Kameshwar Prasad vs The State Of Jharkhand Thr Sec Principal ... on 21 April, 2014

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Jharkhand High Court

Kameshwar Prasad vs The State Of Jharkhand Thr Sec Principal ... on 21 April, 2014

The petitioner has retired on 31.07.2010 after having worked for about 32 years since his initial appointment on 22.08.1978 on the post of Unit Clerk in the respondent Information and Public Relation Department, Government of Jharkhand.

In the present writ petition, he is aggrieved by two orders one dated 09.08.2011 and the another order dated 06.06.2012 issued consequent thereafter being Annexure 6 and 7 wherein benefits of 1st Time Bound Promotion granted w.e.f. 20.08.1988 vide office order no. 89 dated 28.02.1989 and 1st ACP granted w.e.f. 09.08.1999 and 2nd ACP granted w.e.f. 31.11.2002 vide office order dated 06.09.2008 have been cancelled and the petitioner has been granted the benefit of 1st and 2nd ACP w.e.f. 25.10.2007 i.e. the date he has been granted exemption from passing departmental examination by the respondents. Consequent to the cancellation of the earlier orders of Time Bound Promotion and ACP, the scale has also been refixed and excess pay drawn by him earlier has been sought to be recovered.

The petitioner has assailed the impugned order inter alia on the ground that (i) the order granting time bound promotion and ACPs was issued by the Director, Information and Public Relation Department, of the erstwhile Government of Bihar vide Annexure-3 dated 28.02.1989 and by the Director of the same Department, Government of Jharkhand vide Annexure-4 dated 08.09.2008 without any fraud or misrepresentation on his part. (ii) the petitioner had completed 50 years on 31.07.2000 and had also claimed for exemption from passing departmental exam in full consciousness of the respondents which was also granted on 25.10.2007. Therefore, the respondents are not justified in cancelling benefit granted to him after his -2- retirement without any notice or show cause, 22 years earlier in the year 1989 and also w.e.f. 1999 and 2002 in the case of 1 st and 2nd ACP. (iii) it is submitted that the case of the petitioner is fully covered by the judgment rendered by the Hon'ble Supreme Court in similar circumstances in the case of Kusheswar Nath Pandey Vs. State of Bihar & Ors. reported in 2013(12) SCC

580. Learned counsel for the respondent-State has defended the impugned order. It is inter alia submitted that the original grant of time bound promotion was in teeth of circular for such time bound promotion which required passing the departmental exam. It is further submitted that grant of 1st and 2nd ACP was only provisional dependant upon confirmation from the department and upon verification of the petitioner's pay fixation. On being found that these were not in terms of ACP resolution dated 14.08.2002 as the petitioner had neither passed the departmental exam nor obtained exemption before October, 2007, the grant of Time Bound Promotion and ACP have been cancelled and the same has been made effective from the date of exemption from passing the departmental exam i.e. on 25.10.2007, which is proper in the eye of law. Learned counsel for the respondents has also submitted that any drawal of pay/emoluments or allowances in excess are impermissible in law and would be liable to be recovered otherwise it would amount to unjust enrichment of the employee over the State Exchequer. Learned counsel for the respondents has relied upon the Full Bench Judgment of the Patna High Court as also in the case Chandi Prasad Uniyal Vs. State of Uttarakhand reported in 2012(8)SCC 417.

Having heard learned counsel for the parties and having gone through the relevant materials on record, it is apparent that the benefit of Time Bound Promotion was given after completion of 10 years of service w.e.f. 20.08.1988 by an order issued as early as on 28.02.1989 by the Director of the Department itself. In terms of the ACP resolution an employee, who had completed 12/24 years of service without any substantive promotion was eligible for grant of 1st and 2nd ACP. The petitioner was granted such benefits vide order at Annexure-4 dated 08.09.2008 w.e.f. 09.08.1999 and 30.11.2002. It was fully in the conscious knowledge of the respondents that the petitioner had not passed departmental exam by that time -3- and had also crossed the age of 50 years without exemption being granted to him. However, it appears that on the petitioner requests such an exemption has subsequently been granted on 25.10.2007.

Be that as it may, the petitioner retired as such on 31.07.2010 and the impugned order has been issued on 09.08.2011 after his retirement without any notice or show cause to the petitioner. Apparently, these benefits granted about 22 years ago in the year 1989 and w.e.f. 1999 and 2002 have been sought to be revoked in the year 2011 by the respondents. The judgment of the Hon'ble Supreme Court relied upon by the petitioner has been rendered in similar circumstances in a case where the grant of 1st Time Bound Promotion was withdrawn after 11 years without any act of fraud or misrepresentation being established against the said person. It further appears that in the said case the appellant had also passed the departmental exam in the year 2007. The Hon'ble Supreme Court has also considered the judgment rendered by the Hon'ble Supreme Supreme Court in the case of Chandi Prasad Uniyal (Supra) and thereafter come to a conclusion that the appellant was not at fault for grant of such benefit. The benefit of time bound promotion, which was given to him 11 years before, had been cancelled on the basis of relevant rules relied upon by the respondents and that to after appellant had passed the required examination. It is better to quote the opinion of the Hon'ble Supreme Court as it is illustrative on the issue at hand:-

"Heard Mr. Nagender Rai, learned Senior Counsel appearing for the appellant, Mr Arijit Prasad, learned counsel for the State of Bihar and Mr Mohan Jain, learned Additional Solicitor General for Respondent 5. Leave granted.

2. This appeal seeks to challenge the judgment and order rendered by the Division Bench of the Patna High Court in State of Bihar V. Kusheswar Nath Pandey dated 19.09.2012 whereby the Division Bench reversed the judgment of the learned Single Judge of that High Court in Kusheshwar Nath Pandey v. State of Bihar.

3. The facts leading to this case are as under. The appellant herein joined the service under the State of Bihar on 5-5-1979 and on 29-8-1981, he was promoted as a correspondence clerk. An order was subsequently issued by the Finance Department on 13-11-1998 granting him promotion with effect from 1-9-1991 which was a time- bound promotion. Subsequently it was found that this promotion was irregular for not passing a promotional examination prior thereto and therefore the orders were issued on 16-9-2009 and 5-10-2009 for cancelling this time- bound promotion.

4. Being aggrieved by that order, the appellant filed the -4- abovereferred Writ Petition No. 4369 of 2010. The learned Single Judge of the High Court who heard the matter allowed that writ petition. He held that the time-bound promotion granted to the appellant eleven years earlier was not because of any fault or fraudulent act on the part of the appellant, and therefore could not be cancelled. The learned Single Judge allowed that writ petition and set aside the order cancelling his promotion. It is also relevant to note that the appellant had passed the required examination in the meantime in 2007 and had retired on 31-5-2009.

5. Being aggrieved by that order, the respondents herein, filed an appeal which has been allowed by the Division Bench. The Division Bench found that the promotion was not approved by the competent authority and passing of the accounts examination was condition precedent and therefore the decision of the Government to cancel his promotion was a proper one. Being aggrieved by this judgment, the present special leave petition has been filed.

6. Mr. Rai, learned Senior Counsel for the appellant points out that there was no fraud or misrepresentation on the part of the appellant. The appellant was given a time-bound promotion by the Department concerned. If at all the examination was required to be passed, he had passed it subsequently in 2007 much before the cancellation orders were issued in 2009. Mr. Rai relied upon two judgments of this Court in Bihar SEB V. Bijay Bhadur and Purshottam Lal Das V. State of Bihar wherein it has been held that recovery can be permitted only in such cases where the employee concerned is guilty of producing forged certificate for the appointment or got the benefit due to misrepresentation.

7. The learned counsel for the State of Bihar submitted that under the relevant rules passing of this examination was necessary. He referred us to the counter-affidavit of Respondent 1 wherein a plea has been taken that under the particular Government Circular dated 26-12-1985 the amounts in excess are permitted to be recovered. He relied upon Clause (j) of the Government Circular dated 1-4-1980 to the same effect.

8. Mr. Jain, learned Additional Solicitor General appearing for the Accountant General drew our attention to another judgment of this Court in Chandi Prasad Uniyal v. State of Uttarakhand and particularly para 14 thereof which states that there could be situations where both the payer and the payee could be at fault and where mistake is mutual then in that case such amounts could be recovered.

9. In out view, the facts of the present case are clearly covered under the two judgments referred to and relied upon by Mr. Rai. The appellant was not at all in any way at fault. It was a time-bound promotion which was given to him and some eleven years thereafter, the authorities of the Bihar Government woke up and according to them the time- bound promotion was wrongly given and that the relevant rules are being relied upon and that too after the appellant had passed the required examination.

10. In our view, this approach was totally unjustified. The learned Single Judge was right in the order that he has passed. There was no reason for the Division Bench to interfere. The appeal is therefore allowed. The judgment of the Division Bench is set aside. The writ petition filed by the appellant will stand decreed as granted by the learned Single Judge. The parties will bear their own costs."

In the present case, therefore, cancellation of 1st Time Bound Promotion granted to the petitioner w.e.f. 28.08.1988 by an order issued on 28.02.1989 by the Director of the Public Relation and Information Department after his retirement on 31.07.2010 is not proper in the eye of law. The petitioner has -5- also been granted exemption from passing departmental exam on reaching 50 years of age w.e.f. 25.10.2007. The 1st and 2nd ACPs were granted to the petitioner w.e.f. 09.08.1999 and 30.11.2002 in the prescribed scale of Rs. 4500-7000/- and Rs. 5000-8000/- by the office order dated 08.09.2008 issued by the Director of the Public Relation and Information Department, Government of Jharkhand after grant of exemption to the petitioner from passing departmental exam w.e.f. 25.10.2007. The petitioner, therefore, cannot be attributed any fault in the grant of 1st and 2nd ACP. At the same time, the office order dated 08.09.2008, Annexure-4 was provisional in nature and as per Clause-4 thereof, it was subject to confirmation. The department during course of confirmation has found that benefit of ACP was granted from the date prior to the exemption of the petitioner from passing the department exam which was not in-consonance with the Clause-VII of the Finance Department Resolution No. 5207 dated 14.08.2002. Therefore, by the impugned order, the respondents have on one hand chosen to refix the pay scale of the petitioner upon grant of 1st and 2nd ACP w.e.f. 25.10.2007 in the scale of Rs. 5200-20200/- with grade pay of Rs. 2800/- and Rs. 9300-34800/- with grade pay of Rs. 4200/-, on the other hand, they have sought to recover salary paid in excess on account of grant of ACP w.e.f. 09.08.1999 and 30.11.2002 to the petitioner. The order of recovery passed under the office order dated 09.08.2011 is obviously after the retirement of the petitioner and without any notice or show cause. In such circumstances, therefore when the petitioner is not at fault for grant of benefit of 1 st and 2nd ACP from the date anterior to the grant of exemption from passing of the departmental exam made effective from 25.10.2007, the respondents are not justified in ordering recovery of the excess amount paid to him after his retirement and that too without any opportunity or show cause to the petitioner. However, since office order dated 08.09.2008, Annexure-4 granting ACP was provisional in nature and petitioner apparently had been granted exemption from passing the departmental exam w.e.f. 25.10.2007, therefore, refixation of pay scale of the petitioner in the prescribed scale upon grant of such 1st and 2nd ACP from 25.10.2007 cannot be said to be improper in the eye of law. Therefore, the impugned orders contained at Annexure- 6 and 7 dated 09.08.2011 and -6- 06.06.2012 respectively are interfered with to the extent that they seek to recover the amount paid in excess as salary to the petitioner on grant of 1st and 2nd ACP w.e.f 09.08.1999 and 30.11.2002 and also to the extent it annuls benefit of 1st time bound promotion granted on 28.02.1989 w.e.f. 20.08.1988. However, the respondents are justified in refixation of the pay scale of the petitioner w.e.f. 25.10.2007 in the prescribed pay scale after reckoning the date of 1st and 2nd ACP w.e.f. 25.10.2007.

The writ petition is, accordingly, allowed in the manner to the extent indicated hereinabove.

(Aparesh Kumar Singh, J.) Kamlesh/

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Jharkhand High Court