STATE OF TRIPURA Vs. MAHANDA PAUL

JUDGEMENT

(1.) This second appeal, under Section 100 of the Code of Civil Procedure, is directed against judgment & decree, dated 30.9.2002 and 19.11.2002 respectively, passed by learned Additional District Judge, Kailash-ahar, North Tripuura in Title Appeal No.22/1999.

(2.) The fact, in short, necessary for disposal of this appeal, is that the respondent, as plaintiff, instituted Title Suit No.3/1998 in the Court of Civil- Judge, Senior Division, Kailashahar, North Tripura, inter alia stating that he was appointed to the post of Physical Instructor, Grade-II vide Memorandum No.F.1(1-9)-DSE/82 dated 25.02.1983, issued by the defdt. No.4 and accordingly, he joined the post and performed his duty with all sincerity and devotion. He was promoted to the post of Physical Instructor, Grade-I vide Memo No.F.1(1-9)/DSE/82, dated 31.12.1984 and he served the department in the promotional post with all sincerity, devotion and to the satisfaction of the authority. He was drawing the pay scale time to time, as admissible to the post, from the date of promotion. In the first part of January, 1998, he received Memo No.F(1 )/YAS-KCP/1997/826-27, dated 29.12.1997 and Memo No.F.1 (1 )/YAS-KCP/831 -832, dated 09.01.1998, issued by defdt. No.1 informing him that his promotion to the post of Physical Instructor, Grade-I was wrong and, therefore, his pay was refixed for the period from 01.01.1985 to 31.12.1997 and an amount Rs.59,646.00 (Rupees fifty nine thousand six hundred and forty six) only was overdrawn by him and it was directed to recover that amount from him. He made representation against the aforesaid orders but while did not get any redress, he issued notice under Section 80 of CPC and, thereafter, filed the suit in the Court of Civil Judge, Senior Division, Kailashahar, challenging those memos and prayed for setting aside and quashing those impugned Memos., dated 29.12.1997 and 09.01.1998.

(3.) The defdts.(appellants) contested the suit by filing written statement inter alia stating that the plaintiff was appointed to the post of Physical Instructor, Grade-II, on 25.2.1983 and he was not eligible and/or due to be promoted to the post of Physical Instructor Grade-I. Due to some bonafide mistake, he was promoted to the post of Physical Instructor, Grade-I, on 01.01.1985 and such promotion was contrary to the Service Rules and therefore, it was liable to be rectified. It was further stated that since the plaintiff was not eligible for promotion, the department corrected the wrong by cancelling the wrong promotion order and directed recovery of the amount drawn by him.