Jharkhand High Court
Arun Kumar Jha vs The State Of Jharkhand on 15 January, 2020
Equivalent citations: AIRONLINE 2020 JHA 627
Author: S.N. Pathak
Bench: S. N. Pathak
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 4081 OF 2018
Arun Kumar Jha ... ... Petitioner
VERSUS
1. The State of Jharkhand
2. The Secretary, Department of Health, Family Welfare and Medical Education,
Govt. of Jharkhand, Ranchi
3. The Director, Ayush, RCH, Namkom, Ranchi
4. The District Ayurvedic Medical Officer, East Singhbhum, Jamshedpur.
... ... Respondents
CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK
For Petitioner : Mr. Saurav Arun, Advocate.
For the Respondents : AC to AAG
08/15.01.2020 Heard counsel for the parties.
2. Petitioner has knocked door of this Court for quashing letter dated 17.07.2018 (Annexure-9) by which order of recovery has been passed on account of non-passing of Hindi Noting and Drafting Examination. Petitioner has also prayed for a direction upon the respondents to consider case of the petitioner for grant of 2nd MACP with effect from 01.09.2008 and thereafter 3rd MACP with effect from 01.04.2017 and pay the benefits accordingly. Petitioner has also prayed for a direction upon the respondents not to act in terms of order dated 03.01.2014, which has been quashed in W.P.(S) No. 1560 of 2014.
3. Factual exposition as has been delineated in the writ petition is that petitioner was appointed on 01.04.1987 as Ayurvedic Mishrak (Ayurvedic Compounder) but has not been given any promotion. Petitioner has also not been given the benefits of ACP though in view of Circular dated 15.06.1968 and 06.07.2001, he being matriculation with one subject Hindi (Devnagri), is exempted from appearing in Hindi, Noting and Drafting Examination. It is case of the petitioner that in place of consideration of his case for grant of 2 nd MACP, impugned order dated 17.07.2018 has been passed whereby 1st ACP granted earlier has been withdrawn and recovery order has been passed in a most whimsical manner. It has been mentioned therein that the benefits of ACP/ MACP shall be extended to the petitioner with effect from 12.02.2012 in accordance with law. Aggrieved thereto, petitioner has been constraint to prefer this writ petition.
4. Mr. Saurav Arun, learned counsel appearing for the petitioner strenuously urges that impugned order is not tenable in the eyes of law, in view of catena of decisions of Hon'ble Apex Court as well as of this Court. Learned RC 2 counsel further argues that the benefits which has been accepted by the respondent-State as well as by the petitioner, cannot be withdrawn without even following the cardinal principles of natural justice. Learned counsel places heavy reliance on the Constitutional Bench judgment of Hon'ble Apex Court in case of State of Punjab & Ors. Vrs. Rafiq Masih (White Washer) & Ors. [(2014) 4 SCC 334] and also in case of Kusheshwar Nath Pandey Vs. State of Bihar & Ors., reported in (2013) 12 SCC 508. It has further been contended that the notification by which the respondent-authorities were bent upon to recover the amount on the ground that the petitioner has not cleared the Hindi Noting and Drafting Examination has already been taken into consideration by this Court in case of Mrs. Papiya Mukherjee & Ors. Vs. State of Jharkhand & Ors., vide order dated 19.03.2015 passed in W.P.(S). No. 1560 of 2014 and in no way the respondents can be permitted to recover the amount and as such, a direction be given to the respondent-authorities to refund the recovered amount as well as to pass orders for fixation of his pay and other benefits. Learned counsel submits that similar issue has come up before this Court in W.P.(S) No. 301 of 2019 and vide order dated 05.08.2019, the impugned order directing recovery and reduction in pay-scale of said petitioner has been quashed and set aside with a further direction to refund recovered amount, if any, to said petitioner and to disburse entire retiral benefits accordingly. Learned counsel submits that this writ petition may also be disposed of in light of orders and directions passed in W.P.(S) No. 301 of 2019.
5. Per contra, counter-affidavit has been filed.
6. AC to learned AAG appearing for the respondent-State, vehemently opposes the contention of the learned counsel for the petitioner. Learned counsel submits that since the petitioner has not cleared the Hindi Noting and Drafting Examination during his entire service tenure, he is not entitled for enhanced pay- scale and the recovery is fully justified. Learned counsel further submits that in view of Sankalp vide memo No. 131 dated 18.05.2017, respondents have passed the reasoned order that the exemption from passing the Hindi Noting and Drafting Examination is only applicable with respect to Nursing cadre and since the petitioner was appointed to the post of Pharmacist, it is desirable to pass the said examination. Learned counsel further argues that the resolution dated 18.05.2017 has not been challenged by the petitioner in the instant writ application and as such, there is no illegality in the impugned orders. In view of the aforesaid facts, the writ petition is fit to be dismissed outrightly.
7. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered opinion that the case of the petitioner needs RC 3 consideration. The Hon'ble Apex Court in its landmark judgment in case of State of Punjab & Ors. Vrs. Rafiq Masih (White Washer) & Ors. (supra), has held as under :-
"18. 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 herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from 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."
8. The issue regarding passing of Hindi Noting and Drafting Examination of the employees in view of notification dated 03.11.2014, fell for consideration before this Court in case of Mrs. Papiya Mukherjee & Ors. Vs. State of Jharkhand & Ors. (supra) and this Court, after hearing the counsel for the parties, was pleased to quash the notification itself. The State has filed counter-affidavit and tried to impress upon the Court that only 10 posts have been excluded from passing the Hindi Noting and Drafting examination and the post held by petitioner has not been included in the said notification. From a bare perusal of the notification brought on record by way of Annexure-'A' to the counter-affidavit, it is clear that the same is regarding Nursing cadre. It is surprising that even after repeated orders of this Court, the State has not come-out with any notification to the effect that the pharmacists along with 17 other cadres, which were part of the aforesaid notification and which was subsequently quashed by this Court, have been exempted from passing of the Hindi Noting and Drafting Examination. Admittedly, the petitioner has received the amount which was due to him in the year 1989 and 2006 by way of ACP. It is a well settled law that any order visiting civil consequences cannot be passed without affording opportunity of hearing to the employee. In the instant case, from the records of RC 4 the case, it is crystal clear that the order of recovery was passed without affording opportunity to the petitioner to be heard.
9. In view of admitted facts and in view of the propositions laid down by the Hon'ble Apex Court, the order of recovery and reduction in pay-scale of the petitioner dated 17.07.2018 (Annexure-9) is hereby quashed and set aside.
10. As a cumulative effect of the aforesaid observations, rules, guidelines, judicial pronouncements and legal propositions of law, I hereby direct the respondents to refund the recovered amount, if any, within a period of eight weeks from the date of receipt/ production of a copy of this order and further to disburse the entire benefits including benefits of MACP to the petitioner and also to pass orders for fixation of pay etc. of the petitioner within a period of twelve weeks from the date of receipt/ production of a copy of this order.
11. As a sequitur to aforesaid observations and directions, the writ petition stands allowed.
(Dr. S.N. Pathak, J.) RC