1. The petitioner has challenged the order contained in Memo No. 6829 dated 20th November, 1998 issued by the Joint Director of Industries, Government of Bihar, Patna whereby and whereunder the second time bound promotion earlier granted in her favour has been cancelled from retrospective date after three years of her retirement.
2. The case of petitioner is that she was appointed on 16th June, 1959 as Skilled Artisan (Knitting & Embroidary) in the office of Project Executive Officer, Simdega. Her service was discontinued from 1st May, 1968 to 14th March, 1972. However, in pursuance of office order dated 24th February, 1972 issued by the Additional Director of Industry, Government of Bihar, she was appointed and re-joined in the services of the State. Initially, petitioner was granted 1st time bound promotion w.e.f 10th April, 1981 vide Memo No. 15393 dated 6th October, 1986. It was modified vide Memo No. 6830 dated 20th November, 1998 and the date of time bound promotion was shifted to 15th March, 1982, the day the petitioner completed ten years of service on re-appointment. Subsequently, petitioner was granted second time bound promotion w.e.f 30th April, 1988 vide order No. 423 dated 17th May, 1994 but it was cancelled after three years of petitioner's retirement (retired on 30th October, 1995) vide Memo No. 6830 dated 20th November, 1998 on the ground that it was granted illegally.
3. According to respondents, there being a complete break of service from 1st May, 1968 to 14th March, 197.2 i.e 3 years 10 months and 13 days, the petitioner cannot derive any benefit of time bound promotion on the basis of earlier period. The Finance Department has condoned the breakage of service of petitioner for the purpose of computing promotional benefits except the actual period of retrenchment vide order as contained in Memo No. 4036 dated 4th June, 1992 and 26th May, 1993.
4. The petitioner retired on 30th May, 1995 whereinafter when it was noticed that the petitioner was not entitled for second time bound promotion as per Government circular, it has been cancelled.
5. It is stated that the provisional gratuity, group insurance, G.P.F, leave encashment and provisional pension have been paid to the petitioner.
6. It is true that the petitioner having re-appointed in 1972, was not entitled for second time bound promotion but in the similar case of illegal pro motion in Sahib Ram v. State of Haryana, reported in 1995 Supp (1) SCC 18 : (1995 AIR SCW 1780) in respect to recovery after retirement, the Supreme Court held:
“Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs.”
7. In the aforesaid background, there being no misrepresentation on the part of the petitioner, the respondents are prohibited from making any recovery from the retiral benefits of the petitioner on the ground that she was paid certain amount illegally in pursuance of second time bound promotion.
8. The respondents are directed to finalise the pension and gratuity of petitioner on the basis of the last pay drawn by her and to pay the arrears, within three months from the date of receipt/production of a copy of this order, failing which the respondents will be liable to pay the interest @ 5%.
9. The writ petition stands disposed of, with the aforesaid observations/directions.
10. Order accordingly.