Jharkhand High Court
Praveen Kumar Verma vs State Of Jharkhand & Ors on 18 April, 2013
Author: Narendra Nath Tiwari
Bench: Narendra Nath Tiwari
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.2751 of 2010
Praveen Kumar Verma .......... Petitioner
Versus
State of Jharkhand & Ors. ........ Respondents
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CORAM : HON'BLE MR. JUSTICE NARENDRA NATH TIWARI
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For the petitioner : Mr. Amar Kumar Sinha
For the State : Md. Shamim Akhtar
Mr. Navin Kumar Singh
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7/18.04.2013: In this writ petition, the petitioner has prayed for quashing the office order dated 13.2.2010 contained in memo no.347 issued by the Superintending Engineer, Building Construction Department, Hazaribag (Annexure-9), whereby the said respondent has directed for recovery of the amount paid to the petitioner as promotional / A.C.P. benefits as part of the salary.
2. The petitioner joined in the service of Correspondence Clerk on 23.7.1971. He was given promotion to the Junior Selection Grade w.e.f. 31.8.1985 and was given promotional benefits. By office order dated 28.2.1986 an order was issued giving promotional benefits to the petitioner w.e.f. 1.4.1981. The petitioner was given 1st and 2nd time bound promotion w.e.f. 9.8.1999. After the said order his pay scale was fixed with those promotional benefits. A notice was issued by letter dated 22.1.2010 asking the petitioner as to why the A.C.P. promotional benefits given to the petitioner be not cancelled on account of not passing the accounts examination.
3. The petitioner submitted his reply stating, inter alia, that whatever the pay scale is fixed by the competent authority in accordance with law, he will accept. The respondents, thereafter, -2- passed the impugned order dated 13.2.2010, whereby the respondents sought recovery of the entire amount given on account of A.C.P. / promotional benefits. It has been submitted that the petitioner had been working as Clerk and was exempted from passing Accounts examination and the reason / ground assigned for recovery of the amount of promotional benefits, already given to the petitioner, is illegal and arbitrary.
4. Mr. Amar Kumar Sinha, learned counsel appearing on behalf of the petitioner submitted that the respondents have no legal authority to recover the amount paid to the petitioner on account of promotional benefits as part of the salary. It is not the case of the respondents that the said promotional benefits was fraudulently obtained by the petitioner or there was any misrepresentation on his part in obtaining the order of promotion. Learned counsel submitted that in Sahib Ram Vs. State of Haryana & Ors. (Reported in 1995 Supp (1) SCC 18) and in other decisions referred by this Court it has been held that any amount paid as part of the salary without any fraud or misrepresentation, can not be recovered. The respondents have, thus, arbitrarily issued the said order which is contrary to the said settled law. The impugned order is liable to be quashed by this Court on the said ground itself. He further submitted that proper opportunity was not given to the petitioner before passing the said order. Though a notice was issued and he had filed an effective reply, but no reason has been assigned for rejecting his reply before passing the impugned order.
5. The writ petition has been opposed by the respondents. Learned S. C. (Mines) appearing on behalf of the respondents -3- submitted that the petitioner was given promotion to the selection grade w.e.f. 1.4.1981. The benefit of A.C.P. is payable to an employee who is not given any promotion. Since the petitioner was given promotion to the selection grade, he was not entitled to get 1st Time Bound Promotion. However, by order dated 12.11.2003 and 27.12.2003 the petitioner was given 1st and 2nd Time Bound Promotion w.e.f. 9.8.1999, contrary to the circulars and policy decisions. When the same was subsequently detected, notice was given to the petitioner, giving him opportunity to file his reply. The impugned order has been passed after considering his reply and the legal provisions. Learned counsel submitted that there is no illegality in recovery of the amount paid by mistake. By the impugned order, the amount illegally paid to the petitioner, has been sought to be recovered. There is no illegality or arbitrariness in the impugned order. The writ petition is liable to be dismissed.
6. I have heard learned counsel for the parties and considered the facts and materials on record.
7. It is not in dispute that the order of promotion to the Junior Selection grade as well as the orders of granting 1st and 2nd ACP benefits were passed by the concerned authority of the Department. It is not the case of the respondents that the promotion or A.C.P. was obtained by the petitioner by misrepresentation or playing any fraud.
8. In Sahib Ram case (supra) it has been held by the Apex Court that any amount paid to the petitioner, which is not obtained by fraud or misrepresentation, cannot be recovered. -4-
9. In view thereof, the respondents, in the facts and circumstances of the case, cannot recover the amount which has already been paid to the petitioner as a part of his salary.
10. However, if there is any mistake in giving promotion or if there is any violation of provisions in giving promotion to the petitioner, the respondents are at liberty to correct the same after giving due opportunity of representation to the petitioner.
11. The petitioner has also fairly admitted in his reply to the show-cause that whatever the pay scale admissible in law, the same will be acceptable to him.
12. In view of the above, the impugned order of recovery contained in memo no.347 dated 13.2.2010 (Annexure-9) is quashed.
13. However, if there is any mistake in pay fixation of the petitioner, the respondents are at liberty to correct the same after observing due process of law, with prospective effect.
14. This writ petition is allowed in the above terms.
Shamim/ (Narendra Nath Tiwari, J.)