Jharkhand High Court
State Of Jharkhand And Ors. vs (Smt.) Girish Kumari Prasad And Ors. on 9 March, 2004
Equivalent citations: 2004(52)BLJR1005, [2004(2)JCR524(JHR)]
Bench: P.K. Balasubramanyan, Tapen Sen
ORDER
1. Heard counsel for the appellants and counsel for the first respondent. When the matter came up for admission, since the contesting respondent had appeared, the appeal itself was finally heard with the consent of the parties and it is being disposed off finally by this judgment.
2. The State of Jharkhand and its officers, the respondents in the writ petition, are the appellants in this appeal. The writ petitioner, the contesting respondent, challenged the order dated 20.11.1998 issued by the Joint Director, Industries, Government of Bihar, Patna by which the time bound promotion at the second stage granted to her earlier was cancelled on finding that he had not completed the requisite number of years of service before her retirement. Her case in the writ petition while challenging that order, was only that she had been granted such time bound promotion while in service and she having retired, the same could not be revoked retrospectively. The appellants pointed out that though the writ petitioner had earlier joined service on 16.6.1959, her services were discontinued from 1.5.1968 to 14.3.1972, for a period of 3 years 10 months 13 days. Thereafter she was re-employed only on 14.3.1972 and the number of the years required for enabling her to get time bound promotion, had to be reckoned only with reference to that date. Mistakenly it was re-given without reference to her break in service and it was this error that was sought to be corrected. It was also pointed out that the first time bound promotion which was given to her on erroneous basis was, in fact, modified and her date of time bound promotion was shifted to 15.3.1982 from 10.4.1981 and the writ petitioner had not demur to that correction. It was therefore pointed out that the second time bound promotion could not be given before the year 1997 and since she had attained the age of superannuation before that date, on 30.10.1995 she was not eligible for the second time bound promotion.
3. The learned Single Judge did not accept the contention of the writ petitioner that the break in service should be ignored and she must be treated as being in continuous service during that period. The learned Single Judge held that since the petitioner was in continuous service only from 14.5.1972, she was not entitled to the second time bound promotion. However, the learned Single Judge relied upon a decision of the Supreme Court in Sahib Ram v. State of Haryana, 1995 (Supp) 1 SCC 18, and held that the second time bound promotion could not be cancelled after her retirement, since there was no misrepresentation on her part. According to the learned Judge, the appellants were prohibited from making any recovery of the retiral benefits from the writ petitioner on the ground that certain amounts were paid illegally in pursuance of a second time bound promotion, to which she was not entitled. This part of the judgment is under challenge before us.
4. We must straightaway observe that the principle in Sahib Ram's case (supra) cannot have any application to the case on hand. In this case, the first time bound promotion was given to the writ petitioner with effect from 15.3.1982 after rectifying the date which was earlier assigned as 10.4.1981 on the basis that her service commenced ten years prior to 10.4.1981. By the revised order, she was assigned 15.3.1982 as the date of first time bound promotion on completion often years of service, obviously on the basis that her service should be deemed to have commenced from 14.3.1972. The writ petitioner accepted this position. She could have raised objection to the date when she was in service and she did not for the second time bound promotion, the same date of commencement of service had to be reckoned, the date 14.3.1972 accepted by the writ petitioner. In this situation, the learned Judge was justified in applying the ratio of Sahib Rain's case (supra) to the facts of the present case.
5. That apart, we find that when the matter finally reaches the Accountant General and it is found that some one had been given some thing that is not due, either because of negligence, collusion or fraud, it is the duty of the Accountant General, being the guardian of the finances of the State, to rectify the mistake committed either by omission or by commission by some one in the department. There cannot be any estoppel against seeking to recover an unauthorized payment made to an undeserving person. The fact that some one had made an error in giving a time bound promotion to the writ petitioner when it was no due, could not clothe her with any special right. The rule applicable has to be universally applied. On this basis also, we are not inclined to agree with the decision of the learned Single Judge.
6. Learned counsel for the writ petitioner-respondent argued that there were other persons also who were illegally enjoying such benefits and steps have not been taken for rectifying the situation by recovering the excess amounts paid to them. Learned counsel for the appellants submits that the matter will be looked into and steps will be taken in the case of others where benefits have been given illegally. In this situation, we direct the appellants to take steps for recovery of the amounts from the other persons, if any, who are similarly situated the writ petitioner and who had been paid undeservedly.
7. We. therefore, allow this appeal and set aside the order of the learned Single Judge and dismiss the writ petition. The State authorities will ensure that the pensionary benefits due to the writ petitioner would be disbursed to her expeditiously after making a proper calculation on the basis of our judgment.