PRAMATH PATNAIK, J. - (1.) IN the accompanied writ application the petitioner has inter alia, prayed for quashing the official order vide Memo No. 32/2010 -1963 dated 6.10.2010 passed by respondent no. 2 - Director Mines and Geology Department vide Annexure - 10 to the writ application and for direction to the respondents to take immediate steps for payment of retiral dues of the petitioner.
(2.) SANS details facts in a nutshell is that the petitioner initially joined as typist on 14.10.1974 in the department of Mines and Geology, Government of Bihar by Office Order No.6321 M Patna dated 12.10.1974. He was kept in charge as Head Clerk cum Account in his own pay scale vide Office Order No. 1478/M Patna dated 27.3.1990. The petitioner retired on 31.08.2008 on attaining the age of superannuation on the aforesaid post. As has been averred in the writ application, the petitioner discharged his duty efficiently and diligently and his performance has been unblemished throughout. The petitioner passed last level departmental accounts examination held on 29.07.1979 and result was declared vide letter no.18 -08/79 -5 dated 8.12.1980 as mentioned in the service book vide Annexure - 1 to the writ application. During in the year 2007, the Deputy Director (Geology) had approved the salary of petitioner on 17.12.2007 in scale of 5000 -150 -8000 as evident in para 7 in Annexure -3/1 to the writ petition. The Director (Geology) issued an office order vide Memo No.213 Ranchi dated 19.3.2005 relating to fixation of finance increment benefit of the Government servant under the provision of Finance Department, Jharkhand and after approval by the Departmental Screening Committee. Wherein the name of the petitioner has been placed at Serial No.63 of the said office order vide Annexure -5 to the writ application. It has been averred in the writ application that the petitioner is Head Clerk not a mere clerk as evident from Annexure -6 to the writ application and vide Resolution dated 21.09.2007 by the Finance Department, Government of Jharkhand and pay scale of the petitioner was fixed 5000 - 150 -8000 which has been approved on 17.12.2007 as per Annexure -7 to the writ petition. After retirement, the pension was fixed by the Accountant General on the basis of last pay drawn vide Annexure -8 series to the writ application. The petitioner was eligible for sanctioned retirement benefit as per pay fixation and pension fixation vide Annexure -9 to the writ application, wherein the petitioner name is mentioned in Serial No.5. But to the utter surprise and consternation, after retirement of the petitioner the impugned order vide Annexure -10 has been passed vide Office Order No.32/2010 whereby first financial benefit and second financial benefit which has been withdrawn. Being aggrieved by the impugned order vide Annexure -10 to the writ application, the petitioner has submitted representation on 04.11.2010 before the respondent no.2 - Director Mines and Geology department for redressal of grievances. Since the said representation did not evolve any response by the competent authorities, the petitioner has approached this Court by invoking extraordinary writ jurisdiction under Article 226 of the constitution of India for redressal of his grievances.
(3.) PER contra, the respondents have filed a counter affidavit repelling contentions made in the writ application. In the counter -affidavit it has been submitted that he was made Head Clerk cum Account Incharge in his own pay scale vide Office Order No. 1478/M Patna dated 27.3.1990 which was purely a working arrangement by Office Order Nos.213 dated 19.3.2005 and 1164 dated 18.7.2009. Petitioner was given first and second ACP in the scale of Rs.5000 -8000 and 5500 -9000 with effect from 09.08.1999 as per letter no.Pen -06/79 (part) -2132/ F92 dated 1.4.1980, no clerk can be given regular promotion unless one passes Account Examination conducted by Board of Revenue. As per resolution no.5207/F Ranchi dated 14.8.2002 for grant of ACP a Government servant has to fulfill all norms of regular promotion. In course of verification of grants of ACP to the petitioner it was found that he has not passed the Account Examinations fully. As per provisions of rule 157 of Bihar Board Misc Rule 1958, an employee has to pass two papers in Account Examination in which if he/she get 60% of marks he/she will be considered passed at final level of account examination, but if he/she gets less than 60% of the marks he/she will be treated only passed at initial level of first paper and final level of second paper, but he had not passed the final level of first paper examination. Since the petitioner did not clear the Account Examination during his service period, therefore his first and second ACP was withdrawn by office order no.1963 dated 6.10.2010. On the representation of petitioner he was given opportunity vide letter no.2167/M dated 10.11.2010 to produce the certificate of all stages of Account Examinations but he could not produce the same, therefore, withdrawal of his grant second ACP is justified. The photo copy of the order dated 10.11.2010 has been annexed to the counter -affidavit. But the Gratuity, unused EL, Essential Group Insurance Scheme has already been paid to the petitioner as has been stated in the counter -affidavit. It has further been submitted in the counter -affidavit that petitioner has not retired from the post of Head Clerk on 31.08.2008 but he was working as incharge Head Clerk. He was never given regular promotion of Head Clerk by the department because petitioner has not passed Accountant Examination. Therefore question of his retirement does not arise at all and the photo copy of the of the service book has been annexed as Annexure -B to the counter -affidavit. It has further stated in the counter -affidavit that first and second ACP benefits vide letter no.213 dated 19.3.2009, is provisional and subject to verification. At the time of verification, it was found that the petitioner has not passed all level of departmental account examination, therefore, both ACP was withdrawn. It has further been submitted that the designation of the petitioner has been clearly mentioned as Clerk vide letter no.1164 dated 18.7.2009 annexed as Annexure -C to the counter -affidavit. By the impugned order, the only scale of the petitioner has been rectified by revising the previous letter no.216 dated 19.3.2005 memo no.367 of 25.3.2006 and so far as the payment of retirement benefits are concerned, the petitioner has been paid the proceeds of Gratuity, unused EL, Essential Group Insurance Scheme. With the aforesaid submissions, the respondents have prayed for dismissal of the writ petition. Having heard learned counsel for both the parties at length and on perusal of the documents on record, it appears from the impugned order, vide Annexure 10 that the respondent no.2 has rectified the earlier order relating to pay scale due to non -passing of last level departmental accounts examination, which is a sine qua non for promotion to the post of Head Clerk. Admittedly, the petitioner has not passed the final examination, therefore, he was kept in the Head Clerk. In charge head clerk is not entitled to pay scale admissible to the Head Clerk, therefore, impugned order vide Annexure -10, the respondent has rightly rectified the pay scale which does not warrant any interference by this Court. It is well settled principle of law that a bonafide mistake can be rectified at point of time. In the instant case, it appears that the mistake, which was overlooked due over sight, has been rectified vide Annexure -10, therefore, no illegality and irregularity can be said to have been committed by respondents so as to warrant any interference.;