parent Department i.e. Water Resources Department, Govt. of Bihar, Patna later on it is directed to maintain seniority of Muffasil Cadre maintenance on the basis of their respective first joining in this case and as per direction, the first provisional gradation list was notified for the muffasil cadre by inviting representation against any discrepancies. Petitioner No.1 was given Jr. Selection Grade and Sr. Selection Crade on the basis of passing the Accounts Examination .the counsel further contended that  By order of the Finance Department the compulsion of passing the accounts examination was relaxed to those employee who have been promoted or their promotion due before 01.09.1983. Some of the employees moved before this Hon’ble Court by which they were challenged their position in gradation list and effective date of marking for Head Clerk and Head Assistant. Both the writ petitioners were heard and respective order was passed by this Hon’ble Court and thereafter the respondents were taken steps and the whole case to gradation list prepared  was deeply reviewed in the light of their 1st joining in the cadre as per direction of aforesaid respective orders, by which the compulsion of passing the accounts examination was relaxed to the employee who has been promoted or their promotion due before 01.09.1983. After review the whole matter the entire previous gradation list was rearranged by canceling all previous orders issued vide different letters and dates, the petitioner No.1 was placed on gradation 43(ka) and marked for head clerk and the petitioner No.2 was placed on Gradation 22 and marked for Head Clerk Learned counsel for the State submits that the petitioners filed a fresh writ petition bearing for quashing the Office order and the same was disposed of  with the certain direction, The answering respondents fixed the date for hearing and also the Department informed to the petitioners to ensure their presence on fixed date. Learned counsel for the State submits that the respondents after considering all facts, the Chief Engineer, Central Design and Research, Water Resources Department, Govt. of Bihar, Patna passed a reasoned order after clarifying all the points which is impugned in the present writ petition and observed that the office order will be effects and the counsel further contended that there is no illegalities or irregularities in the present case.

COURTS ANALYSIS AND JUDGEMENT:

The Court Having heard the parties and have gone through the material available on the record,finds that the respondents have not levelled any allegation against the petitioners herein that they have misrepresented or committed fraud for the purpose of wrong fixation of pay, grant of grand pay, in fact the respondents have conceded that wrong pay fixation was done on account of their mistake and according to the principle of law settled in the case of State of Punjab Vs. Rafiq Masih (Supra) no recovery can be affected from the petitioners , the court further observed that, since they have already attained the age of superannuation prior to passing of the order recovery and secondly since there have been no misrepresentation or fraud committed by the petitioners leading to wrong pay fixation/wrong grant of grade pay though the respondent authorities are precluded from making any recovery from the petitioners. This Court further is of the view that the present case of squarely covered by the judgment rendered in the case of State of Punjab Vs. Rafiq Masih (Supra) especially since the petitioners have already superannuated and secondly it is mistake of the respondents admittedly, which is excess payment to the petitioners herein on account of wrong fixation of pay. Court opined it  is left with no option in the facts and circumstances of the present case but to quash the order dated 26.12.2011 and directed the respondent authorities to act accordingly and pay all the consequential benefits to the petitioners within a period of eight weeks from the date of receipt/production of a copy of this order. Accordingly, this writ application is allowed.

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Judgement reviewed by: Sowmya.R

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