Vinod Kumar Sinha vs The State Of Bihar And Ors
2023 Latest Caselaw 5338 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                 Civil Writ Jurisdiction Case No.7276 of 2016
     ======================================================

Vinod Kumar Sinha son of Late Parmeshwar Dayal, resident of village- Manpur, P.O. Paroha, P.S. Manpur, District- Nalanda Retired Assistant in the office of Commissioner, Bhagalpur, at present residing in the House of Sheonandan Prasad, Rental Flat No. 512, Kankarbagh, Patna 800 020, District- Patna

... ... Petitioner/s Versus

1. The State Of Bihar through the Chief Secretary, Government of Bihar, Patna.

2. The Chief Secretary, State of Bihar, Patna

3. Principal Secretary, General Administration Department, Government of Bihar, Patna

4. Commissioner, Bhagalpur Division, Bhagalpur

5. Secretary, Information and Public Relations Department, Government of Bihar, Patna

6. Under Secretary, General Administrative Department, Govt. of Bihar, Patna

7. Director, Information and Public Relations Department, Government of Bihar, Patna

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Upendra Prasad, Adv.

Mr.Veena Kumari Jaiswal, Adv.

For the Respondent/s : Mr. Swapnil Kumar Singh, AC to GP-19 ====================================================== CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH ORAL JUDGMENT Date : 13-10-2023

The present writ petition has been filed for quashing the

letter dated 14.7.2014, issued by the Secretary to the

Commissioner, Bhagalpur Division, Bhagalpur, as also the order

dated 10.4.2013, passed by the Director, Information & Public Patna High Court CWJC No.7276 of 2016 dt.13-10-2023

Relations Department, Government of Bihar, Patna, i.e. the

Respondent No. 7, whereby and whereunder it has been held

that since the petitioner has not passed the departmental

examination, he would not be entitled to 1st time bound

promotion and accordingly, a sum of Rs. 99,150/- has been

sought to be recovered.

2. The learned counsel for the petitioner has submitted that

the petitioner has passed the departmental exam in the year,

2007 and 2008.

3. Per contra, the learned counsel for the Respondent-State

has submitted that since the petitioner has not passed the

departmental examination in time, he was wrongly granted the

benefits of the 1st time bound promotion, hence, the same has

been withdrawn.

4. This Court finds that the law regarding the issue under

consideration is no longer rest integra, inasmuch as a learned

Division Bench of this Court in the case of the State of Bihar &

Ors. vs. Ram Subhag Singh (LPA No. 4 of 2021), by a

judgment dated 11.5.2022, has held that non passing of

departmental examination shall not be an impediment to grant

of the benefits of time bound promotions / ACP /MACP. In fact,

this aspect of the matter has also been decided by a judgment, Patna High Court CWJC No.7276 of 2016 dt.13-10-2023

rendered by this Hon'ble Court in the case of State of Bihar &

Ors. vs. Anjani Kumar, reported in 2013 (2) PLJR 643, which

has also been upheld by the Hon'ble Apex Court, by an order

dated 10.3.2014, passed in SLP (C) No. 19182 of 2013. In a

recent judgment, rendered by the Hon'ble Apex Court in the

case of Amresh Kumar Singh & Ors. vs. the State of Bihar &

Ors., reported in 2023 (2) PLJR (SC) 423, it has been held that

extending the benefit of ACP, which is purely and simply in the

nature of grant of monetary benefit without actually effectuating

any promotion to any higher post, cannot be withheld for not

possessing additional educational qualification. In fact, in yet

another judgment, rendered by the Hon'ble Apex Court in the

case of State of Punjab & Others. vs. Rafiq Masih & Others,

reported in (2015) 4 SCC 334, the Hon'ble Apex Court has held

that after retirement, no recovery can be made from an

employee, in case there is no misrepresentation on his part,

which is the case of the petitioner in the present matter.

5. Having regard to the facts and circumstances of the case

and for the reasons mentioned herein-above, this Court finds

that the impugned orders dated 14.7.2014 and the one dated

10.4.2013, passed by the Respondent No. 7 are perverse and

contrary to the law laid down by the Hon'ble Apex Court as also Patna High Court CWJC No.7276 of 2016 dt.13-10-2023

by the learned Division Bench of this Court, hence, are quashed.

The respondents are directed to refund the amount of recovery

made from the petitioner within a period of four weeks from

today.

6. The writ petition stands allowed.

(Mohit Kumar Shah, J) Ajay/-

AFR/NAFR                AFR
CAV DATE                NA
Uploading Date          16.10.2023
Transmission Date       NA