MUMTAZ AHMAD Vs. STATE

JUDGEMENT

(1.) THIS application has been filed for issuance of a writ in the nature of certiorari for quashing the order dated 31.5.2002 (Annexure -5) whereby emoluments paid to the petitioner on account of conditional promotion are sought to be recovered due to his failure to pass the departmental examination. Short facts giving rise to the present application are that the petitioner was working as an Assistant in the Department of Health, Medical Education and Family Welfare. By order dated 3.2.1986 (Annexure -3), he was granted promotion to Junior Selection Grade on completion of ten years of service as an Assistant. While passing the order of promotion, it was made clear that such of the Assistants who do not pass the departmental examination in the ensuing two examinations, shall be reverted to their original post. Petitioner, undisputedly, did not pass the departmental examination but continued to get salary in the Junior Selection Grade till his superannuation on 31.1.2000. It seems that the petitioner was not given his entire retiral dues and hence, preferred C.W.J.C. No. 11633 of 2001 (Md. Mumtaz Ahmad vs. The State of Bihar & Ors.) before this Court. This Court, by order dated 7.9.2001, disposed of the writ application directing that all lawfully payable retiral dues be paid to the petitioner within stipulated time. In the light of the direction of this Court, the case of the petitioner was examined and it was found that his continuance in the Junior Selection Grade till his superannuation without passing the departmental examination, is in the teeth of the conditions laid down in the order of promotion and accordingly, excess amount paid to the petitioner is sought to be recovered by the impugned order.

(2.) MR . Kamla Lal Srivastava, appearing on behalf of the petitioner contends that when the petitioner had been allowed to superannuate from service in the Junior Selection Grade and no order having been passed rescinding his promotion and further, in the absence of any misrepresentation or fraud committed by him, the decision to recover the amount is illegal. In support of his submission, he has placed reliance on a judgment of this Court in the case of Madan Mohan Prasad vs. The Bihar State Electricity Board & Ors. : 2001 (1) PLJR 409 and my attention has been drawn to para -3 of the judgment which reads as follows: -

(3.) HAVING considered the rival contention, f do not find any substance in the submission of Mr. Srivastava and the decision relied on by him is clearly distinguishable. Undisputedly, petitioner was granted Junior Selection Grade on completion of ten years of service with the condition that he has to pass the departmental examination in the ensuing two examinations. Petitioner did not pass the said examination but continued to get the salary in the Junior Selection Grade. After retirement, he filed application for payment of the post retiral dues and when the matter was examined, it was found that the petitioner's continuance in the Junior Selection Grade is in the teeth of the condition laid down in the order of promotion itself. In such a circumstance, recovery cannot be said to be illegal only on the ground that formal order of cancellation was not passed. The view which I have taken finds support from the decision of this Court in the case of Shiv Nath Singh (supra).