Jharkhand High Court

Om Prakash Gupta vs The State Of Jharkhand on 25 February, 2021

                                  1

         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                          W.P.(S) No.3519 of 2013
                                    -------

                Om Prakash Gupta              ...    ...    Petitioner
                                    Versus
         1.     The State of Jharkhand.

2. The Secretary, Building Construction Department, Government of Jharkhand, Ranchi.

3. The Chief Engineer, Building Construction Department, Government of Jharkhand, Ranchi.

4. The Superintending Engineer, Building Circle Building Construction Department, Hazaribagh.

5. The Executive Engineer, Building Division, Building Construction Department, Hazaribagh.

6. The Accountant General, Jharkhand, Ranchi.

                                              ...    ... Respondents

                                      -------
         CORAM       : HON'BLE MR. JUSTICE DEEPAK ROSHAN
                                      -------
         For the Petitioner    :Mr. Dhananjay Kumar Dubey, Adv.
         For the Res-State     : Mr. Apoorva Singh, A.C. to S.C.
                                 (Mines)-II
         For the Res. No.6     : Mr. Sunil Kr. Agrawal, Adv.
                                     -------

C.A.V. on 17.12.2020                     Pronounced on 25/02/2021

Heard learned counsel for the parties through

V.C.

2. The instant writ application has been preferred

by the petitioner praying therein for quashing and setting

aside the order as contained in Memo No.130 dated

05.02.2013, passed under the signature of respondent no.4

(Annexure-11) whereby the claim of the petitioner in terms

of order dated 18.12.2012 passed in W.P.(S) No.5196 of

2009 by this Court has been rejected and also for

quashing the order contained in Memo No.2199 dated

06.09.2010 (Annexure-5), whereby the benefit of Assured

Career Progression (hereinafter referred as ACP) granted to

the petitioner with effect from 19.09.1990 has been

cancelled and shifted to 24.07.2003 and further order to

recover the amounts in lieu of A.C.P granted to the

petitioner in spite of the fact that the said ACP was

approved by the Divisional Commissioner, Hazaribagh.

3. The facts relevant for disposal of the instant writ

application are that the petitioner was initially appointed in

the month of December, 1971 and superannuated from

service on 31.07.2009. In the light of recommendation of

the Finance Department, the scale of the petitioner has

been fixed in the pay scale of Rs.9300-34,600/- with effect

from 01.01.2006 and also provided increments with effect

from 01.07.2006, 01.07.2007 and 01.07.2008 respectively

vide order dated 20.03.2009 (Annexure-1). The petitioner

has also been provided the last increment with effect from

01.07.2009.

The grievance of the petitioner is that in spite of

the aforesaid decision of Finance Department, the last

increment which was sanctioned and approved vide

Annexure-2, was not provided to the petitioner which was

due on 01.07.2009. As such, the petitioner filed a detailed

representation for providing the entire retiral benefits.

Finally, the petitioner preferred a writ application being

W.P.(S) No.5196 of 2009 praying for a direction upon the

respondents to pay entire retiral benefits, however during

pendency of the said writ application, an order under

Memo No.2199 dated 06.09.2010 has been issued; whereby

the first time bound promotion granted to the petitioner

with effect from 19.09.1990 and the First ACP provided

with effect from 09.08.1999 has been cancelled on the

ground of non-passing of accounts examination.

Consequently, the benefit of first ACP was granted from

24.07.2003 and further it was also directed to recover the

amount in lieu of excess payment made by virtue of first

time bound promotion.

During pendency of the aforesaid writ

application, the pension of the petitioner was also fixed in

the pay scale of Rs.11925/- which is of five years before

and much before the pre-revised scale. Further, vide order

dated 28.05.2010, the respondents have paid the group

insurance amount.

The petitioner assailed the impugned order dated

06.09.2010 in the earlier writ application and this Court

vide its order dated 18.12.2012 quashed the impugned

order; however, the Respondents were given liberty to issue

Notice to the petitioner and pass a fresh order.

4. Mr. Dhananjay Kumar Dubey, learned counsel

for the petitioner submits that the petitioner had earlier

moved before this Court being W.P.(S) No.5196 of 2009

challenging the impugned order dated 06.09.2010, whereby

the claim of the petitioner has been rejected and the

benefits of First ACP; which was granted to the petitioner

with effect from 19.09.1990, was shifted to 24.07.2003 and

the excess amount already paid was directed to be

recovered. The said writ application was disposed of vide

order dated 18.12.2012 by quashing the impugned order

dated 06.09.2010, however a liberty was granted to the

respondents to issue fresh show-cause notice to the

petitioner and pass a fresh order.

Learned counsel strenuously contented that

when the impugned order was quashed by this Court in

W.P.(S) No.5196/09 then the respondent authority instead

of passing the new order/fresh order has revived the earlier

impugned order as if the respondents were sitting in

appeal. He contended that the last line of the impugned

order dated 05.02.2013 reads as "in view of the aforesaid

facts and circumstances the Office Order under Memo No.

2199 dated 06.09.2010 will be applicable from the date of

issue". Meaning thereby to say, that though the impugned

order which was quashed by this Court was revived by the

respondent authority; though the only liberty which was

given by this Court was to pass a fresh order.

The petitioner further argued that the only

ground which was taken by the respondent was that the

petitioner had not passed the accounts examination though

the time bound promotion which was given earlier was duly

approved by the competent authority vide order dated

30.04.2008. Thereafter the first time bound promotion has

already been provided by order dated 23.09.1995. Further,

the petitioner had already passed first and third paper

much earlier and since departmental examination has been

held in between 1997-98, hence the petitioner has been

exempted from appearing in accounts examination which is

evident from letter dated 24.07.2003 (Annexure-8).

He further contended that the issue of non-

passing of accounts examination has already been settled

by various judgments. He referred to the judgment passed

by this Court in the case of Nand Mishra Vs. The State of

Jharkhand & Ors. reported in 2003 (2) JCR 343 (jhr),

wherein this Court has held that on account of non-passing

of accounts examination, the promotion and the benefits

which has been given earlier cannot be cancelled. He

further referred the judgment passed in the case of Bhola

Nath Pattanayak Vs. The State of Jharkhand & Ors.

reported in 2004(1) JLJR 306 wherein at para-3, the

Court has held that the ground of non-passing of Hindi

Noting and Drafting examination, is considered as wrong in

view of the direct decision on this point in the case of Lala

Devendra Prasad Vs. The State of Bihar and Ors. reported

in 2000(1) PLJR 228 wherein it has been held that for time

bound promotion, there is no requirement of passing of

departmental examination.

Mr. D. K. Dubey concluded his argument by

submitting that when the earlier impugned order was

quashed and a liberty was given to the respondents then

the respondents would have initiated proceeding under

Rule 43(b) of Bihar Pension Rules as no recovery can be

made by any person without initiation of any proceeding as

stipulated in the rules.

Relying upon the aforesaid judgments and

submissions, learned counsel for the petitioner submits

that the impugned order is fit to be quashed and set aside

and also the amount which has been recovered may be

directed to be refunded to the petitioner along with

statutory interest.

5. Mr. Apoorva Singh, learned counsel for the

respondent-State submits that the petitioner is not entitled

for any relief because the service book of the petitioner was

sent to the District Accounts officer, Hazaribagh for

checking of the first time bound promotion. The D.A.O,

Hazaribagh vide its letter dated 10.01.2004 returned his

service book to Building Construction Circle, Hazaribagh

with objection that aforesaid first time bound promotion

was given to the petitioner was not valid. The Building

Construction Circle, Hazaribagh sent the service book to

the Executive Engineering Building Division, Koderma to

follow the instructions given by D.A.O, Hazaribagh.

Learned counsel for the respondent further

submits that the said letter dated 16.01.2004 should have

been in the personal file of the petitioner but surprisingly it

was not available in his personal file and if any action

would have been initiated in January, 2004, the date of the

first time bound promotion would have been corrected from

the date of exemption to the date of passing of

departmental accounts examination.

Relying upon the aforesaid facts, learned counsel

submits that the petitioner has committed

misrepresentation and fraud, who the then was dealing

clerk and custodian of his personal file.

In this view of the matter, the action of the

respondents is just and proper and the instant writ

application should be dismissed.

6. Having heard learned counsel for the parties and

after going through the documents available on record and

the averments made in the respective affidavits; it appears

that the petitioner was appointed in the year 1971 and

retired on 31.07.2009. Thereafter vide memo no.2199 dated

06.09.2010 the order has been passed by the respondents

whereby first time bound promotion given to the petitioner

with effect from 19.09.1990 and first ACP with effect from

09.08.1999 has been cancelled and it has been shifted with

effect from 24.07.2003 for grant of benefit of first ACP on

the ground that the petitioner had not passed the

departmental accounts examination and the said decision

was taken in terms of meeting dated 15.01.2010.

It further appears that the said order was

challenged by the writ petitioner in W.P.(S) No.5196 of

2009, which was disposed of by quashing the order dated

06.09.2010 on the ground that the petitioner was not given

any notice before changing the date of grant of ACP/time

bound promotion prior to the date of passing the impugned

order. However, the respondents were given liberty to issue

fresh show cause notice to the petitioner within 30 days

calling explanation and take a final decision on the show-

cause so issued and explanation furnished within next 60

days.

7. At this stage it is pertinent to mention here that

while disposing of the earlier writ application, this Court

only granted liberty to the respondents to issue fresh show

cause notice but it never exempted the respondents to

bypass statutory provisions under law; meaning thereby to

say, after retirement there is no relationship of employer

and employee as such no recovery can be made from the

retiral benefit without following procedure of law as

provided under Rule 43(b) of Bihar Pension Rules.

8. From the impugned order it appears that there is

allegations of misrepresentation as well as keeping the

personal file in his own custody. In this regard it is

necessary to state certain facts that in terms of the

recommendation of the Finance Department the scale of

the petitioner had been fixed in the pay scale of Rs.9300-

34,600/- with effect from 01.01.2006 and the petitioner

had also been provided the last increment with effect from

01.07.2009. As such from perusal of the Annexure; it

cannot be said that there is some interpolation or

manipulation. The ground of misrepresentation or

suppression has been taken by the respondents in their

supplementary counter affidavit at Paragraph nos. 7, 8, 9

and 10 which is quoted herein below:-

"7. That when the service book of the petitioner was sent to the District Accounts Officer, Hazaribagh for checking of the first time bound promotion and first ACP which was given to him with condition that he would have passed the Departmental Accounts Examination. The DAO, Hazaribagh vide his letter no.51 dated 10.01.2004 returned back his service book to Building Construction Circle, Hazariabgh with objection that aforesaid first time bound has been given to Mr. Gupta is not valid/applicable with other necessary instruction.

8. That the Building Construction Circle Hazaribagh returned back his service book to follow the instructions given by D.A.O, Hazaribagh to the office of Executive Engineer Building Division, Koderma vide his Office Memo. No.51 dated 16.01.2004.

9. That the Memo No.51(WE) dated 16.01.2004 of S.E Building Construction Circle, Hazaribagh should have been in the personal file of the petitioner which is surprisingly not available in the personal file of which he was the custodian.

10. That had the petitioner initiated action on this matter in January, 2004 through his personal file, his first time bound promotion would have been corrected from his date of exemption from passing the departmental account examination i.e. 24.07.2003."

At the cost of repetition, there is no any evidence

of manipulation in the service book of this petitioner. Thus,

on the one hand; no interpolation has been found in any

documents and or the other hand; no departmental

proceeding had ever been initiated for the alleged

misconduct relating to misrepresentation or tampering with

the records or keeping the same at his own custody against

this petitioner in the matter of obtaining the benefit of time

bound promotion and first ACP benefits.

9. It is now well settled principle of law that any

order causing prejudice to a person cannot be passed

without giving him or her an opportunity of hearing and if

any proceeding would have been initiated then certainly the

petitioner would have participated in the said proceeding

and would have given his stand but after retirement there

is no relationship of employer and employee as such,

recovery of retiral dues can be made only under the

provisions of law i.e. under Rule 43(b) of Bihar Pension

Rules. At the cost of repetition, this Court in the earlier writ

application had only given liberty to issue show-cause

notice; that does not mean that the respondents were given

liberty to bypass statutory provisions of law which is Rule

43(b) of Bihar Pension Rule.

In the case of Smt. Normi Topno Vs. The State

of Jharkhand reported in 2008 (1) JCR 381 JHR para-

47.

"47. In view of the above discussions, we arrive at the following conclusion. To sum up:

After retirement, there is no relationship of employer and employee and as

such no recovery can be made from the retrial benefits without following procedure of law as provided under Rule 43(b) of the Bihar Pension Rules. Hence, without fulfilling the conditions under Rule 43(b) and without cancelling the order of promotion after enquiry by the competent authority, pension and other retiral benefits cannot be recovered that too without giving opportunity to the retired employee and without giving any finding with reference to the mis- representation or misconduct on the part of the concerned employee or any other employee merely on the recommendation of audit objection."

10. From the impugned order, it further transpires

that no sanction was also taken from the State Government

in issuing show-cause notice. Though there is some

allegation that the petitioner was a dealing clerk at the

place where his personal file was kept but certainly there

was no interpolation in getting the benefit which was given

much earlier.

11. The only ground of the respondents which can

be sustained in the eye of law is that the Building

Construction Circle, Hazaribagh was rightly objected the

first time bound promotion given to the petitioner and the

service file was returned vide memo no. 51 dated

16.01.2004 but it cannot be said that non taking of any

action by the respondents pursuant to the said objection;

the petitioner is accountable because certainly he was only

a clerk in the office. As such the latches on the part of the

respondents cannot be attributed to this petitioner in the

name of fraud or misrepresentation.

The Hon'ble Apex Court has categorically held

that unless there is fraud or misrepresentation; then only

recovery is permissible. Admittedly, since no proceeding

has been ever initiated, the fraud or misrepresentation

cannot be proved on assumption and presumptions and

the order cannot be passed on surmises and conjecture.

12. Now, coming to the ground with regard to

passing departmental accounts examination; this Court in

the case of S. Naseemuddin Vs. The State of Jharkhand

and Ors. reported in 2014 (4) JLJR 70 has held that

annulling any promotion granted long ago, after such a

long time and that too when exemption had been granted

subsequently coupled with the facts that there was no

fraud or misrepresentation on the part of the petitioner, the

petitioner is entitled for the benefits granted earlier.

Paragraph nos. 9, 11 & 12 of the said judgment is quoted

herein below:-

"9. The facts, which have been noticed hereinabove in respect of the petitioner's service records, are not in dispute. He was granted time bound promotion w.e.f. 1.3.1987 but he had not passed the departmental examination till then.

The petitioner has strongly relied upon the judgments rendered in the case of Lala Devendra Prasad (supra) and Bhola Nath Pattanayak (supra) in support of his contention that passing of departmental examination was not a pre requisite

for grant of such promotion. It is also not disputed that the petitioner was not able to complete the third part of the departmental examination in the year 1997. However, he was granted exemption by a conscious decision taken by the respondents by order dated 28.12.2002 issued by the Personnel and Administrative Reforms Department, Government of Jharkhand on the recommendation of the Principal Chief Conservator of Forest, Jharkhand, Annexure 4. After the said decision the petitioner has been granted promotion in the year 2004 to the post of section officer. It fails to stand to reason that when the exemption was already granted on 28.12.2002 the promotion granted to the petitioner thereafter should not be questioned on the ground that the petitioner did not pass the departmental examination. However, that was not the end of the matter. The respondents chose to grant him the benefit of first and second ACP also by order dated 16.10.2006, Annexure 2 issued by the Personnel and Administrative Reforms Department, Government of Jharkhand. The entire impugned exercise has been done after his retirement on 31.7.2007 by issuance of impugned notice on 23.2.2010. The impugned show cause notice shows that his promotion is invalid for the reason that he was given time bound promotion in 1987 without passing the departmental examination. I am afraid such a ground taken after almost 27 years of the grant of time bound promotion is neither reasonable nor proper in the eye of law, more so when there is no fraud or misrepresentation on the part of petitioner.

11. Further it appears from Annexure 10, which is an information under RTI that the respondents

had found no reason to reconsider the decision of reverting the petitioner to the post of Assistant on the same ground of having not passed the departmental examination when the time bound promotion was granted in the year 1987.

Therefore, in totality, considering the aforesaid facts and circumstances, reasons recorded hereinabove and the judgment rendered by the Hon'ble Supreme Court on similar issues, the impugned action of the respondents in seeking to annul a promotion granted to the petitioner to the post of section officer in the year 2004 cannot be sustained in the eye of law.

12. Accordingly, the said show cause notice dated 23.2.2010 is quashed. Consequently the information obtained under RTI, Annexure 10, also shall be of no effect. Since the petitioner has retired on 31.7.2007 and 6th Pay Revision was implemented w.e.f. 1.2.2006, he would be entitled to the benefit of revision on his post retirement dues as may be admissible along with its arrears in accordance with law. Let the admissible consequential benefits of such pay revision be given to the petitioner within a period of 10 weeks from the date of receipt of a copy of this order.

After perusing the aforesaid judgments it can be

held that the same is applicable in the instant case as in

this case also the petitioner was not at fault for getting the

time bound promotion and first ACP which was given to

him and after so many years the authority woke up that

the time bound promotion was wrongly given and that the

relevant rule are being relied upon and that too after the

petitioner had passed the required examination/had

exempted.

In yet another judgment this Court has dealt

same and similar issue. Paragraph-13 of the Judgment

delivered in WP(S) No.4168/08 and analogous cases is

quoted herein below:-

"13. Having heard the learned counsel for the respective parties at length and on perusal of the records, I am of the considered view that the petitioners in the aforesaid writ applications have been able to make out a case for interference, in view of the following facts and reasons : -

(i) Admittedly, the petitioners are aggrieved by the impugned orders, whereby in some cases, the grant of time bound promotion/ACP have been cancelled and the order of recovery of the payment made on the ground of time bound promotion or ACP has been passed by the respondents even for non-passing of the accounts examination in view of the provisions of 157 (3) (j) of the Bihar Boards' Miscellaneous Rules. Moreover, the respondents have unilaterally passed the impugned order without issuance of any show cause notice or in compliance of the principles of natural justice. Apart from that in some cases, the petitioners have retired from services and the action of the respondents in directing recovery from the salary of the petitioners without resorting to the provisions of Pension Rules or the departmental proceeding cannot be sustained in the eyes of law.

(ii) On perusal of the order passed in C.W.J.C. No. 42 of 1988 (R) in the case of Kedar Prasad Singh-versus-The State of Bihar & Others vide Annexure-10 as well as the order passed in C.W.J.C. No. 1824 of 1995 (R) in the case of Uday Kant Jha and others-versus-The State of Bihar & Others vide Annexure- 11, the Hon'ble Court has been pleased to direct for grant of the time bound promotion without passing of the accounts examination. In C.W.J.C. No. 18015 of 2011, in the case of Pramod Kumar-versus-The State of Bihar & Others and another writ petition vide C.W.J.C. No. 16346 of 2011, in the case of Ashok Kumar and others-versus-The State of Bihar & Others the Hon'ble Court has directed for grant of ACP without passing of the accounts examination and the said decision has been confirmed in L.P.A. No. 1260 of 2012 vide order dated 20.04.2015 by the Hon'ble High Court of Patna.

(iii) It is no more res integra that any order affecting the pay of an employee ought to be passed in compliance to the principles of natural justice but, admittedly, no show cause notice prior to cancelling of the grant of time bound promotion and direction for recovery of the excess amount to the employees has been passed without any show cause notice. On that score alone, the impugned orders are liable to be quashed and set aside.

13. In view of the aforesaid discussions and findings,

the action of the respondents cannot be sustained in the

eye of law and consequently, the impugned order as

contained in Memo No.130 dated 05.02.2013 (Annexure-

11) and the order contained in Memo No.2199 dated

06.09.2010 (Annexure-5) are, hereby, quashed and set

aside and accordingly petitioner is entitled for all

consequential benefits.

If the amount which has been recovered from the

petitioner in terms of the aforesaid impugned order; the

same shall be refunded to the petitioner within a period of

three months from the date of receipt/production of a copy