ORDER
1. Heard the parties.
2. In this writ application the petitioner’s prayers are four fold :
(a) For quashing the office order No. 128, dated 30.4.2001 (Annexure-13).
(b) For quashing the office order No. 37/2001, dated 2.6.2001 (Annexure-13/1).
(c) For directing to the respondents to fix the pay of the petitioner in the next higher scale of pay w.e.f. 2.5.1996 correcting the wrongly mentioned date of promotion to Senior Selection Grade.
(d) For directing the respondents not to recover the amounts paid as annual increments to the petitioner on the plea that the annual increments were not payable before passing Hindu Noting and Drafting Examination.
3. The petitioner prayed for addition of one more prayer by an amendment petition, when during the pendency of this application, a sum of Rs. 10,260/- was deducted from the petitioner’s salary without assigning any reasons, which was allowed by this Court.
4. The petitioner’s case is that he joined the service of the Bihar State Electricity Board on the post of Junior Accounts Clerk/Bill clerk on 6.5.1968. The petitioner passed the departmental examinations and on that basis was given promotion to the post of Accounts Assistant w.e.f 2.5.1980. The Financial Controller by his Memo No. 721, dated 2.7.1990 (Annexure-2) provisionally promoted the petitioner to the post of Accounts Assistant. In the said order, the date of promotion of the petitioner was wrongly shown as 1.12.1980 instead of 2.5.1980. The petitioner thereafter immediately objected to the same by filing a representation. The Financial Controller then issued an order dated 1.9.1990 modifying para 9 of the order dated 2.7.1990. It was clarified in the said order that the regular promotion given in the decentralized cadre before issuance of the revised S.A.S. Cadre Rules shall continue to be operative until further order and that para 9 of the Board’s Order No. 3166, dated 2.7.1990 stood modified to that extent. According to the petitioner, on that basis, he was allowed to draw next higher scale of pay after completion of 10 years of his service w.e.f. 2.5.1990, by order as contained in Annexure-5. The same was also informed by the Electrical Executive Engineer vide his letter dated 11.9.1990 as contained in Annexure-6. However, by another office order No. 212, dated 30.8.1990, the Electrical Executive Engineer again erroneously fixed the pay of the petitioner on 1.12.1980 after the provisional promotion to the post of Accounts Assistant. In view of the order dated 2.7.1990 (Annexure-2) notwithstanding the earlier clarification and modification by order dated 1.9.1990 (Annexure-3), the petitioner again’ made representation, which was forwarded by the Electrical Superintending Engineer to the then Financial Controller. The Board issued a modified order dated 1.9.1990 allowing the promotion given by it to remain operative and the petitioner was allowed to avail selecting grade scale w.e.f. 2.5.1990 by (Annexure-11). The pay of the petitioner was fixed w.e.f. 2.5.1990. Again by the impugned order dated 30.4.2001 and 2.6.2001 the petitioner was informed that he has been allowed Super Selection Grade after completion of 18 years of continuous service on the same post w.e.f. 1.12.1998. The petitioner’s grievance is that, he has completed 18 years of service on 2.5.1998 and he is entitled to get Super Selection Grade w.e.f. 2.5.1998 and not from 1.12.1998. The shifting of the date to 1.12.1988 is wholly illegal and the orders Annexure-13 & 13/1 are liable to be quashed.
5. The further grievance of the petitioner is the wrong fixation of his pay w.e.f 15.4.1995 and deduction of the amount of increment paid to him for the year 1979 to 1984 alleging that he was not entitled to get the annual increment before the petitioner passed the Hindi Noting and Drafting Examination on 15.4.1984. According to the petitioner, annual increments for the year beginning 1.7.1980, 1.7.1981, 1.7.1982 and 1.7.1983 were paid to him by the respondents without any demur. According to the petitioner, the said annual increments were paid to him by the respondents and there was no misrepresentation by him and such the said amount cannot be recovered or deducted from the petitioner’s salary and the order as contained in Annexure-16 is wholly illegal and arbitrary and the same is liable to be quashed.
6. The petitioner also complained that during the pendency of this writ application a sum of Rs. 10,260/- has been illegally deducted from his salary @ 3,420/-per moth from April to June, 2003 without even informing the petitioner. According to the petitioner the deduction from his salary without even communicating the reasons is wholly, arbitrary and illegal and the petitioner is entitled to get refund of the said illegally deducted sum of Rs. 10,260/-. It has been informed that the petitioner has already retired on 30.6.2003, during the pendency of this writ petition.
7. A counter-affidavit has been filed on behalf of the respondents. There is no parawise reply to the statements made in the writ petition. It has been stated that the writ petition is not maintainable and the prayers made by the petitioner are misconceived and not sustainable in law as well as on the facts and that there is no illegality in the impugned order. The office order dated 2.7.1990 was modified by the letter No. 951, dated 1.9.1990 issued by the Financial Controller and the petitioner has been allowed Super Selection Grade w.e.f. 1.12.1998 and accordingly his pay has been fixed and there is nothing wrong in the said fixation. It has been stated that the petitioner passed the Hindi Noting and Drafting Examination held on 15.4.1984 and on that basis, the annual increment given to the petitioner from 16.7.1979 to 15.4.1984 is to be recovered, as the petitioner passed the Hindi Noting and Drafting Examination on 15.4.1984 and before that date he was not entitled to the increment.
8. Mr. Atanu Banerjee, learned counsel appearing on behalf of the petitioner submitted that there is no specific reply to the material statements made in writ application supported by the various documents of the respondents. The petitioner was given promotion to the post of Accounts Assistant w.e.f. 2.5.1980 and he is entitled to the further promotion on that basis. Any change in the date of promotion and that mentioned in the impugned orders i.e. dated 1.12.1998 is without any basis and the order as contained in Annexures-13 and 13/1 are arbitrary and unsustainable in law. Learned counsel further submitted that shifting of the date to the disadvantage of the petitioner cannot be made unless he is informed of the reason and given opportunity of hearing/representation. The Board having accepted the date of promotion to the post of Accounts Assistant as 2.5.1980, his date cannot be shifted forgiving him Super Selection Grade from 2.5.1998 to 1.12.1998. Learned counsel for the petitioner further submitted that so far as the payment of annual increments for the year 1980 to 1984 are concerned, the same were paid by the respondents without any misrepresentation or fault of the petitioner. The petitioner also passed Hindi Noting and Drafting Examination in the year 1984 and in that view the amounts which were paid to him cannot be recovered and as such the order as contained in Annexure-16 is wholly unsustainable and is liable to be quashed. Learned counsel relied on the decision of the Supreme Court in Bihar State Electricity Board and Anr. v. Bijay Bhadur and Anr., . He submitted that having passed the Hindi Noting and Drafting Examination in 1984 he is entitled to get the increment with all the arrears in support of the said contention. Learned counsel for the petitioner cited a decision of this Court rendered in Tilak Dhari Sharma v. Bihar State Electricity Board and Ors., reported in 2001 (3) JCR 77 as also in the case of Baidhyanath Prasad Singh v. Jharkhand State Electricity Board and Ors., reported in 2003 (3) JCR 144. Learned counsel thus contended that if the employee passes the said examination, he becomes entitled to all consequential benefits including the arrears of the increments.
9. Mr. R. Krishna, learned counsel appearing on behalf of the respondents, on the other hand, contested the petitioner’s claim. According to him order of the petitioner’s promotion was cancelled by the office order dated 2.7.1990 as contained in Annexure-2 and the said order was not modified by Annexure-4. According to Mr. Krishna, the promotion given to the petitioner ceased to any effect after the issuance of order as contained in Annexure-2 and the letter of the Financial Controller as contained in Annexure-4 and his promotion is covered by Annexure- 2. Learned counsel further submitted that one or the other wrong order issued by the officers of the Board is not binding on the Board and accordingly the subsequent order contrary to the order dated 2.7.1990 as contained in Annexure-2 being without any authority or power is not binding on the Board. Learned counsel, however, admitted that the subsequent orders have not been disputed by making any categorical statement in the counter- affidavit. In view of the order as contained in Annexure-2, regarding the deduction of the amount paid towards the annual increment of the petitioner from 1979 to 1984, learned counsel for the JSEB submitted that the same was contrary to Rule 7 of the Bihar Govt. Service (Hindi Examination) Regulation, 1968 which has been made applicable to the Board’s employee. According to him regulations 7 & 8 of the said regulations clearly provides that the Govt. servant who have not passed Hindi in Debnagri or Hindi Noting and Drafting Examination in Debnagri script or both the examinations, should be neither given annual increments nor should they be allowed to cross the efficiency bar till such time and the Govt. employee after passing the required examination or examinations, shall draw pay from the following year of that last examination at which he appeared and passed. No arrears of the stopped increments shall be paid. Learned counsel for the JSEB further submitted that in that view since the relevant time the petitioner had not passed the Hindi Noting and Drafting Examination he was not entitled to get increment and as such the unauthorized payments towards his annual increments or any pay is recoverable and in that view Anneuxre-16 cannot be said to be illegal. Learned counsel for the JSEB fortified his contention by citing a decision State of Jharkhand and Ors. v. Smt. Girish Kumari Prasad and Ors., reported in 2004 (2) JLJR 426.
10. Having heard the learned counsel for the parties as perused the relevant records, I find that by Anneuxre-1, the petitioner was given promotion to the post of Accounts Assistant/Bill Clerk w.e.f. 2.5.1980. Subsequently by order dated 1.12.1980 as contained in Annexure-2 the petitioner was given promotion to the post of Accounts Assistant w.e.f. 1.12.1980 along with several others as contained in Clause 9 of the said letter (Annexure-2). It was mentioned that promotion given by the respondents are cancelled after the regularization of the said order. Subsequently by an office order No. 951, dated 1.9.1990 issued under the signature of Financial Controller Department of Personnel wherein it was clarified that the regular promotion given by different cadre authorities in the decentralized cadre i.e. before issuing revised S.A.S. Cadre Rules vide Board’s notification No. 529, dated 17.6.1968 shall continue to be operative until further order. Para 9 of Board’s office order No. 3166, dated 2.7.1990 (Annexure-2) stands modified to that extent. Subsequently in accordance with the said date of promotion the petitioner was allowed selection grade on the basis of the said date w.e.f. 2.5.1990. Further by Annexure-11, copy of the periodical increment certificate, the date of periodical increment shown as on 2.5.1998 and 2.5.1999, I find substance in the petitioner’s claim that for the purpose of granting him selection grade date cannot be shifted from 2.5.1998 to 1.12.1998. The date of fixing the said Super Selection Grade w.e.f. 1.12.1998 is thus without any foundation and the same is wholly arbitrary and no reasons has been assigned for shifting the said date either in the said letters or even earlier. No opportunity was given to the petitioner before shifting the date to his disadvantage. Sudden and surprising shifting of date of promotion of the petitioner without even informing and giving him any opportunity of hearing is not permissible in law and the same is violative of principle of natural justice and Article 14 of the Constitution of India. The order as contained in An-nexures-13 & 13/1 cannot be thus upheld, so far as the deduction as contained in Annexure-16 is concerned the petitioner has rightly claimed that the annual increments for the years 1980, 1981, 1983 & 1984 were paid to him by the respondents and there was no misrepresentation on the part of the petitioner is getting the said increments. The petitioner having subsequently passed the required Hindi Noting and Drafting Examination in the year 1984, becomes entitled to the annual increments. However, as the same has already been paid to the petitioner, the same cannot be recovered or deducted from his salary in view of the decision of the Apex Court in Bijay Bhadur (supra). The claim of the petitioner is further supported by the decision of this Court in Tilak Dhari Sharma case (supra) as also rendered by this Court in Baidhyanath Prasad Singh (supra). It has been clearly held that once the employee passed the required Hindi Noting and Drafting Examination he becomes entitled to get increments with arrears and also to all consequential benefits including the arrears of increments. In that view the orders dated 14.2.2000 issued by the Electrical Executive Engineer as contained in Annexure-16 cannot sustain and the same is also liable to the quashed. The sum of Rs. 10,260/-has been deducted from the petitioners salary without informing any reason just before his retirement. There is nothing on the record to legally support the said deduction. In view of the above discussion, the order as contained in Annexures-13 & 13/1 as also contained Annexure-16 to the writ petition are quashed. The respondents are directed to refund the said amount of Rs. 10,260/-, deducted from the salary of the petitioner. The respondents are further directed to correct the date of the petitioner’s promotion to the Super Selection Grade and shift the same to 2.5.1998 and to accordingly pay all consequential benefits to the petitioner within a period of two months from the date of receipt/ production of this order, failing which the petitioner shall be further entitled to get compensatory interest @ 10% per annum till the actual payment.
This writ petition is thus allowed. There shall be no order as to costs.