Vijay Kumar Shrivastava vs State Of Bihar Through Principal Secretary And Ors

Heard learned counsel for the petitioner as well as the learned State Counsel.

2 Petitioner has approached this Court seeking a direction for payment of retiral benefits as a Clerk, a Grade III Post.

3 The petitioner was working as a Cook under the respondent-Authorities in the office of the Civil Surgeon -cum-Chief Medical Officer (for brevity, CS -cum- CMO), Sasaram. On 24.11.1979, the petitioner, along with others, was promoted on the post of Clerk, a Grade III post. He continued as such for 27 years. On 31.03.2006, the petitioner, along with others, was reverted to their status as Grade IV employee. The reversion was on account of the fact that the respondent-Authorities were of the opinion that the promotion granted on 24.11.1979 was not in accordance with law.

4 Reversion was assailed by the petitioner in a writ proceeding which was dismissed. Against the dismissal of writ petition bearing CWJC No 5771 of 2006, others, effected by the order of reversion, preferred intra-Court appeal. The LPAs preferred by similarly situated persons were finally decided on 27.04.2010. The order of the learned Single Judge stood modified by the Division Bench. Division Bench had taken note of the fact that during pendency of the proceedings, wherein the reversion was assailed, the Authorities themselves had come out with a Letter dated 08.04.2008 whereby the promotion, earlier granted in 1979, was found to be in consonance of law. Taking note of the contradictory stands in respect of the same promotion/reversion taken by two different communications, the Division Bench did not interfere with the order of reversion and left it open for the State Authorities to take a final decision on the issue. Before parting with the judgment, Division Bench had observed that since benefit of promotion was not based on any fraud or misrepresentation, there would be no recoveries on account of the order of reversion. The petitioner retired on 30.04.2010, three days after the Division Bench had allowed the Letters Patent Appeals with modification. It is, thereafter, that the Authorities, namely, the CS -cum- CMO, Sasaram came out with an order again restoring the promotion granted to those who were sought to be reverted under the order dated 31.03.2006 including the petitioner. It is on account of this order that the petitioner feels aggrieved and has approached this Court. The order issued by the CS -cum- CMO, Sasaram is dated 13.06.2010 bearing Memo No 1486. This Court considers it useful to reproduce the last paragraph of the order which reads as follows:

"यह आदेश वित्तीय मामला में पत्र निर्गत की तिथि से प्रभावी माना जायेगा एवं वेतनादि का लाभ इनके योगदान उपरान्त से हीं देय होगा, साथ ही यह आदेश श्री दिनेश्वर प्रसाद पर निलम्बन से मुक्त होने के पश्चात प्रभावी होगा। श्री विजय कुमार श्रीवास्तव जो दिनांक 30.4.10 को सेवा निवृत, पदावनत पद पर हीं हो गये हैं। अतएव यह आदेश उन पर प्रभावी नहीं होगा। "

5 The CS -cum- CMO has directed that the salary would be payable to the beneficiaries of the order from the date on which they gave their joining. In respect of the petitioner, the effect of his superannuation on 30.04.2010 about one and half months prior to issuance of the order by the CS -cum- CMO, has been made the basis of depriving him financial benefits of the order.

6 The distinction sought to be created by the order of the CS -cum- CMO is not based on any intelligible differentia. The claim, in so far as salary for the promoted post is concerned, would not arise in the case of petitioner since prior to the order of the CS -cum- CMO, he had already superannuated. He had already been paid salary for the higher post up till 31.03.2006, i e, when he was reverted. The claim for higher salary, therefore, cannot be made by the petitioner as the other beneficiaries of the said order are also entitled for the salary for the higher post after they submit their joining before the CS -cum- CMO. Grant of actual payment for the higher post, therefore, in the opinion of this Court, cannot be claimed by the petitioner as he had already superannuated and had not worked on the higher post since 31.03.2006 up till his superannuation on 30.04.2010.

7 Having observed so, this Court would further observe that once the Authorities have realized the mistake, the benefit of the fixation of pension for the higher post and counting of services for the entire period as a Class III employee, cannot be denied to the petitioner. The distinction, sought to be based on the petitioner's retirement is unrealistic and unsustainable in the eyes of law. Once the Authorities have realized their mistake regarding their reversion not being in accordance with law, they are obliged to extend the benefits admissible on account of such mistake or realization of mistake. While extending benefits, they cannot be permitted to arbitrarily deny the same to the petitioner while granting the same to others, who are similarly situated.

8 The order, in so far as it deprives the petitioner to the pensionary benefits as a Class III employee, is unsustainable in the eyes of law. Order dated 13.06.2010, in so far as the petitioner is concerned, stands quashed.

9 The Authorities should count the entire services of the petitioner as having served as a Clerk, a Grade III Post and calculate his last pay drawn accordingly as on 30.04.2010. By such calculation, the pensionary benefits of the petitioner must be determined afresh and consequential benefits accordingly on account of higher pension and arrears difference be paid to the petitioner expeditiously, without any undue delay and preferably within a period of three months from the date of receipt/production of a copy of this order.

10 Writ petition stands allowed.