Patna High Court
Vijay Kumar Prasad vs The State Of Bihar And Ors on 7 May, 2025
Author: P. B. Bajanthri
Bench: P. B. Bajanthri
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1383 of 2017
In
Civil Writ Jurisdiction Case No.14787 of 2014
======================================================
Vijay Kumar Prasad Son of Late Ram Julum Singh, resident of village -
Muroul, PS - Sakra, District - Muzaffarpur
... ... Appellant/s
Versus
1. The State Of Bihar
2. The Director, Primary Education, Govt. of Bihar, Patna.
3. The Accountant General, Bihar, Patna.
4. The Senior Accounts Officer, Office of Accountant General, Bihar, Patna.
5. The District Officer (Collector), Muzaffarpur.
6. The District Programme Officer Sthapana, Education, Muzaffarpur.
7. The Head Master, Govt. of Middle School Etha, Anchal - Muroul,
Muzaffarpur
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr.Ashhar Mustafa, Advocate
Mr. Abu Nasar, Advocate
Mrs. Anita Kumari, Advocate
For the Respondent/s : Mr.Shashi Shekhar Tiwari, AC to Aag-15
For the State : Mr. Dr. Anand Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE S. B. PD. SINGH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)
Date : 07-05-2025
Appellant has assailed the order of the learned
Single Judge dated 04.08.2017 passed in CWJC No. 14787 of
2014. The appellant while working as teacher, he was promoted
to the post of Headmaster on 04.09.2008 in the scale of pay of
Rs. 7,500-12,000/- and he has attained age of superannuation
and retired from the service on 28.02.2010. His retiral benefits
have not been settled with reference to the last pay drawn. His
Patna High Court L.P.A No.1383 of 2017 dt.07-05-2025
2/5
last pay drawn is stated to be a sum of Rs. 27,170/-. On the other
hand, his last pay has been treated as Rs. 25,930/-. The reason
for fixing a sum of Rs. 25,930/- is in the guise of rectification of
his promotion order dated 04.09.2008 to the extent that he was
not due for promotion on 04.09.2008. He is entitled to
promotion only after 12 years of service.
2. Having regard to the fact that he has discharged the
duties of the post of Headmaster and retired as a Headmaster on
28.02.2010
with last pay a sum of Rs. 27,170/-. Bihar Pension
Rules provides for fixation of pension only with reference to last
pay drawn. The last pay drawn of Rs. 27,170/- cannot be altered
to Rs. 25,930/- unless and until promotion order to the post of
Headmaster has been withdrawn or cancelled or modified. In
other words, appellant should have been reverted to the feeder
cadre to the post of Headmaster, those actions have not been
taken. That apart he has discharged the duties of promotional
post. In the absence of such action, the respondents cannot
straightaway fix the last pay drawn as Rs. 25,930/- when he has
drawn a sum of Rs. 27,170/-.
3. Promotion order has attained finality and it has not
been disturbed by the authorities or any other forum. In this
regard, it is necessary to take note of a Court decision in the case
Patna High Court L.P.A No.1383 of 2017 dt.07-05-2025
of Smith vs. East Ellore Rural District Council reported in
1956 AC 736 at 769, Lord Redcliffe observed:
"An order even if not made in good
faith, is still an act capable of legal
consequences. It bears no brand of invalidity
upon its forehead. Unless the necessary
proceedings are taken at law to establish the
cause of invalidity and to get it quashed or
otherwise upset, it will remain as effective for
its ostensible purpose as the most impeccable
of orders."
Prof. Wade Administrative Law 6th Ed. P. 352 (1918-
2004) a great jurist of yester decades goes one step further and
writes:
".....the principle must be
equally true even where the 'brand' of
invalidity' is plainly visible; for there also
the order can effectively be resisted in law
only by obtaining the decision of the
Court... The truth of the matter is that the
Court will invalidate an order only if 'the
right remedy is sought by the right person
in the right proceedings and circumstances.
The order may be hypothetically a nullity,
but the Court may refuse to quash it
because of the plaintiff's lack of standing,
because he does not deserve a discretionary
remedy, because he has waived his rights,
or for some other legal reason. In any such
case the 'void' order remains effective and
is, in reality, valid..."
Patna High Court L.P.A No.1383 of 2017 dt.07-05-2025
This view came to be reiterated by the Apex Court in
Prahlad Raut vs. AIIMS reported in (2021) 14 SCC 472.
4. These crucial materials have not been taken note of
by the learned Single Judge to the extent that appellant has
discharged the duties of the Headmaster post till 28.02.2010 the
date on which he attained the age of superannuation and retired
from service while drawing last pay at Rs. 27,170/-. Bihar
Pension Rules is a statutory provision which provides that
pension is required to be fixed only with reference to last pay
drawn. And so also, there is no withdrawal or reversion to the
feeder cadre to that of Headmaster post, therefore, the learned
Single Judge has committed error in rejecting the appellant's
claim.
5. In the light of these facts and circumstances the
appellant has made out a case to the extent his retiral benefits
and pension is required to be determined with reference to last
pay drawn at Rs. 27,170/-. In this regard, the concerned official-
respondents are hereby directed to take note of the same and
redetermine the retiral benefits and pension with reference to
last pay drawn at Rs. 27,170/- and extend difference of amount
within a period of three months from the date of receipt of this
order.
Patna High Court L.P.A No.1383 of 2017 dt.07-05-2025
6. In this regard, necessary calculation-sheet shall be
prepared and a copy of the same shall be provided to the
petitioner. If this order is not complied by the official-
respondents, appellant is entitled to litigation cost and it is
quantified at Rs. 20,000/-.
7. The order of the learned Single Judge dated
04.08.2017 passed in CWJC No. 14787 of 2014 stands set aside.
Accordingly, the present LPA No. 1383 of 2017 is allowed.
(P. B. Bajanthri, J)
(S. B. Pd. Singh, J)
Ankit Kumar/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 15.05.2025.
Transmission Date
