Suresh Choudhary vs The State of Bihar and Others

Shiva Kirti Singh, J.—This writ application under Articles 226 and 227 of the Constitution of India has been filed by a retired Assistant Clerk in Water Resources Department, Government of Bihar. The prayer is to direct the Respondents to determine his pension and pay the same on the basis of last pay drawn by the Petitioner before his retirement and subsequently through an amendment petition the Petitioner has prayed for quashing of orders contained in annexures-4, 5, 6 and 7.

The dispute in this case is on account of the fact that Petitioner was given his first time bound promotion through annexure-1 dated 28.8.89 with effect from 29.5.83 and the said order have been confirmed vide annexure-2 dated 7.12.93 when the Petitioner had already retired from the service on 31.3.92. Yet by the impugned order dated 8.4.96 contained in annexure-4 the Petitioner''s first time bound promotion with effect from 29.5.83 has been cancelled with retrospective effect. Annexure-5 is only a copy of annexure-4 communicated to the Petitioner. By annexure- 6 the Accountant General, Bihar fixed the pension of the Petitioner at a lower scale than what the Petitioner should have got on the basis of his actual pay at the time of retirement and annexure-7 contains another order dated 12.9.96 directing for deduction of Rs. 90,937.60 from the pension and retirement benefits of the Petitioner.

Learned Counsel on behalf of the Petitioner submitted that the impugned orders seeking to cancel the promotion given by annexure-1 and confirmed by annexure-2 are illegal for the reasons that the Petitioner never committed any misrepresentation and the provision for passing the Hindi Noting and Drafting Examination could be relaxed by the Respondents and in any case, even if the order was passed on account of mistake by the authorities, they could not have cancelled the same with retrospective effect and could not have penalised the Petitioner by ordering for recovery from his pension. In support of this proposition, he has placed reliance upon a Division Bench judgment of this Court in the case of The Bihar State Road Transport Corporation Vs. Yasoda Devi and Others, .

Learned Counsel for the Petitioner has further submitted that the impugned action visits the Petitioner with civil consequences which are adverse to him and hence such actions could not have been taken without affording adequate opportunity of hearing to the Petitioner. According to him no opportunity of hearing was given to the Petitioner before passing the impugned orders and hence the same are bad in law on account of violation of natural justice. In support of this proposition, he has placed reliance upon a judgment of the Apex Court in the case of Bhagwan Shukla Vs. Union of India and others, .

Learned Counsel for the State submitted that a perusal of promotion order contained in annexure-1 would show that in 1989 itself it was indicated in the order that in case the time bound promotion is found to be wrong then excess payment may be realised from the Petitioner. No doubt such a stipulation is contained in annexure-1 but subsequently that order of promotion was confirmed by a specific order contained in annexure-2 passed on 7.12.93 and in that order it is mentioned that after enquiry the first time bound promotion granted to the Petitioner has been found correct and hence the same was being confirmed. Thus in view of annexure-2 the aforesaid submission of learned Counsel for the State has to be rejected.

On the other hand the submission advanced on behalf of the Petitioner is well supported by the judgments of this Court and the Apex Court as relied by him and hence this writ application has to be allowed. The impugned orders whereby the promotion granted to the Petitioner by annexures-1 and 2 have been cancelled and order for deduction of excess payment has been passed are accordingly quashed. Any deduction made in pursuance of annexure-7 will be paid back to the Petitioner within a period of three months from the date of communication/production of a copy of this order. The pension of the Petitioner should also be accordingly fixed in the appropriate scale ignoring the impugned orders which have been quashed and a decision in that regard should also be passed within the aforesaid period of three months.

The writ application is thus allowed but there shall be no order as to costs.