Entitlement to exemption from examination due to age and the grant of time bound promotion without specific application for relaxation.

1. Heard learned counsel for the petitioner, learned counsel for the State and learned counsel for the Accountant General.

2. Petitioner was appointed initially in work charged establishment on 18.1.1971 on the post of Pump Operator. Later by order dated 18.8.1984 he was appointed as correspondence clerk in regular establishment and by order dated 20th June, 1996 contained in Annexure-3 he was granted first time bound promotion. Petitioner superannuated from service on 31.10.2003. Petitioner is aggrieved by impugned order contained in Annexure-1 dated 15.3.2004 whereby the Accountant General, Bihar has informed the concerned Executive Engineer, Public Health Engineering Division, Darbhanga that since the petitioner was allowed time bound promotion w.e.f. 15.12.1994 without having cleared the accounts examination as required by Government Circulars and policy decision, his time bound promotion could not be given legal validity. Accordingly, petitioners pension and gratuity were determined ignoring the benefit given to the petitioner on the basis of time bound promotion w.e.f. 15.12.1994.

3. On behalf of petitioner it has been submitted that petitioner was granted time bound promotion while he was in service without any misrepresentation or suppression of fact by the petitioner and therefore benefits of such promotion cannot be denied to the petitioner specially when he has availed such benefit for long years and has superannuated from service. Next it has been contended that when the office of Accountant General raised such an objection and returned the pension papers, the authorities of State Government requested the Accountant General, Bihar through letter dated 29.1.2004 (Annexure-7) to consider the case of the petitioner sympathetically for determining his pension. In that letter it has been mentioned by the concerned Executive Engineer that petitioner had taken the examination on two occasions without success but thereafter he crossed the age of 50 years and also became a heart patient and hence he could not take further examination. On these facts it has been submitted that a notification of the State Government dated 9.11.1983 providing exemption from such examination to employees attaining the age of 50 years would be applicable as held by this Court in the case of Paras Nath Mishra vs. The State of Bihar, reported in 2000(3) PLJR 690. Lastly it was submitted on behalf of the petitioner that a Division Bench of this Court in the case of B.S.R.T.C. vs. Yasoda Devi, reported in 1998(3) PLJR 331 held that a promotion granted in the year 1987 and revoked in the year 1994 when the employee was not guilty of suppression or fraud was impermissible on account of lapse of long period.

4. Considering all the facts and circumstances, it is found that petitioner was entitled for consideration for exemption from taking the required examination on account of having crossed 50 years of age and since the concerned authorities granted him time bound promotion without asking him to make specific application for relaxation or condonation, it should be deemed that the concerned authorities granted the required relaxation/exemption from taking the departmental examination. It is further found that petitioner not being guilty of any misrepresentation or fraud cannot be deprived of the benefit of such promotion after long number of years when he has superannuated from service. Accordingly, the relevant part of decision contained in Annexure-1 affecting the pension of the petitioner adversely is quashed and the Accountant General, Bihar is directed to redetermine the pension and gratuity of the petitioner without ignoring the time bound promotion granted to him by the State of Bihar w.e.f. 15.12.1994.

5. The writ petition is allowed to the aforesaid extent.