- (1.) We have heard Shri K. K. Venugopal, learned Senior Counsel for the petitioner under the "Supreme Court Senior Advocates Free Legal Aid Scheme" and Shri B. B. Singh, learned counsel for the State of Bihar.
(2.) The petitioner - Shri Nalini Kant Sinha - retired from service as Deputy Secretary to the Government of Bihar upon attaining the age of superannuation on 31 - 1- 1979. It was his case that he should have been considered for promotion to the post of Joint Secretary with effect from 31-12-1975 upon his completion of two years service as Deputy Secretary, or, at any rate, on 14-4-1976 when one of his juniors, Shri Ashutosh Chakraborty was so promoted. It is not disputed that Shri Ashutosh Chakraborthy was a junior and had been so promoted on 14-4-1976. Shri Ashutosh Chakraborthy was paid salary in the higher cadre of Joint Secretary from 14-4-1976 onwards. It is only on 22-4-1988 that the Government of Bihar bestirred itself to correct the position so far as the petitioner was concerned which also considered cases of some others as well - and made an order in terms following: "No. 2615. Shri Nalini Kant Sinha, Deputy Secretary, Finance Department, is appointed to non-cadre post of Joint Secretary from 14-4-1976 to 31-1-1979 (up to date of retirement) by being given paper promotion. The aforesaid officers will not be entitled, in accordance with R. 58 of the Bihar Service Code and Rule 74 of the Bihar Financial Rules, to pay during the period of promotion because they had not performed the work of post of Joint Secretary during the aforesaid period, but the benefit of counting pay for pension will be admissible to them."
(3.) The case of the respondent-State is that statutory rules do not permit the payment of the difference of salary in such cases on retrospective notional promotion. Explaining the circumstances under which the said Shri Ashutosh Chakraborthy was paid, it was stated, that the payment was the result of a mistake and that, having regard to the circumstances of the case, the Government did not initiate proceedings for the recovery of the amount.;