The entitlement to time-bound promotions and the principles of natural justice are crucial in recovery proceedings involving government employees.

Mihir Kumar Jha, J.

1. Heard Mr.Shivendra Kishore, learned counsel for the petitioner and the counsel for the State as also for the Accountant General.

2. The petitioner in fact assails a communication sent by the Directorate of Statistics and Evaluation, Planning and Development Department, to the Accountant General, Bihar, wherein a sum of Rs. 1,21,517.35 paise was sought to be shown as excess amount paid to the petitioner and hence, deductible from the amount of gratuity payable to the petitioner.

3. The submission of Mr. Shivendra Kishore, learned counsel for the petitioner, is that such an order came as a bolt from the blue to the petitioner, inasmuch as before subjecting to such a huge recovery from the gratuity, the authorities had never given any notice and/or an opportunity to show cause to petitioner against the proposed recovery of a sum of Rs. 1,21,517.35 paise. To that extent learned counsel for the petitioner would rely on the statement made in paragraph 19 of the writ application and would refer to paragraph-17 of the counter affidavit wherein there is no denial to this fact.

4. Counsel for the State, on the other hand, would submit that since the facts are absolutely admitted that the petitioner was initially appointed on the post of Compiler on 26.10.1964 and later on got appointed on the post of Junior Statistical Assistant/Block Statistical Supervisor/ Investigator vide office order No. 679 dated 15.7.1975 in a higher pay scale he was automatically not entitled to get his time bound promotion in terms of the resolution of the Finance Department dated 30.12.1981. He would further submit that even the second time bound promotion of the petitioner was not admissible as in the space of 25 years inasmuch as he had been again promoted vide office order No. 537 dated 26.8.1997. The argument, therefore, of the learned counsel for the State is that if the petitioner was not entitled to earn such time bound promotion, the amount paid to the petitioner being excess payment, the same was definitely recoverable and in this context he has placed reliance on a Division Bench judgment covering exactly the same issue in the case of the Secretary, Department of Planning and Development & Anor. V/s. Awadh Muni Prasad & Anor. disposed of on 7.1.2002 in L.P.A. No. 464 of 2001 (Annexure-B). Learned counsel for the State would further rely on the subsequent judgment of the Full Bench of this Court in the case Ram Binod Singh V/s. The Bihar State Electricity Board & Ors., reported in 2007(3) PLJR 328.

5. in reply Mr. Shivendra Kishore has disputed only two things, namely, the petitioner was never promoted on the post of Junior Statistical Assistant by any office order and that the case with regard to recovery stands settled in the judgment of the Apex Court in the case of Syed Abdul Qadir & Ors. V/s. The State of Bihar & Ors., reported in (2009)3 SCC 475 [: 2009(2) PLJR (SC)74], with specific reference to paragraph 59 thereof.

6. First of all it would be difficult for this Court to sustain the plea of the learned counsel for the petitioner that as a bald and general proposition in law it cannot be held that no recovery can be made from a Government servant even if he has retired. That is not the ratio of even Syed Abdul Qadirs case (supra). Paragraph 39 of the said judgment if read in the context of earlier finding recorded therein would go to show that the Apex Court having come to the conclusion of the facts of that case that the provisions to fundamental Rule 22 was not known to the Finance Department and the authorities had said to have committed mistake in allowing the teachers to draw the benefits of higher pay scale, the Apex Court had in the interest of justice of that case observed in favour of the retired teachers with a consequential direction for no recovery from them. The last sentence of paragraph 39 extending benefit to the non-teachers who were not the petitioners before the Apex Court in those cases cannot