Patna High Court
Aditya Prasad Singh & Anr vs The State Of Bihar & Ors on 9 February, 2012
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.9281 of 1998
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1. Aditya Prasad Singh , son of late Jagnarayan Singh, resident of Village-Kathaich,
P.S. Mohania, District-Kaimur (Bhabhua)
2. Awadhesh Prasad Singh, son of late Ganesh Singh, resident of Village-
Sonebarsa, P.S. Karahgar, District-Rohtash (Sasaram)
.... .... Petitioner/s
Versus
1.The State Of Bihar
2. Secretary-cum-Commissioner, Water Resources Department, Sicchai Bhawan,
Patna-1.
3. Deputy Secretary, Water Resources Department, Govt. of Bihar, Patna-1.
4. Under Secretary, Water Resources Department, Sicchai Bhawan, Patna-1.
5. Chief Engineer (Mechanical), Water Resources Department, Government of
Bihar, Sicchai Bhawan, Patna-1.
6. Superintending Engineer, (Irrigation Mechanical Circle) Mithapur, Patna.
7. Executive Engineer (Irrigation Mechanical Division) Dehri-on-Sone (Rohtas)
.... .... Respondent/s
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Appearance :
For the Petitioner/s : None
For the Respondent/s : Mr.Ranjan Kr. AC to AAG 4.
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL JUDGMENT
Date: 09-02-2012
On 21.12.2011 no one appeared on behalf of the
petitioners. The case was adjourned for a week by way of last
indulgence. Again on 1.2.2012 no one appeared on behalf of the
petitioners and the case was listed for today under the heading
"For orders". Even today no one appears on behalf of the
petitioner to press this petition. But in all the dates counsel for
the State was present. Today learned counsel for the State is
also present.
2. In this case the petitioners have made a prayer to
2 Patna High Court CWJC No.9281 of 1998 dt.09-02-2012
2/9
promote/appoint them as Supervisors in regular establishment
in the pay scale of Rs.1400-2300 with effect from 6.10.1980
with all consequential benefits and arrear payment and further a
prayer has also been made to implement the order dated
30.9.1993passed in C.W.J.C. No.2145 of 1981.
3. According to the petitioners, they are regular employees in the Water Resources Department, Government of Bihar, Patna. The petitioners were appointed in the muster roll in 1966 and they were appointed as Fitter with effect from 1.7.1968. As in the year 1981 the work-charge establishment was abolished and the services of the petitioner were absorbed in the regular establishment vide memo no. 1846 dated 31.8.1981 and memo no. 1845 dated 31.8.1981 in Class III posts (Annexure-1 series). The department again issued another order vide memo no. 1245 dated 21.12.1984 by which the date of his regularization was shifted to 1.4.1977. In the meantime eight persons were promoted to the grade of Supervisors who were juniors to the petitioners.
4. Being aggrieved by the action of the department, the petitioners filed writ petition bearing C.W.J.C. No. 2145 of 1981 and this Court vide order dated 30.9.1983 (Annexure-3) passed the order in favour of the petitioners directing the 3 Patna High Court CWJC No.9281 of 1998 dt.09-02-2012 3/9 department to find out a suitable posts and promote the petitioners within six months. While deciding the case the Court has recorded the facts which are as follows:
"In the counter affidavit of the State there is no whisper that the petitioners were not found fit or respondents 5 to 12 were found more suitable for posting them as supervisors. In that view of the matter, we direct the Government to consider the claim of the petitioners also within a reasonable time and find out suitable postings for as supervisors within a period of six months from receipt of a copy of this order."
5. In pursuance thereof the petitioners were promoted to the posts of Supervisors in work-charge establishment vide memo no. 1798 dated 27.9.1984 but the promotion was not in a regular establishment rather they were promoted as Supervisors on provisional basis in work charge establishment. The petitioners were not satisfied with the promotion as Supervisors in the work-charge establishment. They claimed that they should have been promoted in a regular establishment as they were always claiming that juniors were promoted to the post of Supervisors in regular establishment but they have been discriminated in not promoting them. They did not join the aforesaid new post rather they have chosen to file contempt petition along with writ petition bearing M.J.C. No.614 of 1984 and C.W.J.C. No.1128 of 1985 respectively. This Court while 4 Patna High Court CWJC No.9281 of 1998 dt.09-02-2012 4/9 disposing of the matter has recorded that assurance was given by the counsel appearing on behalf of the contemners that the petitioners' case for promotion to the posts of Supervisor in the regular cadre would be considered immediately on the occurrence of the vacancy. The department has taken the plea that as there was no vacancy of the Supervisor and as such they could not have been promoted but they gave an undertaking that they would be promoted to post of Supervisor in regular establishment and the Court had hoped that there would be no delay in considering the case of the petitioners.
6. It appears from the record that the Special Executive Officer vide letter no.1067/84-85 dated 24.2.1987 wrote a letter to the Chief Engineer Irrigation Mechanical, Patna in which he had pointed out that the posts of Supervisors were lying vacant and there was no justification to promote the petitioners as Supervisors in the work-charge establishment and stated that the petitioners in pursuance of the order passed by this Court should have been given promotion to the posts of the Supervisor in a regular establishment. The Special Executive officer had also stated that juniors to the petitioners had already been promoted to the higher grade. The matter remained pending and their grievance was not shorted out. 5 Patna High Court CWJC No.9281 of 1998 dt.09-02-2012 5/9
7. The petitioners filed the present writ petition with a grievance that they have been wrongly deprived of the promotion to the posts of the Supervisors in regular establishment though their juniors were promoted to the posts of the Supervisors much earlier. During the pendency of the present writ petition another notification was issued by the Government of Bihar vide memo no. 774 dated 30.7.1999 and memo no.797 dated 30.7.1999 (Annexure-18) whereby the pay scale of the petitioners was reduced and there was an order for recovery of the excess amount paid from them which led to filing of I.A. No.10267 of 1999.
8. This Court vide order dated 30.8.1999 stayed the recovery from the salary of the petitioners vide order dated 30.7.1999 (Annexure-18 series). The claim of the petitioners is that though they were promoted to the posts of the Supervisors in regular establishment but the Government has wrongly treated them in the work charge establishment and they were wrongly granted promotion to the posts of the Supervisors in the work charge establishment. They have claimed that they ought to have posted as Supervisors in the regular establishment but due to malafide intention they were deprived of the aforesaid benefits.
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9. Learned counsel for the State has contended that actually they were in the work charge establishment. They were never brought in the regular establishment as such the action of the Government in promoting them as Supervisors in the work charge establishment can not be said to be illegal. He has further submitted that the petitioners could not have been promoted to the posts of the Supervisors in regular establishment as they were never part of the regular establishment and they could only be given higher pay scale but they can not be promoted to the post of Supervisors in regular establishment. It has been further contended that they were given opportunity to join on the posts of Supervisors in work charge establishment but they have not joined the aforesaid post with impunity with a view to harass the officials of the department. Counsel could not give reply with regard to the facts and events that has taken place in the earlier writ petitions.
10. Admittedly from the order it appears that the department had never taken a plea that the present petitioners were promoted in the work charge establishment though they have accepted that juniors to the petitioners were promoted to the posts of the Supervisors in a regular establishment and have also assured that the petitioners should be compensated in due 7 Patna High Court CWJC No.9281 of 1998 dt.09-02-2012 7/9 course. As petitioners have not appeared to press this writ petition and this Court has no knowledge about the present position of the petitioners as to whether they are still in service or their grievances have been redressed. But one fact is admitted that the pay scale of the petitioners were reduced which does not appear to be wrong as they were fitted in wrong pay-scale but so far the deduction part from their salary is concerned, it appears to be not justified. Nowhere in the counter affidavit the plea has been taken by the State that the scale was given to them either by way of fraud or misrepresentation. Though they have stated the fact that pay scale was given on provisional basis and on that basis excess payment was made, but the fact is that higher pay scale was granted to them not because of act of fraud or misrepresentation by the petitioners rather the scale was given by the respondent of their own action.
11. In the case of Syed Abdul Qadir and others Vs. State of Bihar & ors., reported in (2009) 3 SCC 475,the Hon'ble Supreme Court has held that if the excess payment has been made on account of fraud or misrepresentation on the part of the employee in that circumstances the State is justified to recover the same. In paragraph 57 of the judgment the Hon'ble 8 Patna High Court CWJC No.9281 of 1998 dt.09-02-2012 8/9 Supreme Court has held as follows:
"57. This court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous."
12. In this view of the matter, it is very difficult to sustain the part of recovery orders contained in Annexure 18 series by which the Government has not only reduced the pay scale but has also passed an order for recovery. Only the recovery part from the salary of the petitioners is quashed but the rest part by which the scale of the pay has been rescheduled can not be said to be illegal as it appears that they were wrongly given the scale of pay while implementing the substitute pay scale after acceptance of pay revision committee report.
13. Accordingly this writ petition is partly allowed to the extent of recovery of amount which is quashed. However, even today if the petitioners have any grievance then they can make representation before the authority for redressal of their grievances.
14. With the aforesaid observations and directions this 9 Patna High Court CWJC No.9281 of 1998 dt.09-02-2012 9/9 writ petition is partly allowed to the aforesaid extent.
(Shivaji Pandey, J) High Court Patna, Dated 9th February,2012 Vinay/-