Jharkhand High Court
Ganesh Ravidas vs The State Of Jharkhand Through The Chief ... on 9 March, 2021
Equivalent citations: AIRONLINE 2021 JHA 1737
Author: Deepak Roshan
Bench: Deepak Roshan
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.6934 of 2011
(An application under Article 226 of the Constitution of India)
Ganesh Ravidas ..... Petitioner
Versus
1. The State of Jharkhand through the Chief Secretary
2. The Secretary Human Resources Development
Department of the State of Jharkhand
3. The Director of the Primary Education Jharkhand Ranchi
4. The Regional Deputy Director at Dumka
5. The Divisional Commissioner Santhal Pargana Dumka
6. The Deputy Commissioner cum-Chairman of the
District Establishment Committee- Godda.
7. The District Superintendent of Education, Godda
8. The Accountant General of Jharkhand at Ranchi ..... Respondents
With
W.P.(S) No. 3994 of 2011
Ganesh Ravidas ..... Petitioner
Versus
1. The State of Jharkhand
2. The Deputy Commissioner cum-Chairman of the
District Establishment Committee- Godda.
3. The District Superintendent of Education, Godda
4. The Accountant General of Jharkhand at Ranchi ..... Respondents
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For the Petitioner :Mr. Rajeeva Sharma, Sr. Advocate (In both cases) For the Resp.-Accountant General : Mr. S. Srivastava, Advocate (In both cases) For the Respondents-State : Mr. Rohit, AC to AAG-I (In W.P.(S) No.6934/2011) : Ms. Jyoti Nayan, A.C. to G.P.-V (In W.P.(S) No.3994/2011) PRESENT HON'BLE MR. JUSTICEDEEPAK ROSHAN
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By Court: Heard learned counsel for the parties through V.C.
2. Since both these writ applications have been filed by the same petitioner for similar reliefs; as such, both are heard together and being disposed of by this common judgment. 2 W.P.(S) No.3994 of 2011:
3. Mr. Rajeeva Sharma, learned senior counsel for the petitioner does not want to press this application, consequently the same is dismissed as not pressed.
However, the counter affidavit which has been filed by the respondent-Accountant General in this case shall be taken into consideration in W.P.(S) No.6934 of 2011 being similar issue involved.
W.P.(S) No.6934 of 2011:
4. This writ application has been preferred by the petitioner praying therein for quashing the order as contained in Memo No.1822 dated 19.08.2011 (Annexure 14), whereby the promotion which was granted to the petitioner vide Annexure-1 and further amended by giving benefit of promotion w.e.f. 01.04.1991 was cancelled/modified vide order dated 19.08.2011 and an order of recovery was passed vide order dated 26.09.2011.
5. The brief facts of the case lie in a narrow compass. The petitioner was given promotion as Headmaster w.e.f. 01.03.1995. Thereafter, the petitioner filed a representation with a prayer for amendment in his promotional order to the effect that the promotional order shall be w.e.f. 01.04.1991. Thereafter, vide order dated 10.02.2005 issued by the then District Superintendent of Education, Godda, the petitioner has been given promotion as Headmaster w.e.f. 01.04.1991.
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6. At this stage, it is pertinent to mention here that from perusal of the order dated 10.02.2005, it appears that the said decision/order has been passed by the concerned respondent in view of the fact that the writ application being W.P.(S) No.6415 of 2002 was pending before this Court. This finding given in Annexure-7 goes to show that some interim order was passed in W.P.(S) No.6415 of 2002; as such, the record of that case was called for before this Court and it was found that no order has been passed in that case, save and except, the order of withdrawal of the said writ application.
It is also pertinent to mention here that the petitioner had also filed the other writ application being W.P.(S) No.3994 of 2011 for same and similar reliefs which has been withdrawn.
7. The further fact of the case is that when the discrepancy was found by the respondent authority in giving promotion to this petitioner as Headmaster w.e.f. 01.04.1991; then vide order dated 19.08.2011 (Annexure-14), the order dated 10.02.2005 was modified to the extent that petitioner became entitled for the post of Headmaster w.e.f. 01.03.1995. Subsequently, since the petitioner had received extra amount of salary for the post of Headmaster since 1991 itself; as such the extra amount which was paid from 01.04.1991 to 01.03.1995 has been directed to be recovered from the petitioner vide order dated 26.09.2011.
8. Mr. Rajeeva Sharma, learned senior counsel for the petitioner submits that the petitioner was promoted as Headmaster 4 vide Annexure-1. Thereafter, the petitioner submitted his joining as Headmaster at Middle School Sripur Bazar under the district of Godda and filed a representation regarding his promotion as Headmaster w.ef. 01.04.1991 instead of 01.03.1995 relying upon the Government Circular dated 31.03.1979.
He further contended that vide order dated 10.02.2005, the then District Superintendent of Education, Godda on the ground that a writ application was pending before this Court; granted the benefit of promotion as Headmaster since 01.04.1991. However, after a gap of six years the respondents; for the reason best known to them, passed another order in the year, 2011 and that too after retirement of the petitioner as contained in Annexure-14, whereby his promotion has been modified/extended from 01.04.1991 to 01.03.1995 and consequently, the respondents have further directed to recover the amount which has been paid to petitioner.
He further contended that since there is no relationship of employer and employee after retirement of the petitioner; the respondents were having no right under law to pass an order and that too behind back of this petitioner. He concluded his argument by submitting that Annexure-14 and Annexure-16 since passed in contravention to Rule 43B and Rule 139 of Jharkhand Pension Rules; as such, the same should be quashed and set aside and the stay order of recovery passed by this Court vide order dated 12.10.2012 shall be made absolute.
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9. Mr. Sudarshan Srivastava, learned counsel for the Accountant General submits that though the impugned order has been passed after retirement but as per the promotion policy the promotion of the petitioner should be treated from 01.04.1995 itself and further the order granting him promotion w.e.f. 01.04.1991 has been passed by the then District Superintendent of Education is against the Circular of the Government.
He further submits that the petitioner was having every right to file an appeal against the impugned order. However, he fairly submits that though there is no error in the impugned order as per the Circular but recovery of the amount which has already been paid to this petitioner long back is definitely harsh decision.
10. Mr. Rohit, learned counsel for the respondent State relying upon paragraph 4 of the counter affidavit submits that since the promotion order given by the then District Superintendent of Education was not in consonance with the promotion rules and it was passed by the said respondent without approval of the District Education Establishment Committee, Godda which is mandatory as per Bihar Nationalized Elementary School Teachers Promotion Rules, 1993; the respondents have subsequently corrected the mistake which was committed by the then District Superintendent of Education on the ground that the writ application was pending before this Court, as such, no relief can be granted to the petitioner. 6
He further submits that it is a settled principle of law that the mistake cannot continue forever and if at all any mistake which comes to the knowledge of the respondents in future; then certainly the respondent State is having every right to correct its mistake. He defended the impugned order by submitting that the order giving promotion to the petitioner since 01.04.1991 is bad in law; as such, the impugned order should not be quashed.
11. Having heard learned counsel for the parties and after going through the documents annexed with the respective affidavits and the averments made therein, it appears that when the service book and pension paper of the petitioner was forwarded by the District Superintendent of Education, Godda vide his letter No.1930 dated 10.02.2005; the same was returned by the office of Accountant General for clarification. The said letter was responded by the then District Superintendent of Education vide letter No.22 dated 04.01.2011. However, the case was again returned by the office of Accountant General with calculation sheet of excess paid amount due to wrong promotion given to the petitioner as Headmaster w.e.f. 1.04.1991.
12. From record it also appears that the petitioner had earlier filed an application being W.P. (S) No.6415 of 2002 which was subsequently withdrawn on the ground that the same has become infructuous. The record further reveals that the District Education Establishment Committee passed a resolution in its meeting dated 7 04.05.1998 and 13.09.1998 to grant promotion to the Teachers in the post of Headmaster from 01.03.1995 to SC and ST candidates as per provision made in the Promotion Rule, 1993.
On the basis of said resolution passed by the Committee, a letter dated 22.09.1998 was issued by the then District Superintendent of Education, Godda and the petitioner was promoted to the post of Headmaster w.e.f. 01.03.1995. However, vide order dated 10.02.2005; the then District Superintendent of Education without approval of the District Education Committee, Godda extended the benefit of promotion as Headmaster from 01.04.1991 instead of 01.03.1995.
13. The order dated 10.02.2005 (Annexure-7) clearly transpires that same has been passed in view of the fact that one writ application being W.P.(S) No.6415 of 2002 was filed by this petitioner. At the cost of repetition; during course of hearing the record of aforesaid writ application was called for, however, after going through the entire order sheet it transpires that no order, whatsoever, was passed in the said writ application, save and except, the final order of withdrawal. As such, there was no occasion for the then District Superintendent of Education to pass the fresh order (Annexure-7).
Further, the said order was passed without approval of the District Education Establishment Committee, Godda. From Promotion Rule, 1993 it clearly transpires that the power of 8 promotion is vested in the District Education Establishment Committee, as such, the order passed by the then District Superintendent of Education vide Annexure-7 was beyond the Promotion Rule and against the resolution of the District Education Establishment Committee, Godda.
It is only after clarification by the office of Accountant General, the matter was placed before the District Education Establishment Committee and the Committee after verifying the entire service record of the petitioner cancelled the order dated 10.02.2005 granting him promotion w.e.f. 01.04.1991 and modified/extended the promotion of the petitioner as Headmaster w.e.f. 01.03.1995.
Thus, it appears that after clarification the error which was committed by the then District Superintendent of Education, Godda vide Annexure-7 has been rectified and a decision was taken to cancel the promotional letter which was otherwise also beyond jurisdiction and a fresh order was passed, whereby the petitioner was given benefit of promotion w.e.f. 01.03.1995.
14. Now it is a settled law that if any mistake has been committed by the department then that mistake cannot continue forever. Mistakes are mistakes and can always be corrected by following due process of law and it cannot create a right.
In the case of Indian Council of Agricultural research and another versus T.K. Suryanarayn and others reported in (1997) 6 SCC 9 766 it has been held by the Hon'ble Apex Court that if any erroneous promotion is given by wrongly interpreting the Rules, the employer cannot be prevented from applying the rule rightly and in correcting the mistake. The principle that mistakes can be corrected subsequently has been reiterated in the case of Union of India & Anr. vs. Narendra Singh, reported in (2008) 2 SCC 750 wherein at paragraph 32 the Hon'ble Apex Court has held as under:
"32. It is true that the mistake was of the Department and the respondent was promoted though he was not eligible and qualified. But, we cannot countenance the submission of the respondent that the mistake cannot be corrected. Mistakes are mistakes and they can always be corrected by following due process of law. In ICAR v. T.K. Suryanarayan it was held that if erroneous promotion is given by wrongly interpreting the rules, the employer cannot be prevented from applying the rules rightly and in correcting the mistake. It may cause hardship to the employees but a court of law cannot ignore statutory rules."
Now the issue is no more res integra, inasmuch as, if there is any error or discrepancy in calculation in the service book, the same can be rectified subsequently and unjust and illegal things cannot become legitimate and vested right cannot be created due to passage of time.
15. In view of the aforesaid discussions one thing is clear that the error committed by the then District Superintendent of Education by issuing order dated 10.02.2005 (Annexure-7) was non-est in the eye of law as the same was issued without any approval of the District Education Establishment Committee, Godda and was completely dehors the Promotion Rule. Further, there was no any order of this 10 Court in the earlier writ application. As such, the petitioner cannot be benefited by an error committed by one person.
However, it is also a fact that the petitioner has retired and as such, so far as recovery portion is concerned; it is unjust and illegal in view of the catena of judgments. As such, without interfering with the order dated 19.08.2011 as contained in Memo No.1822; the respondents are directed not to recover the amount which has already been paid to the petitioner because the respondent State has failed miserably to demonstrate that any fraud has been committed by the petitioner.
16. In this view of the matter, the subsequent impugned order issued under memo no. 2070 dated 26.09.2011 is modified to the extent that no recovery shall be made from this petitioner and thus, the interim order dated 12.10.2012, is hereby made absolute to the extent that recovery shall not be made from this petitioner. It is clarified that the petitioner is entitled for promotion with effect from 01.03.1995.
17. With the aforesaid observations W.P.(S) No.6934 of 2011 is partly allowed.
(Deepak Roshan, J.) Jharkhand High Court, Ranchi Dated: 9th March, 2021 Pramanik/A.F.R.