Supreme Court - Daily Orders
Vijay Kumar Mishra vs The State Of Bihar on 11 July, 2017
Bench: Madan B. Lokur, Deepak Gupta
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No(s). 6987-6988/2016
VIJAY KUMAR MISHRA Appellant(s)
VERSUS
THE STATE OF BIHAR & ORS. Respondent(s)
O R D E R
We have heard learned counsel for the parties. The challenge in this appeal is to order dated 17.07.2013 passed by the Division Bench of the Patna High Court as well as to order dated 09.02.2015 which dismissed a review application filed by the appellant seeking review of order dated 17.07.2013.
The appellant was granted benefit of time bound promotion on 20.11.1990. The respondents realized some time in the year 2011 i.e. after a gap of almost 20/21 years that the appellant was not eligible for promotion to the higher post and consequently for the time bound promotion. Accordingly, the time bound promotion was withdrawn on 29.10.2011 and the difference in salary was also directed to be recovered.
Feeling aggrieved, the appellant challenged order dated 29.10.2011 by filing a writ petition which was allowed by the learned Single Judge.
Subsequently, the respondents preferred a Letters Patent Appeal which came to be allowed by the Division Bench of the High Signature Not Verified Digitally signed by MEENAKSHI KOHLI Date: 2017.07.15 Court setting aside the order passed by the learned Single Judge. 13:56:38 IST Reason:
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The Division Bench relied upon State of Bihar & Anr. v. Kusheswar Nath Pandey [2013 (1) PLJR 939].
It has been brought to our notice that the decision rendered in Kusheswar Nath Pandey (supra) was a subject matter of Civil Appeal No. 6658/2013. By Judgment and Order dated 05.08.2013, this Court reversed the decision in Kusheswar Nath Pandey (supra). It was held as follows:
“In our view, the facts of the present case are clearly covered under the two judgments referred to and relied upon by Mr. Rai. The appellant was not at all in any way at fault. It was a time bound promotion which was given to him and some eleven years thereafter, the Authorities of the Bihar Government woke up and according to them the time bound promotion was wrongly given and then the relevant rules are being relied upon and that too after the appellant had passed the required examination.
It was on this basis that the appellant preferred a review petition before the High Court but that came to be dismissed by the Division Bench of the High Court.
In our opinion, since the decision relied upon by the High Court has been reversed by this Court and since the respondents before us have woken up to the fact that the appellant was not eligible for promotion after a gap of 20/21 years, we see absolutely no reason why the appellant should be prejudiced.
In this context, we may also refer to the State of Punjab & Ors. v. Rafiq Masih (White Washer) & Ors. [(2015) 4 SCC 334]. It was held in para 18 of the Report that where the employee is not at fault no recovery should be made from him, particularly if the realization of the mistake made by the Department is after an unreasonable period of time. Para 18 of the Judgment reads as 2 follows:
“It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarize the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).
(ii)Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv)Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.” In the present case, realization dawned upon the respondents after about 20/21 years. In view of the above, we set aside the order passed by the Division Bench and restore the order passed by the learned Single Judge.
The civil appeals are allowed. No order as to costs.
…....................J. [MADAN B. LOKUR] …....................J. [DEEPAK GUPTA] NEW DELHI;
JULY 11, 2017.
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ITEM NO.109 COURT NO.5 SECTION XVI
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 6987-6988/2016
VIJAY KUMAR MISHRA Appellant(s)
VERSUS
THE STATE OF BIHAR & ORS. Respondent(s)
Date : 11-07-2017 These appeals were called on for hearing today.
CORAM : HON'BLE MR. JUSTICE MADAN B. LOKUR
HON'BLE MR. JUSTICE DEEPAK GUPTA
For Appellant(s) Mr. Ugranath Kumar, Adv.
Ms. Ruchita P., Adv.
Mr. S. K. Verma, AOR
For Respondent(s) Ms. Abha R. Sharma, AOR
Ms. Sujeeta Srivastava, Adv.
Mr. D.S. Parmar, Adv.
Mr. Sushil Tomar, Adv.
Mr. Maninder Singh, ASG
Mr. Nalin Kohli, Adv.
Mr. T.M. Singh, Adv.
Mr. Prabhas Bajaj, Adv.
Mrs. Anil Katiyar, Adv.
Mr. Mukesh Kumar Maroria, AOR
UPON hearing the counsel the Court made the following O R D E R The civil appeals are allowed in terms of the signed order.
(MEENAKSHI KOHLI) (SHARDA KAPOOR)
COURT MASTER ASSISTANT REGISTRAR
[Signed order is placed on the file]
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