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 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of Rs. 27,170/- cannot be altered to Rs. 25,930/- unless and until promotion order to the post of Headmaster has been withdrawn or cancelled or modified.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 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 6^th 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