GANESH JHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE grievance of the writ petitioner is with regard to the fixation of his pension amount and the order regarding recovery of excess amount drawn by the petitioner in respect of the illegal grant of first and second time bound promotions to the petitioner which he was not entitled to and has not been passed after the final accounts examination and also with regard to recovery of two accounts regarding price of furniture and the alleged illegal travelling allowance drawn by the petitioner.

(2.) THE petitioner was the clerk in the Animal Husbandry Department of the State Government. He retired on superannuation on 31.1.1998 from the office of the Sub -Divisional Animal Husbandry, Patna City. He joined in the service as clerk on 25.6.1962 and he was granted first time bound promotion vide order dated 15.7.1987 (Annexure -2) with effect from 1.4.1981. Then he was given second time bound promotion vide order dated 20.7.1987 i.e. just after five days of the earlier preliminary order vide Annexure -3 with effect from 25.6.1987 and, according to the petitioner after receipt of second time bound promotion he was receiving pay of Rs. 2,420/ - at the time of his retirement. As the service book of the petitioner was not available after retirement except the G.P. F. amount and the group insurance amount, no other retirement benefits were paid nor his pension was fixed. The petitioner came up before this Court in C.W.J.C. no. 9566 of 1998. The same was disposed of vide Annexure -7 by order dated 19.5.1999 on an undertaking being given by the petitioner to place the service book by bringing it from his previous posting station Jhanjharpur directing the respondents - authorities to fix up and sanction the retirement dues which was due to the petitioner and also with regard to fixation of pension amount. After disposal of that writ petition the petitioner produced his service book and vide Annexure -8 order was passed by the respondent -authorities showing the fixation of pension amount of the petitioner at a lower rate holding that the time bound promotions given to the petitioner were illegal and the amounts received by the petitioner in excess during the period of his service were ordered to be recovered from his, gratuity amount. Further order of recovery was made with regard to loss of furniture and withdrawal of excess travelling allowance. According to the petitioner, although in his representation he had stated that the furniture had never been lost at his instance and he was not responsible for it and a report was given to that effect but still then without holding any enquiry and giving any opportunity to the petitioner such deduction had been made. The same is the plea with regard to excess withdrawal of travelling allowance amount. Regarding illegal grant of two time bound promotions to the petitioner, it is submitted that such time bound promotions were granted to the petitioner without having been given in misrepresentation by the petitioner. It is known to the department that he had only passed the preliminary examination of accounts and not the final examination but still then he was granted two time bound promotions and hence when that matter had reached its finality i.e. superannuation, the same cannot be agitated after completion of service by the petitioner faithfully and satisfactorily without any misrepresentation and, as such, fixation of pay to the petitioner deducting the amounts of two time bound promotions is illegal and inoperative. His further contention is that there is no scope as per law to get the amount deducted from gratuity.

(3.) THE first point regarding illegal grant of time bound promotion to the petitioner vide annexures -2 and 3 has been challenged on the ground that such stagnation benefits had been given to the petitioner during the course of his service without having been any misrepresentation or fraud or trick being played from the side of the petitioner. By an administrative order in C.S. no. 30 dated 29.3.1982 in respect of Rule 157(3) J in Bihar Boards Miscellaneous Rules, 1958 it was held that such time bound promotion cannot be given to the officials without having been passed the final examination of accounts. Admittedly, when the time bound promotions were given to the petitioner it was within the knowledge of the authorities that he had not passed the final examination of accounts but only qualified himself regarding the preliminary examination. The time bound promotion had been given to the petitioner vide Annexure -1 on 15.7.1987 with effect from 1.4.1981 and the second time bound promotion was given vide order dated 20.7.1987 with effect from 25.6.1987. The administrative order by subscribing modification in the Bihar Boards Miscellaneous Rules were in question in very many cases before this Court. In the case of Mohammed Shamsuddin and Ors. V/s. State of Bihar & Ors., as reported in 1983 PLJR 347 it was held that such administrative order has got no legal validity. But then the matter was considered in a Division Bench in another case and ultimately the matter had been referred to a Full Bench and the same has been disposed in C.W.J.C. no. 2995 of 1990 and other allied writ petitions to that effect as reported in 2000 (4) PLJR 262 (Maheshwar Prasad Singh & Ors. V/s. The State of Bihar and Ors.). The Full Bench held that such administrative order passed on 29.3.1982 has got validity as an administrative instruction can subscribe the main rules and the matter to resolve any controversy but then it was held that such order cannot have any retrospective effect. At least any order passed in between the period 1.5.1980 to 29.3.1982 shall have the validity in view of the fact that the administrative order in C.S. 30 dated 29.3.1982 had no retrospective effect. While coming to such decision the Full Bench had considered all aspects of the matter and also the judgment of the Apex Court as reported in AIR 1967 (SC) 1910 (Sant Ram Sharma V/s. State of Rajasthan and Ors.) and AIR 1972 (SC) 995 (Lalit Mohan Deb and Ors. V/s. Union of India and Ors.). In the present case, the first time bound promotion was given with effect from 1.4.1981 although the order passed on 20.7.1987 while the administrative instruction had already been tnere and after the first time bound promotion was granted then automatically on the basis of that the second time bound promotion was granted with effect from 25.6.1987. The effect of the first time bound promotion is saved from cancellation on the basis of the Full Bench judgment as mentioned above and then automatically the second time bound promotion also remains as a basis for first time bound promotion in passing of the examination of accounts. Moreover, it remains the admitted position that no suppression of fact was there from the side of the petitioner nor any misrepresentation had been filed by him while time bound promotion were given to him. Long after when the petitioner has already been superannuated then and then only, when the fixation is to be made for the purpose of calculations, this order has been made that time bound promotions were illegally granted to the petitioner. When no misrepresentation is there and when the time bound promotions were given to the petitioner and is saved from cancellation on the administrative order, passed, as mentioned above, by the State Government then the order of withdrawal of time bound promotions given to the petitioner remains unsustainable in law and hence the order passed for withdrawal of time bound promotions to the petitioner is hereby negatived and for the purpose of pension, the petitioner 'spay should be construed as the last pay received by him to the tune of Rs. 2,420/ -. The respondents authorities are hereby asked to calculate the final pension on the basis of last pay drawn by the petitioner at the time of his retirement i.e. on 31.1.1998.