JUDGMENT
1. This appeal has been preferred by Mineral Area Development Authority, Dhanbad (M.A.D.A. in short) against the judgment passed by the learned single Judge on 23.9.1997 in CWJC No. 3337 of 1996(R), whereby and whereunder the learned single Judge held the reversion of the respondent, Daroga Prasad Sinha, writ petitioner to the original post of junior pump driver unjust, arbitrary and mala fide.
2. As this appeal can be disposed of on short point, it is not necessary to discuss all the facts except the relevant admitted facts. The respondent-writ petitioner, Daroga Prasad Sinha, was initially appointed as junior pump driver under the appellant, MADA, in the year 1974. Subsequently he was appointed to the next higher post of patrolling inspector by order No. 189 dated 15.4.1976, issued by the Engineer, Jharia Water Board, Dhanbad in anticipation of sanction by the competent authority. He thereafter was transferred as patrolling inspector from one place to other and was also paid salary of the post of patrolling inspector for the period from 15.4.1976 to 1.7.1977. Thereafter the respondent-appellant did not choose to pay the salary in the scale of patrolling inspector but paid the salary of the next lower post of junior pump driver to which the respondent-writ petitioner, Daroga Prasad Sinha, was initially appointed.
3. The respondent-writ petitioner however worked as patrolling inspector. In pursuance of the order dated 14.9.1992, he was reverted to the post of junior pump driver. The claim of the respondent-writ petitioner was that in pursuance of an order of S.D.O. dated 16.8.1993, he was also looking after the work of higher post of patrolling inspector in addition to his own post until further order. Subsequently by order dated 15.7.1994, the respondent-writ petitioner was made incharge of the higher post of foreman which had fallen vacant due. to superannuation of one Balram Mahto.
4. The Secretary of the appellant MADA issued one order on 5.1.1996, whereby, the respondent-writ petitioner was reverted to the post of junior pump driver. The respondent-writ petitioner being aggrieved challenged the said order in CWJC No. 3337/96 (R) with further prayer to issue an appropriate order directing the appellant-respondent to confirm him on the post of foreman/patrolling inspector. The said writ petition having been allowed by the impugned judgment dated 23.9.1997. This appeal has been preferred by MADA.
5. The learned senior counsel for the appellants has submitted that the post of patrolling inspector to which the respondent-writ petitioner was appointed/promoted vide order dated 15.4.1976 was approved for the period upto 30.6.1977. Subsequently no approval was granted, in absence of an approval post of patrolling inspector the respondent-writ petitioner was not paid salary of the post of patrolling inspector since 1.7.1977. He was paid salary of the lower post of junior pump driver which he accepted without any objection.
6. It was further submitted that the writ petitioner actually performed the duty of patrolling inspector for the period from 15.4.1976 to 1.7.1977 it has been admitted by him as evident from his representation dated 15.4.1976, Annexure 2 to the writ petition.
7. From the fact as brought on record as also admitted by the respondent-writ petitioner, it will be evident that the post of patrolling inspector against which the respondent-writ petitioner was appointed on 15.4.1976 was created subject to sanction by the appropriate authority. It is not in dispute that the said post of patrolling inspector against which writ petitioner was working, was not sanctioned since 1.7.1977.
8. In the aforesaid background the respondent-writ petitioner having stood reverted to the substantive post of junior pump driver w.e.f. 1.7.1977 and the order of reversion issued on 5.1.1996 by the Secretary, MADA, Dhanbad, can be construed to be a declaration of such reversion in absence of a post of patrolling inspector.
9. The learned single Judge failed to take into consideration the aforesaid aspect that in absence of a post, the writ petitioner can not claim to have worked as patrolling inspector nor can be paid salary against an unsanctioned post. In this background we have no other option but to set aside the order of the learned single Judge and to allow this appeal.
10. As per interim order passed in this appeal dated 4.5.1998, the appellants having succeeded in this appeal, the respondent-writ petitioner will refund the excess salary, if paid to him, with 12% interest. It is also open to the appellants to deduct such amount in instalments, if excess amount has been paid.
11. This letters patent appeal is, accordingly, allowed. However, there shall be
no order as to costs.