Feeling aggrieved by the judgment and order dated 25th October 2010 passed by the learned single Judge in C.W.J.C. No. 4369 of 2010, the respondents-State of Bihar and its officials have preferred this Appeal under Clause 10 of the Letters Patent.

2. The respondent-writ petitioner joined the service as a Tracer (Blue Print) in 1979. By order dated 30th December 1981, he was promoted as Correspondence Clerk effective from 1st September 1981. By order dated 13th November 1998 made by the Chief Engineer, Patna, the respondent-writ petitioner was extended the benefit of time bound promotion in the pay-scale of Rs.1400-2300 effective from 1st September 1991 (on completion of ten years’ service as Correspondence Clerk). The said order was made subject to approval of the competent authority. The order further specified that in the event the said order was not approved by the competent authority within three months, the said order would stand automatically cancelled. Thereafter, the writ petitioner would not be entitled to the benefit of the time bound promotion. It is not in dispute that the said order of promotion was never approved by the competent authority; may be, it was not sent for approval by the competent authority. Nevertheless, the writ petitioner continued to receive the benefit of the said time bound promotion. Since the said order dated 13th November 1998, the writ petitioner passed the Departmental Accounts Examination in 2007 (hereinafter referred to as “the Accounts examination”). On reaching the age of superannuation he retired from service on 31st May 2009.

3. While processing the pension papers of the writ petitioner, the Accountant General, Bihar, under his communication dated 24th October 2008, raised objection in respect of the time bound promotion granted to the writ petitioner on the premise that the writ petitioner had not passed the Accounts examination. The Accountant General revised the pay-scale and the pay of the writ petitioner since 1st September 1991 till 31st August 2008 and held that a sum of Rs.91,840.00 was paid to the writ petitioner in excess of his due salary.

4. Pursuant to the said objection, the State Government, under its order dated 16th September 2009, cancelled the above referred time bound promotion granted to the writ petitioner with effect from 1st September 1991 and directed to recover the amount paid in excess of the due salary. Pursuant to the said order, by order dated 5th October 2009, a sum of Rs.1,84,201.00 was ordered to be recovered from the writ petitioner.

5. Feeling aggrieved, the writ petitioner filed above C.W.J.C. No. 4369 of 2010 under Article 226 of the Constitution. The writ petitioner challenged the above referred order dated 16th September 2009 on the ground that the same was made at the behest of the Accountant General and that the writ petitioner was not afforded opportunity of hearing. The writ petitioner also asserted that since his promotion to the higher grade effective from 1st September 1991, he has passed the requisite Accounts examination in 2007.

6. The petition was contested by the State Government. According to the State Government, passing of the Accounts examination was a condition precedent for promotion to a higher grade or post. The writ petitioner having not passed the said examination was not entitled to the promotion nor was the promotion order forwarded to the competent authority for approval. The State Government also indicated that the writ petitioner being the Correspondence Clerk, the papers were in his custody and it was his duty to forward the papers to the competent authority for approval.

7. The learned single Judge has allowed the writ petition. Learned single Judge was pleased to hold that the order impugned could not be explained by the averments made in the counter affidavit. The learned single Judge has held that the writ petitioner having passed the Accounts examination in 2007; the order made in 2009 was on non-est ground. Fee