Yoga Nand Mishra vs The State of Bihar (Now Jharkhand) and Others

Vikramaditya Prasad, J.—This writ has been filed for quashing Annexure 8 by which time bound promotion granted to the petitioner with effect from 1.4.1981 was cancelled on the ground that the petitioner was given that promotion without his having passed the accounts examination and further the excess payment was directed to be recovered from him. Secondly by the said order the petitioner was reverted back to the post of Store-clerk.

The petitioner was appointed as Store-clerk and subsequently by order dated 30.1.1982, Annexure 2. The service of the petitioner was made permanent on the post of Store-keeper.

It appears that earlier also the petitioner had moved the Patna High Court against the cancellation of his time bound promotion and that order was set aside in CWJC No. 7125 of 1997, Annexure 6 and the Chief Engineer was directed to dispose of the representation of the petitioner keeping in view the observation made by the Court and consequent thereto the impugned order has been passed.

During the course of argument the learned counsel for the petitioner relied on a decision of the Patna High Court reported in 1996 (1) PLJR 750 , besides relying one decision of the apex Court reported in Narender Chadha and Others Vs. Union of India and Others, and T. Shantharam Vs. State of Karnataka and Others, The learned single Judge of this Court has held that the promotion given 15 years back cannot be cancelled on the ground of non- passing of the accounts examination, in view of the fact that the petitioner had functioned in that capacity and even retired. In the instant case the petitioner had not retired when the impugned order had been passed. The promotion Was given with effect from 1.4.1981 by order dated 30.6.1986 which was recalled by Annexure 8 on 11.5.2000 i.e. after 14 years of the promotion granted to the petitioner. Thus the petitioner has functioned on that post of Store-keeper after being promoted on 30.6.1986 with effect from 1.4.1981. Therefore, the petitioner is deemed to have functioned on that post for more than 20 years, and that order was recalled.

Learned counsel for the respondents argued that the impugned order is just on the ground that the petitioner had not passed account examination. The facts of this case is similar to the facts of that case relied upon by the petitioner because the petitioner of that case had also not passed the account examination and the Court after taking into consideration the fact that passing of the account examination was not a condition precedent and also considering the fact that the petitioner had worked for 15 years on the promoted post, held that the promotion granted to him could not be recalled. Consequently relying on that judgment, the impugned order is quashed. So far the second question whether the petitioner could have been reverted to the post of Store-clerk or not is concerned, I find that as per Annexure 2 the petitioner was confirmed on the post of Store- keeper, therefore, the question of his reverting back to the post of Store-clerk does not arise so that part of impugned order is also quashed. It is not required to be stated that this order will be given obvious consequences.

The writ is allowed at the stage of admission itself.