D.N.PATEL, J. - (1.) THE present petition has been preferred mainly challenging the order at Annexure 2 to the memo of petition, passed by Respondent No. 2 dated 15th January, 2009, whereby, both the benefits under Assured Career Progression Scheme, which were given to the Petitioner on 9th April, 1983 as well as on 9th August, 1999, have been ordered to be withdrawn and the monetary benefits, which have been given to the Petitioner, have been ordered to be refunded to the State. This order is under challenge in this writ petition mainly on the ground that Respondent No. 2 has not properly appreciated the Government 'scircular, which is at Annexure 5 to the supplementary affidavit, filed by the Petitioner or which is at Annexure C to the counter affidavit. This circular, which is dated 12th August, 1992, issued by the Finance Department, specifies that the benefit of Assured Career Progression Scheme, which was given to those Clerks prior to 1st September, 1983, cannot be withdrawn, on the ground that they have not cleared requisite examination. It is also mentioned in Clause 4(i) of the said circular that once the 1st Assured Career Progression cannot be withdrawn, then subsequent benefits of Assured Career Progression should be given to such Clerks.
(2.) LEARNED Counsel for the Petitioner has relied upon Clause 4(i) of the aforesaid circular and has submitted that the benefit, which was given to the Petitioner i.e. 1st time bound promotion on 9th April, 1983 cannot be withdrawn by the order dated 15th January, 2009 after lapse of approximately twenty five years. Similarly, the benefit of 2nd Assured Career Progression, which was given to the Petitioner on 9th August, 1999, also cannot be withdrawn after a period of ten years and that too after retirement of the present Petitioner. Moreover, no opportunity of being heard was given to the Petitioner before passing the order at Annexure 2 to the memo of petition. Had an opportunity of being heard been given to the Petitioner, the aforesaid circular would have been brought to the notice of the Respondents. There is no allegation that the Petitioner by playing fraud has received the benefits of 1st time bound promotion and 2nd time bound promotion and, as such, the benefits which have already been given in the year, 1983 and in the year, 1999 cannot be withdrawn in the year, 2009 and hence the order at Annexure 2 to the memo of petition deserves to be quashed and set aside. Learned Counsel for the Respondent -State submitted that the Petitioner had not cleared the necessary departmental examination and, therefore, the order at Annexure 2 has been passed by Respondent No. 2 and wrongly the Petitioner was given the befits of 1st as well as 2nd Assured Career Progression and once the Petitioner is not entitled to these benefits, the amount received under these benefits ought to be returned to the State Government and, therefore, there is no illegality committed by Respondent No. 2 while passing the order at Annexure 2 to the memo of petition and, thus, the writ petition deserves to be dismissed.
(3.) HAVING heard learned Counsel for both the sides and looking to the facts and circumstances of the case, I hereby quash and set aside the order, passed by Respondent No. 2 dated 15th January, 2009 at Annexure 2 to the memo of petition, mainly for the following facts and reasons: (i) The Petitioner had joined the services of the Respondents in the year, 1973 and, thereafter, he was given 1st time bound promotion on 9th April, 1983. There is no allegation against the Petitioner that this benefit was given to the Petitioner by playing fraud or misrepresentation by the Petitioner. The Petitioner has worked honestly, sincerely, diligently and to the satisfaction of the Respondents, as a Clerk. (ii) It further appears from the facts of the case that the Petitioner was given 2nd time bound promotions on 9th August, 1999. Both the time bound promotions were given to the Petitioner upon completion of certain years of service and thereafter, the Petitioner has retired from service on 31st January, 2008 as a Clerk. (iii) It appears that on 15th January, 2009 Respondent No. 2 has passed an order, withdrawing the already granted benefits of 1st time bound promotion, which was given to the Petitioner on 9th April, 1983, as well as 2nd time bound promotion, which was given on 9th August, 1999. The benefit which was given in the year, 1983 has been withdrawn in the year, 2009 i.e. approximately after twenty five years ' period. It also appears from the facts of the case that before passing the impugned order at Annexure 2 to the memo of petition, never any show cause notice was given to the Petitioner nor any opportunity of being heard was given to the Petitioner and, thus, there is violation of the principles of natural justice. (iv) It appears from the Clause 4(i) of the circular, which is at Annexure 5 to the memo of supplementary affidavit, filed by the Petitioner, or at Annexure C to the counter affidavit, issued by the Finance Department dated 12th August, 1992, that if any Clerk is given time bound promotion prior to 1st September, 1983, then this benefit cannot be withdrawn, on the ground that the concerned employee has not cleared the requisite departmental examination. This aspect of the matter has not been properly appreciated by Respondent No. 2, while passing the impugned order at Annexure 2 to the memo of petition. Moreover, once the 1st time bound promotion is given to an incumbent prior to 1st September, 1983, 2nd time bound promotion also cannot be withdrawn for that very reason. Thus, Clause 4(i) of the said circular does not allow the Respondents to withdraw either 1st time bound promotion or 2nd time bound promotion, given to the Petitioner. (v) Moreover, the order has been passed by Respondent No. 2 dated 15th January, 2009 at Annexure 2 to the memo of petition, after retirement of the present Petitioner. The Petitioner has retired on 31st January, 2008. Never any allegation has been made against the Petitioner that any fraud was committed by him for getting these time bound promotion in the year, 1983 and 1999. ;