CHANDRA SHEKHAR UPADHAYA Vs. STATE OF BIHAR

JUDGEMENT

(1.) PETITIONER entered service under the department of PWD as an orderly peon, that was on 4.8.1961. Subsequently on a post having fallen vacant, he was appointed as a correspondence clerk on 6.8.1979. After completion of 10 years of service on the post of correspondence clerk petitioner was granted first time bound promotion w.e.f. 6.8.1989. He superannuated on attaining the age of 58 years, as it then was, on 31.10.2000.

(2.) SUBSEQUENTLY the department forwarded the service record of the petitioner for settlement of final pension. The Accountant General vide communication contained in annexure -5 raised an objection that since the petitioner had not passed the departmental examination, therefore in terms of the circular of the State Government he cannot be given the benefit of first time bound promotion w.e.f. 6.8.1989. Matter was sent back for clarification of the concerned department. On 16.7.2001 an office order No. 137 came to be issued where the Executive Engineer, Bridge Design Division No. 4, Advance Planning PWD issued the order withdrawing the first time bound promotion to the petitioner and also ordering deduction of Rs. 75225/ - as excess payment under the head. This has brought the petitioner to this Court and the present writ application has been filed challenging the two decisions. Prima facie the objection raised by the Accountant General contained in annexure -5 does not seem to be misplaced but there are circulars of the State Government where exemptions are granted or is available to the employees. These are matters which are to be decided at the level of the competent authority, more so when it is not disputed by the petitioner that he has not passed the said departmental examination during the period of service.

(3.) LEARNED counsel for the petitioner has tried to rely on a decision rendered in the case of Lala Devendra Prasad V/s. State of Bihar, 2000 (1) PLJR 228 where a question with regard to linking of the passing of the departmental examination and grant of time bound promotion has been questioned. The Court in the said decision was of the opinion that on the basis of the so -called rule which was an old rule passing of the examination was not a must.