Jharkhand High Court
Rabinder Kumar vs The State Of Jharkhand on 31 August, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 6248 of 2023
Rabinder Kumar, aged about 61 years, son of Bigeshwar Prasad,
Resident of Arjun Niwas, Flat No. 401, Sankosai, Dimna Road No. 5,
Mango, Jamshedpur, Jharkhand
............petitioner
Versus
1. The State of Jharkhand
2. Secretary, Department of Health, Medical Education and Family
Welfare, Government of Jharkhand, Nepal House, P.O. and P.S.
Doranda, District-Ranchi, Jharkhand
3. The Director, Department of Health, Medical Education and
Family Welfare, Government of Jharkhand, Nepal House, P.O. and
P.S. Doranda, District-Ranchi, Jharkhand
4. Civil Surgeon-cum-Chief Medical Officer, P.O. and P.S. East
Singhbhum, District-Jamshedpur, Jharkhand
5. District Commissioner, P.O. and P.S. East Singhbhum, District-
Jamshedpur, Jharkhand
...... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Saurav Arun, Advocate
Mr. Sharan Kerketta, Advocate
Ms. Ayushi, Advocate
Mr. Bhanu Kumar No. 1
For the State : Mr. Krishna Prajapati, A.C. to S.C-V
.........
05/Dated: 31/08/2024
Heard Mr. Saurav Arun, learned counsel for the petitioner and Mr. Krishna Prajapati, learned counsel for the State.
2. The prayer in the writ petition is made for quashing the order dated 12.06.2023 contained in annexurfe-10 by which the increment given to the petitioner has been withdrawn and recovered with effect from 2018 till the date of retirement i.e. 31.01.2022 on account of non-passing of Hindi Noting and Drafting Examination which is against the verdict of the this Court in W.P. (S) No. 1560/2014, W.P.(S) No. 301/2019, W.P.(S) No. 4081/2018. Further prayer is made for direction to refund the recovered amount and restoration promotion.
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3. Mr. Saurav Arun, learned counsel for the petitioner submits that the petitioner was appointed as an Insect Collector on 03.06.1986 after following the due procedure and joined the services posted at different places and thereafter retired on 31.01.2022 from the office of Filaria Control Unit, East Singhbhum, Jamshedpur. He further submits that on 15.06.1968 a circular was issued in which it has been categorically been stated that the person who has done his matriculation with one subject as Hindi (Devnagri) is exempted to appear in Hindi Noting and Drafting Examination and admittedly the petitioner has passed his matricular with one subject as Hindi (Devnagri) and hence in view of the said circular the petitioner is exempted from appearing in the Hindi Noting and Drafting Examination contained in Annexure-1. He further submits that the said notification was again reiterated by the State of Jharkhand, Personnel and Administrative Reforms Department on 06.07.2001 contained in Annexure-2 and both the above circular further strengths the Circular dated 03.06.2003 contained in Annexure-3. He further submits that Annexure-1 clearly suggests that Rule made in Article 309 of the Constitution of India cannot be amended or changed according to whims and fancies of the respondent. He then submits that on the ground of not passing of that examination the impugned order dated 12.06.2003 has been passed wherein the petitioner's promotion has been taken away and direction has been made to recover the amount received by the petitioner. He submits that the case of the petitioner is fully covered in the light of judgments passed in W.P.(S) No. 301/2019, as well as W.P.(S) No. 4081/2018. On these grounds, he submits that impugned order may kindly be quashed.
4. Learned counsel for the State by way of inviting the attention of the Court to the counter-affidavit particularly Annexure-D submits that District VBD Officer, Falaria Control Unit, East Singhbhum, Jamshedpur vide 2 Memo No. 35 dated 28.06.2023 informed that the petitioner has not applied for participation in examination till 28.01.2012 (completed 50 years of age) and no permission was granted by his office for appearing in examination. By way of referring letter dated 18.11.2023, he submits that the case of the petitioner is further fit to be rejected as the petitioner has not tried to pass the said examination. On these grounds he submits that there is no illegality in the impugned order.
5. In view of above submissions of the learned counsel for the parties the Court has gone through the Circular contained in Annexure-1, 2 and 3 which clearly speaks that the person who has done matriculation one subject as Hindi (Devnagri) is exempted to appear in Hindi Noting and Drafting Examination and the reliance is placed on the letter dated 03.11.2014 contained in Annexure-5 which is already quashed by the Coordinate Benches in the aforesaid writ petitions. The Hon'ble Supreme Court in the case of "State of Punjab & Ors. Vs. Rafiq Masih (White Washer) & Ors." reported in (2015) 4 SCC 339" has held in para 18 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, wherem recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-lli and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within ore year, of the order of recovery.
(iii) Recovery from employees, wher 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."
6. The issue regarding passing of Hindi Noting and Drafting 3 Examination of the employees in view of the notification dated 03.11.2014 fell consideration before this Court in the case of "Mrs. Papiya Mukherjee & Ors. Vs. State of Jharkhand & Ors" in W.P.(S) No. 1560/2014 and the said has already been quashed by the Coordinate Bench. As such ground of taking away promotion as well as recovery of the increment is not sustainable. Further in the counter-affidavit the State has tried to improve the case by way of saying that the petitioner has never appeared in the examination and it is not technical post that reason is not assigned in the impugned order. It is well settled that by way of filing affidavit the case cannot be allowed to be improved by the respondent- State in the light of judgment "Mohinder Singh Gill & Anr. Vs. The Chief Election Commissioner, New Delhi" reported in the AIR 1978 SC 851.
7 In view of above it appears that the case of the petitioner is fully overed in view of the Coordinate Benches judgment and the said notification has already been quashed and case cannot be allowed to be improved in the light of Mohinder Singh GILL (supra). Accordingly, the impugned order dated 12.06.2023 contained in Annexure-10 is hereby quashed.
8. As a cumulative effect of the aforesaid facts, the respondents are directed to pay recovered amount if any within a period of six weeks from the date of receipt/production of a copy of this order and further disburse the entire retiral benefits to the petitioner and also pass order of fixation of the pension of the petitioner within four weeks from the date of receipt/production of a copy of this order. Since there was no need of passing of the said examination mere on that ground the promotion cannot be taken away in view of that the promotion granted to the petitioner shall also be restored.
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9. This writ petition is disposed of. Pending I.A, if any, stands disposed of.
( Sanjay Kumar Dwivedi, J.) Satyarthi/ 5