Jharkhand High Court
Kamla Devi vs The State Of Jharkhand on 1 August, 2018
Author: S.N. Pathak
Bench: S.N.Pathak
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S).No. 6760 of 2017
1. Kamla Devi
2. Uma Shankar Singh ... ... ... ...Petitioners
Versus
1. The State of Jharkhand
2. The Principal Secretary, Department of School Education and Literacy, Govt. of
Jharkhand, Project Building, Dhurwa, Ranchi
3. The Director, Secondary Education, Department of School Education and
Literacy, Govt. of Jharkhand, Telephone Bhawan, Dhurwa, Ranchi
4. The Regional Deputy Director of Education, South Chhotanagpur Division,
G.P.O., Kotwali, Ranchi
5. The District Education Officer, Ranchi
6. The District Accounts Officer, Ranchi ... ... .... ...Respondents
with
W.P.(S).No. 6583 of 2017
1. Ram Kishore Singh
2. Babita Devi
3. Chatur Mahto
4. Sudhir Kumar ... ... ... ...Petitioners
Versus
1. The State of Jharkhand
2. The Principal Secretary, Department of School Education and Literacy, Govt.
of Jharkhand, Project Building, Dhurwa, Ranchi
3. The Director, Secondary Education, Department of School Education and
Literacy, Govt. of Jharkhand, Telephone Bhawan, Dhurwa, Ranchi
4. The Regional Deputy Director of Education, South Chhotanagpur Division,
G.P.O., Kotwali, Ranchi
5. The District Accounts Officer, Ranchi ... .... .... ..Respondents
with
W.P.(S).No. 6841 of 2017
1. Shailesh Minz
2. Diwakar Kumar
3. Ravindra Kumar Bhagat
4. Rabindra Prasad
5. Ranju Kumari ... ... ... ...Petitioners
Versus
1. The State of Jharkhand
2. The Principal Secretary, Department of School Education and Literacy, Govt.
of Jharkhand, Project Building, Dhurwa, Ranchi
2
3. The Director, Secondary Education, Department of School Education and
Literacy, Govt. of Jharkhand, Telephone Bhawan, Dhurwa, Ranchi
4. The Regional Deputy Director of Education, South Chhotanagpur Division,
G.P.O., Kotwali, Ranchi
5. The District Accounts Officer, Ranchi ... .... .... Respondents
with
W.P.(S).No. 6874 of 2017
1. Sapan Kumar Mitra
2. Ram Janam Verma
3. Prakash Kumar ... ... ... ...Petitioners
Versus
1. The State of Jharkhand
2. The Principal Secretary, Department of School Education and Literacy, Govt.
of Jharkhand, Project Building, Dhurwa, Ranchi
3. The Director, Secondary Education, Department of School Education and
Literacy, Govt. of Jharkhand, Telephone Bhawan, Dhurwa, Ranchi
4. The Regional Deputy Director of Education, South Chhotanagpur Division,
G.P.O., Kotwali, Ranchi
5. The District Accounts Officer, Ranchi ... .... .... ..Respondents
With
W.P.(S).No. 847 of 2018
Imran Hans ... ... ... ...Petitioner
Versus
1. The State of Jharkhand
2. The Principal Secretary, Department of School Education and Literacy, Govt.
of Jharkhand, Project Building, Dhurwa, Ranchi
3. The Director, Secondary Education, Department of School Education and
Literacy, Govt. of Jharkhand, Telephone Bhawan, Dhurwa, Ranchi
4. The Regional Deputy Director of Education, South Chhotanagpur Division,
G.P.O., Kotwali, Ranchi
5. The District Accounts Officer, Ranchi ... .... .... ..Respondents
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CORAM: THE HON'BLE MR. JUSTICE DR. S.N.PATHAK For the Petitioners : Mr. Deepak Kumar Prasad, Advocate For the Respondents : Mr. Atanu Banerjee, GA Mr. Kaustav Panda, AC to GA Mr. AC to Sr. SC-III
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310/ 01.08.2018 Heard learned counsel for the petitioners and learned counsel for the respondents.
2. Since the issues involved in all the writ petitions are same and similar, they are being disposed of by this common order.
3. The petitioners have approached this Court with a common prayer for quashing the Memo No. 1301 dated 16.10.2017 issued by the Regional Deputy Director of Education, South Chhotanagpur Division, Ranchi, whereby the ACP/MACP earlier granted to the petitioners have been revised and it is directed to recover the excess amount paid to the petitioners. Further prayer has been made for a direction upon the respondents to pay the salary as earlier granted and approved by the District Accounts Officer, Ranchi.
4. The facts of the cases lie in a narrow compass. The petitioners are appointed and working as Clerk in the District of Ranchi within the State of Jharkhand and performing their duties to the utter satisfaction of the respondent-authorities. It is the case of the petitioners that vide Notification dated 13.08.1974 issued by Department of Education, Govt. of Bihar, the post of Senior Selection Grade has been prescribed subsequent thereof, vide Memo No. 129 dated 15.01.1977, three posts were also notified viz. (1) Lower Division Clerk (2) Upper Division Clerk (3) Senior Selection Grade and further vide Memo No. 559 dated 08.03.1980, the post of head clerk and super selection grade post were created and the aforementioned hierarchy of the posts is continuing as such and it is neither modified nor repelled till date. It is the further case of the petitioners that Resolution No. 5207/F dated 14.08.2002 was issued by the Department of Finance, Govt. of Jharkhand with regard to the Assured Career Progression Scheme (ACP). In the said Resolution, it was mentioned that where the hierarchy/ Pad Sopan is not available, in such cases 4 ACP was to be given as per the Memo No. 559 dated 08.03.1980, but so far as Muffasil Cadre /Education Department is concerned two posts were made available, which is evident from the Departmental Notification No. 3435 dated 13.08.1974 and Memo No. 559 dated 08.03.1980. Thereafter, the Department of Finance, Govt. of Jharkhand issued the Resolution No. 2714/F dated 21.09.2007 wherein the pay scale of Head Clerk in Muffasil Establishment has been revised to Rs. 5000-150-8000/- in consonance with the recommendation of the Fitment Committee. Pursuant thereto, a clarification was sought by the District Accounts Officer, Ranchi for fixation of pay scale of Grade III employee of Education Department, which was accordingly clarified vide Memo No. 684 dated 21.05.2008 by the Regional Deputy Director of Education, South Chhotanagpur Division, Ranchi wherein, it was clarified that w.e.f. 10.07.2007, the pay scale of Grade III employee of the Education Department shall be fixed as per the hierarchy of their post and the pay of Head Clerk (Senior Selection Grade) shall be fixed in the scale of 5500-9000/-. It is further the case of the petitioners that on completion of 12/24 or 10/20 years of services, they were granted the benefits of 1st/2nd ACP/MACP with effective from due date, which was later on approved by the Divisional Commissioner/ Commissioner, Ranchi and also verified/ authenticated by District Accounts Officer, Ranchi.
The petitioners were working and discharging their duties to the utter satisfaction of all concerned, but all of a sudden, Director, Secondary Education, Department of School Education and Literacy, Govt. of Jharkhand issued a letter vide Memo No. 1018 dated 20.06.2017 regarding verification and examination of ACP/MACP granted to the Divisional Cadre Clerk of RDDE Office, Ranchi and formal show cause were issued to the petitioners 5 with regard to the refixation of ACP/MACP. Pursuant thereto, the petitioners submitted their reply stating therein, that the benefits of ACP has been extended to them on the basis of Resolution No. 2714/F dated 21.09.2007 and the same was approved by the Commissioner/ Divisional Commissioner and also verified/ authenticated by District Accounts Officer, Ranchi and as such, there is no illegality in the fixation of ACP. It is further stated that in case of similarly situated retired persons, their pensions have been fixed by the Office of Regional Deputy Director of Education, South Chhotanagpur Division, Ranchi pursuant to the Resolution No. 2714/F dated 21.09.2007 and the same has been approved and sanctioned by the Accountant General, Jharkhand and they are getting pension accordingly. But in the case of the petitioners, the Regional Deputy Director of Education, South Chhotanagpur Division, Ranchi vide Memo No. 1301 dated 16.10.2017 has re-fixed the pay of the petitioners in the pay scale of Rs. 4500-7000 instead of Rs. 5000-8000/- as admissible under the benefits of 1st ACP and also order of recovery has been passed ignoring the fact that the same has been granted as per the Govt. Resolution No. 2714 /F dated 21.09.2007 and also the fact that the same has got approval by superior authority than him i.e. Commissioner. Aggrieved thereby, the petitioners represented before the respondent-authorities, but no action has been taken by the respondents as yet. Hence, the petitioners have been compelled to knock the door of this Hon'ble Court for redressal of their grievances.
5. Mr. Deepak Kumar Prasad, learned counsel appearing for the petitioners strenuously urges that action of the respondents in issuing letter dated 16.10.2017 is wholly arbitrary, unjust and unsustainable in the eyes of law. Learned counsel further argues that while issuing the impugned order, a 6 direction was given to recover the excess amount paid to the petitioners, ignoring the the fact that the same has been granted as per the Govt. Resolution No. 2714 /F dated 21.09.2007 and also the fact that the same has got approval by superior authority than him i.e. Commissioner. There is no misrepresentation on the part of the petitioners and the benefits of ACP/MACP granted to them is as per the decision of the Divisional Establishment Committee in which RDDE, South Chhotanagpur, Ranchi was Chairman and District Education Officers were also Members, more so the ACP/MACP extended to the petitioners are approved by the Commissioner and the same has been verified by the District Accounts Officer, Ranchi and in such circumstances, junior in rank/ position cannot revert the said benefits without prior approval of the higher authorities. Learned counsel further argues that Regional Deputy Director of Education is not competent to do so without approval of the higher authority. Learned counsel further argues that the no reason has been assigned in the impugned order of withdrawal/ recovery which is against the well settled law that the reasons have to be assigned in the impugned order itself and not supplemented by way of counter-affidavit. The ACP/MACP given to the petitioners was confirmed/approved by the higher competent authority, therefore, the order contained in Memo No. 1301 dated 16.10.2017 is not sustainable in the eyes of law and liable to be set aside. To support his contention, learned counsel for the petitioners places heavy reliance on the judgment passed by this Hon'ble Court in case of Girja Prasad Singh Vs. The State of Jharkhand {W.P.(S) No.637 of 2011} vide order dated 06.10.2017 wherein, it has been held that same authority is not empower to review its own order. As the petitioners are Group C employees and there is no misrepresentation on their part, learned counsel further places reliance on a 7 reported judgment of Hon'ble Apex Court in case of State of Punjab & Ors. Vs. Rafiq Masih (Withwasher) & Ors., reported in (2015) 4 SCC 334.
6. Per contra, counter-affidavit has been filed. Learned counsel for the respondents vehemently opposes the contention of the learned counsel for the petitioners. Learned counsel argues that there are only two types of posts in the cadre. One is the post of basic grade and another is the post of Head Clerk. So the decision of the then, Divisional Committee and the letters of the then, Regional Deputy Director of Education, South Chhotanagpur Division are against the policy decision of the State Government, hence, they are wrong and ab-initio void. Learned counsel justifies the impugned order as the petitioners are taken inflated pay scale for which they are not entitled. The Principal Secretary, Finance Department has also found that the Grade III Employees of Mufasil Cadre except the staff of Collectorate are not entitled for pay scale of Rs. 5000-8000/- and Rs. 5500-9000/- under 1 st and 2nd ACP respectively, rather they are entitled for the pay scale of Rs. 4500-7000/- and Rs. 5000-8000/- under the aforesaid Scheme and the then Screening Committee had no power at all to take decision against the policy decision of the State Government. Learned counsel further argues that if the then Regional Deputy Director, South Chhotanagpur Division, Ranchi can review the earlier decisions made by his predecessor then it is also permissible for the respondent-authorities to review the previous decision that too when it has got direction from the Director, Secondary Education, i.e. the Head of Department, in the matter for making necessary correction in the pay scale, which is not admissible to the petitioners. The petitioners by duping the respondent-authorities managed to get the enhanced pay scale on the basis of wrong facts and have got higher pay scale which were not admissible to them. 8 Learned counsel places heavy reliance on reported Judgment of Hon'ble Apex Court in case of Chandi Prasad Uniyal & Ors. Vs. State of Uttarakhand & Ors., reported in (2012) 8 SCC 417 and in case of Union Territory, Chandigarh & Ors. Vs. Gurcharan Singh & Anr., reported in (2014) 13 SCC 598.
7. Be that as it may, having gone through the rival submissions of the parties and on perusal of records, this Court is of the considered opinion that the cases of the petitioners need consideration. The allegation has been refuted by the petitioners in paragraph Nos. 29 to 31 of the rejoinder dated 13.07.2018. The pay benefits, by way of 1 st and 2nd ACP were given to the petitioners in the year, 2009 itself from retrospective date and after 8 years i.e. in the year, 2017 without giving any ample opportunity of hearing to the petitioners, the impugned order has been passed, which is not permissible in the eyes of law. The benefits were duly recommended by the Regional Deputy Director of Education and also approved by the Commissioner as well as verified by the District Accounts Officer and the same authority i.e. Regional Deputy Director of Education has reviewed the order of his predecessor, which is not permissible in the eyes of law and also because the matter has got approval of the Commissioner, it cannot be reviewed by the officer lower in rank/position i.e. Regional Deputy Director of Education. The pay scale, which the petitioners were drawing for 8 long years and for which they were legally entitled, cannot be subjected to reduction or recovery without giving any ample opportunity of hearing. The allegation levelled in the counter- affidavit is not supported by any document, no reasons have been assigned in the impugned order as on what ground the pay scale granted to the petitioners, by way of 1st and 2nd ACP has been reduced, rather the reasons have been 9 assigned only, by way counter-affidavit. Reasons cannot be supplemented, by way of counter-affidavit, the said proposition of law has been held in case of Commissioner of Police, Bombay Vs. Gordhandas Bhanji, AIR 1952 SC 16, which has been reiterated in case of Mohinder Singh Gill & Anr. Vs. the Chief Election Commissioner, New Delhi & Ors. reported in 1978 Volume 1 SCC, 405.
8. The reliance of the learned counsel for the respondents in the case of Chandi Prasad Uniyal (supra) and in case of Union Territory, Chandigarh & Ors. (supra) is of no help to them as nothing has been brought on record to show any misrepresentation or manipulation on the part of the petitioners. The recommendation was made by the Regional Deputy Director of Education, Ranchi and the same was approved by the Commissioner himself. The petitioners were never posted in the office of District Superintendent of Education, Lohardaga. Once the pay scale has been granted and approved by the Higher Authorities, the same cannot be subject matter of review by the Authority Lower in rank or by the same Authority. It has also been argued by the learned counsel for the respondents that now approval of the Commissioner is not required.But admittedly, it was approved by the Commissioner and Regional Deputy Director of Education, Ranchi was not competent to review the earlier order, which was approved by the Commissioner, rather he could have referred the matter before the Director of Education or other authority higher in rank than the Commissioner. Even if approval was not required, any order visiting with Civil or Evil consequences, cannot be passed without affording ample opportunity of hearing to the concerned employees. Merely issuance of show cause cannot be equated with the cardinal principles of natural justice. Impugned order is silent, nothing has been mentioned 10 regarding the reasons for reducing the pay-scale and order of recovery. The action of the respondents is not tenable in the eyes of law. Hence, the impugned order bearing memo No. 1301 dated 16.10.2017 is fit to be quashed and set aside and is hereby quashed and set aside. Some of the petitioner have already retired, in that matter of the case, order of recovery could have been passed by initiation of proceeding under Section 43 of the Pension Rule. Further the Hon'ble Apex Court in State of Punjab & Ors. Vrs. Rafiq Masih (White Washer) & Ors. [(2014) 4 SCC 334], 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 refer- ence, summarise the following few situations, wherein recov- eries 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 or- der 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 conclu-
sion, that recovery if made from the employee, would be iniq- uitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to re- cover."
9. Though during the course of argument, no document regarding misrepresentation, interpolation or manipulation made on behalf of the petitioners was on brought on record by the respondents, but at a stage when the order has already been delivered by this Court in favour of the petitioners 11 Mr. Atanu Banerjee, learned Government Advocate appearing on behalf of the respondents referring to supplementary counter-affidavit argues that there was misrepresentation and manipulation on the part of the some of the petitioners. The argument is not acceptable in absence of any document, which was never brought on record neither argued.
10. As a result of quashment of the impugned order dated 16.10.2017, the Respondents are directed not to recover any amount from the salary /pension of the petitioners and, if any amount has already been recovered, the same shall be refunded to them, in accordance with law, within a period of six weeks from the date of receipt/ production of a copy of this order.
11. As cumulative effect of the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, this writ petition stands allowed.
( Dr. S.N. Pathak, J. ) punit/-