Awadh Muni Prasad vs The State of Bihar & Ors

Heard learned counsel for the petitioner and Accountant General. Nobody appears on behalf of the State.

The petitioner has moved the Court for the following

reliefs:

“That, this is an application for issuance of appropriate writ(s), order(s) and direction(s) commanding the Respondent to fix pension at Rs. 4707/-

w.e.f. 1/2/1998 on the basis of last paid drawn by the petitioner, modifying the pension which is being paid wrongly, arbitrarily illegally at 4159/- by

quashing memo no. 2134 dated 21/11/2005 and memo No. 134 dated 11/1/2007 passed by the Respondents which is bad in eye of law and has no legal

legs to stand, with benefits of commutation of pension with statutory interest, thereof, awarded by the Hon’ble Court, as per norms and Rules.â€​

The petitioner has been approaching the Court time and again. Initially, in C.W.J.C. No. 8599 of 1999, he came against withholding of 10% of his

pension and 25% of his gratuity, which was disposed off with a direction to the authorities to pay him the remaining amount. The same was assailed

by the authorities in L.P.A. No. 464 of 2001 and by order dated 07.01.2002 the authorities were directed to take fresh decision in the matter as to

whether Time Bound Promotions or regular promotion granted to the petitioner was valid. Thereafter, the authorities decided the matter and held that

the petitioner having been granted regular promotion, not being entitled to Time Bound Promotions, the same was withdrawn and it was directed to

adjust the excess amount which was paid to the petitioner on account of Time Bound Promotions. When, as a consequence, the pension of the

petitioner was reduced from Rs. 4707/- to Rs. 4159/-, his representation to the authorities to restore the same having been rejected, he again moved

the Court in C.W.J.C. No. 5276 of 2004. In the said writ petition, the Court by order dated 14.03.2005, directed the authorities to consider afresh as to

whether any recovery has been made from the petitioner from the post of Junior Statistical Assistant (Supervisor) and as to whether the recovered

amount has been refunded to the petitioner after holding him disentitled for Time Bound Promotions; the authorities having considered the matter, have

passed a detailed order on 21.11.2005, which is impugned in the present writ application. The same has also been affirmed by the Secretary of the

Department by order dated 11.01.2007, which is also under challenge in the present writ application.

Learned counsel for the petitioner submitted that once the authorities have recovered the benefit of regular promotion, he is entitled to his Time

Bound Promotions being retained and in terms thereof, his pension fixed on the basis of the Time Bound Promotions being Rs. 4707/-, the same cannot

be revised treating such promotions to be bad and re-fix the pension in terms of regular promotion granted to him which came to Rs. 4159/-. Learned

counsel submitted that when in the year 1996 itself, the recovery of the benefit of regular promotion amounting to Rs. 5791/- has been made, the

authorities not having recovered the excess amount paid to the petitioner in terms of his Time Bound Promotions, they are precluded from cancelling

the Time Bound Promotions and upholding the regular promotion to the petitioner. Learned counsel submitted that though separate petitions were filed

before the Director as well as the Secretary, they have decided the matter against the petitioner dehors the factual or legal aspects.

Though, nobody has appeared on behalf of the State but from the materials on record, the Court finds no merit in the present writ application.

Whatever had happened prior to 2001, when a Division Bench of this Court by order dated 07.01.2002 in L.P.A. No. 464 of 2001, had given the

authorities liberty to take a fresh decision in the matter as to whether Time Bound Promotions or regular promotion granted to the petitioner was valid,

any event which may have occurred prior to that date gets washed away and the issue is revived leaving it open to the authorities to take a fresh

view. In terms thereof, the authorities have taken a decision that the petitioner having been granted regular promotion, was not entitled to Time Bound

Promotions and accordingly, the same have been withdrawn with a further direction to recover the excess amount which he had drawn pursuant to

such Time Bound Promotions. The Court would pause here. With regard to the validity of such decision, the Court finds that the authorities have taken

a right view in law for the reason that once the regular promotion is prior in time to the first Time Bound Promotion, the earlier regular promotion has

to be considered to be valid if not otherwise held to be impermissible or wrongly given. In the present case, once there is no dispute that the regular

promotion was in accordance with law, the same has to be considered to be a valid one and, thus, the petitioner had forfeited his right to be considered

for Time Bound Promotion. Moreover, by order dated 07.01.2002 in L.P.A. No. 464 of 2001, when the Court had given liberty to the authorities to

consider the matter afresh, such liberty not having been assailed or interfered with and having attained finality, the authorities having taken a view, the

petitioner cannot argue the matter with regard to what had happened prior to the order passed by the Court dated 07.01.2002 in L.P.A. No. 464 of

2001. Even with regard to the stand taken by learned counsel for the petitioner that once in the year 1996, they had recovered Rs. 5791/- on account

of the benefit granted to the petitioner in terms of his regular promotion, the benefit given to him under the Time Bound Promotions not being

recovered, his Time Bound Promotions be upheld, is totally erroneous and misconceived. Even if on facts, the Court accepts that in terms of his Time

Bound Promotions being withdrawn, the recoverable amount was Rs. 43606.45/-, whereas with regard to the benefit which he got under regular

promotion being Rs. 5791/-, which was recovered, it would be an absurd proposition in law if it is held that because the authorities should have

deducted a bigger amount, they are estopped from implementing the order which they have passed i.e., upholding the regular promotion and denying

the Time Bound Promotions, which too, in terms of the liberty given to them by order dated 07.01.2002 in L.P.A. No. 464 of 2001. As per the own

showing of the petitioner, even if it is accepted that Rs. 5791/- was adjusted/recovered in the year 1996, when the liberty was by order dated

07.01.2002 in L.P.A. No. 464 of 2001, to re-decide the issue and the authorities having done so, the recoverable amount, after adjusting the amount

which had already been recovered, which came to Rs. 37815.45/-, still remaining outstanding would not lead to a conclusion in law that because

recovery has not been made from the petitioner of the entire amount, the Time Bound Promotions have to be given effect and the regular promotion

has to be deemed to have been withdrawn, there cannot be such contorted view or assumption in the facts and circumstances of the present case.

Even later on by order dated 14.03.2005 in C.W.J.C. No. 5276 of 2004, it is clear that the Court, from the tenor of the discussions in the order, has

made it clear that if upon denial of Time Bound Promotions and upholding of regular promotion, the petitioner is entitled to get refund, the same was

required to be adjusted. The following portion of the order dated 14.03.2005 in C.W.J.C. No. 5276 of 2004 being relevant is quoted hereinbelow:

“ In this view of the matter, it would not be appropriate for this Court to issue any positive direction to the authorities and the matter requires fresh

consideration by the authorities as to whether any recovery has been made from the petitioner from the post of Junior Statistical Assistant

(Supervisor) and as to whether the recovered amount has been refunded to the petitioner after holding him disentitled for time bound promotions.

The authorities concerned, in that view of the matter, are directed to decide these questions after affording an opportunity of hearing to the petitioner

within a period of thee months from the

date of receipt/production of a copy of this order.â€​

From the aforesaid, it is clear that the Court had observed that the authorities were required to consider afresh as to whether any recovery had

been made from the petitioner from the post of Junior Statistical Assistant (Supervisor) and as to whether the recovered amount was refunded to the

petitioner after holding him disentitled for Time Bound Promotions. In the present case, when the amount recoverable is far more from the amount

which has to be adjusted/refunded, more specifically the recoverable amount being Rs. 43606.45/- whereas the amount, even if earlier adjusted being

Rs. 5791/-, there is no question of any refund and rather it would be a case of further recovery of the remaining amount of Rs.37815.45/-. Further, the

Court would refer to the order dated 31.10.2002 in C.W.J.C. No. 9895 of 2002, in terms whereof, no further recovery had been made. Thus, the

petitioner cannot now claim the benefit that as recovery has not been made of the benefits from his Time Bound Promotions and only recovery has

been made with regard to his regular promotion, which was very less than the amount which was paid to him under the Time Bound Promotions, such

argument does not hold any water for the reason that the authorities would obviously have recovered the amount had it not been for the intervention of

the Court prohibiting the same. Thus, no advantage can be derived from such conduct of the respondents which was not in terms of what they had

ordered or what was their intention with regard to the order they had passed, which itself was in terms of the liberty given to them by order dated

07.01.2002 in L.P.A. No. 464 of 2001. Thus, the petitioner having retained the benefit of Time Bound Promotions which was prohibited from being

recovered under the order of the Court would not give scope to the petitioner to claim that because the recovery has not been made from him of the

benefit given under the Time Bound Promotions, he shall be entitled to retain the benefit of Time Bound Promotions and not the regular promotion.

In any view of the matter, the Court finds that the issue with regard to the decision taken by the authorities to hold that the Time Bound Promotions

were not permissible in view of the regular promotion granted to the petitioner which was prior in time and also such decision being taken in terms of

the liberty given by the Court by order dated 07.01.2002 in L.P.A. No. 464 of 2001, the authorities have rightly re-fixed the pension of the petitioner to

what he would be entitled in law. The Court finds no error in such refixation of the pension.

Accordingly, the writ petition stands dismissed.