Patna High Court
Shambhu Sharan vs The State Of Bihar Through The Chief ... on 6 March, 2024
Author: Mohit Kumar Shah
Bench: Mohit Kumar Shah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.18043 of 2021
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Shambhu Sharan Son of Late Govind Lal Resident of Village - Manpur, P.O.
Purani, Police Station- Giriyak, District- Nalanda.
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Old Secretariat, Patna.
2. The Principal Secretary, Minor Water Resources Department, Government
of Bihar, New Secretariat, Patna.
3. The Principal Secretary, Finance Department, Government of Bihar, Old
Secretariat, Patna.
4. The Chief Engineer, Minor, Water Resources Department, Government of
Bihar, Patna.
5. The Superintending Engineer, Minor Water Resources Division, Patna.
6. The Executive Engineer, Minor Water Resources Division, Nalanda.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Mukul Prasad, Adv.
For the State : Mr.Kapileshwar Prasad Yadav, GP-11
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CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
ORAL JUDGMENT
Date : 06-03-2024
The present writ petition has been filed seeking the
following relief:-
"1. That the petitioner prefers the present writ
petition for the issuance of an appropriate writ or
writs in the nature of certiorari or any other writ
or writs and direction or directions for quashing
the letter No. 976 dated 07.08.2021 issued by the
Chief Engineer, Minor Water Resources
Patna High Court CWJC No.18043 of 2021 dt.06-03-2024
2/7
Department by which the 2nd A.C.P. and 3rd
A.C.P. granted to the petitioner vide Annexure-5
have been withdrawn and excess payment made
to the petitioner has been directed to be
recovered in one lump sum and the name of the
petitioner finds place at serial no. 125 and for
restoration of Annexure-1 and 2 by which the
petitioner has been granted the benefits of 2nd &
3rd A.C.P. with effect from 2.9.2007 and
29.2.2021and also for a further direction for stay of recovery of the excess amount paid to the petitioner during service period."
2. The learned counsel for the petitioner submits that the petitioner was appointed on 21.3.1979 in the Minor Irrigation Department and he superannuated on 31.1.2012 from the office of the Executive Engineer, Minor Irrigation Department, Nalanda, while working as Correspondence Clerk. He was granted benefit of 1st and 2nd ACP by the Respondent No. 4, vide letter dated 20.8.2011, with effect from 9.8.1999 and 2.9.2007 respectively. The petitioner was then granted benefit of 3 rd ACP / MACP, vide letter dated 21.5.2015, with effect from 29.8.2011. It is also stated that the fixation of pay of the petitioner was carried out, after proper verification from the Accounts Office, Nalanda and the same was granted from the date of passing of the Accounts Examination i.e. with effect from 17.1.2010, vide Patna High Court CWJC No.18043 of 2021 dt.06-03-2024 3/7 letter dated 28.9.2011. Now, after superannuation of the petitioner on 31.1.2012, after fixation of the pension of the petitioner, the Respondent No. 4 has issued an office order dated 7.8.2021, whereby and whereunder the earlier orders, granting the benefits of 1st ACP / 2nd ACP and 3rd MACP, have been withdrawn and it has been directed to recover the excess amount, paid to the petitioner, which is impermissible in law, in view of the law laid down by the Hon'ble Apex Court in the case of State of Punjab & Others vs. Rafiq Masih & Others, reported in (2015) 4 SCC 334.
3. Per contra, the learned counsel appearing for the Respondent-State has referred to the counter affidavit, filed in the present case, to submit that passing of departmental accounts examination is a pre-requisite for grant of the benefits of ACP / MACP Scheme and since the petitioner had passed departmental accounts examination finally on 17.1.2010, he is entitled to get the benefits of MACP with effect from the said date and not from a date prior to the same, as such, the earlier orders, granting petitioner the benefits of ACP / MACP, have been reviewed and recovery has been sought to be made qua the excess amount of salary paid to the petitioner.
4. I have heard the learned counsel for the parties and Patna High Court CWJC No.18043 of 2021 dt.06-03-2024 4/7 perused the materials on record.
5. This Court finds that the law regarding the issue under consideration is no longer res integra, inasmuch as a learned Division Bench of this Court in the case of the State of Bihar & Ors. vs. Ram Subhag Singh (LPA No. 4 of 2021), reported in 2022 (2) PLJR 773, by a judgment dated 11.5.2022, has held that non-passing of departmental examination shall not be an impediment to grant of the benefits of time bound promotions / ACP /MACP. In fact, this aspect of the matter has also been decided by a judgment, rendered by this Hon'ble Court in the case of State of Bihar & Ors. vs. Anjani Kumar, reported in 2013 (2) PLJR 643, which has also been upheld by the Hon'ble Apex Court, by an order dated 10.3.2014, passed in SLP (C) No. 19182 of 2013. In this regard, reference be also had to a judgment rendered by the learned Division Bench of this Court in the case of State of Bihar & Ors. vs. Smt. Jivachi Devi, reported in 2020 (2) BLJ 471, which has also been upheld by the Hon'ble Apex Court, in view of the dismissal of the Special Leave Petition filed by the respondent-State. It would be equally gainful to refer to a judgment rendered by the learned Division Bench of this Court in the case of The State of Bihar & Ors. vs. Shri Krishna Singh & Anr. (L.P.A. No. 372 of 2019). In a Patna High Court CWJC No.18043 of 2021 dt.06-03-2024 5/7 recent judgement, rendered by the Hon'ble Apex Court in the case of Amresh Kumar Singh (supra), it has been held that extending the benefit of ACP, which is purely and simply in the nature of grant of monetary benefit without actually effectuating any promotion to any higher post, cannot be withheld for not possessing additional educational qualification, hence for the purposes of granting benefits of ACP/MACP, passing of any exam is not necessary.
6. Thus, there is no iota of doubt that the petitioner has to be granted the benefits of the Assured Career Progression scheme as also that of MACP scheme, de hors the fact that the petitioner has not passed the Departmental Accounts Examination, in case he has not been promoted, in order to deal with the problem of stagnation.
7. This Court further finds that the law regarding recovery is no longer res integra, inasmuch as the Hon'ble Supreme Court of India in the case of Rafiq Masih & Others (supra) has categorically held that no recovery can be made from the retired employees. In this regard, it would be relevant to reproduce paragraph no. 18 of the aforesaid judgment, rendered in the case of Rafiq Masiq & Others (supra), hereinbelow:-
"18. It is not possible to postulate all situations of hardship which would govern employees on Patna High Court CWJC No.18043 of 2021 dt.06-03-2024 6/7 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, summarise 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."
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8. Having regard to the facts and circumstances of the case and for the reasons mentioned hereinabove, this Court finds that the impugned order dated 7.8.2021, passed by the Chief Engineer, Minor Water Resource Department, Patna, is unsustainable in the eyes of law, hence, is quashed and the Respondent authorities are directed to refund the recovery made from the petitioner, if any, within a period of four weeks from today.
9. The writ petition stands allowed.
(Mohit Kumar Shah, J) Ajay/-
AFR/NAFR AFR CAV DATE NA Uploading Date 14.3.2024 Transmission Date NA