Jharkhand High Court

Majhar Baitha vs The State Of Jharkhand Through Its ... on 11 June, 2021

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  IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   L.P.A. No. 783 of 2019
                                with
                     I.A. No. 10951 of 2019
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Majhar Baitha, aged about 65 years, son of Bital Baitha, resident of Xavier Chowk, near K.B. Hostel, At., P.O & P.S. Chaibasa, District West Singhbhum.

                          ...     ... ... Petitioner/Appellant

                       Versus

1.The State of Jharkhand through its Chief Secretary, having its office at Project Building, Dhurwa, P.O. + P.S. Dhurwa, District Ranchi.

2.The Principal Secretary, Building Construction Department, Govt. of Jharkhand, Project Building, Dhurwa, P.O. + P.S. Dhurwa, District Ranchi.

3.The Engineer-in-Chief, Building Construction Department, Govt. of Jharkhand, Project Building, Dhurwa, P.O. + P.S. Dhurwa, District Ranchi.

4.The Chief Engineer, Building Construction Department, Govt. of Jharkhand, Combined Building, opposite Ranchi Municipal Corporation, P.O Kutchhary, P.S. Kotwali, District Ranchi.

5.The Superintending Engineer, Building Construction Department, Govt. of Jharkhand, Chhotanagpur Division, Combined Building, opposite Ranchi Municipal Corporation, P.O Kutchhery, P.S. Kotwali, District Ranchi.

6.The Executive Engineer, Building Construction Department, Building Division, Chaibasa, P.O and P.S. Chaibasa, District West Singhbhum.

7.The Accountant General, Jharkhand, Ranchi, P.O and P.S. Doranda, District Ranchi.

              ...   ....         Respondents/Respondents
                          ----
 CORAM: HON'BLE THE CHIEF JUSTICE
     HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellant : Mr. Nand Kishore Pd. Sinha, Advocate For the State : Mr. Deepak Kr. Dubey, A.C to AAG-II For the A.G. : Mr. Sudarshan Srivastava, Advocate

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Oral Judgment Order No. 06 : Dated 11th June, 2021:

With consent of the parties, hearing of the matter has

been done through video conferencing and there is no

complaint whatsoever regarding audio and visual quality.

I.A. No. 10951 of 2019

2. This Interlocutory Application has been filed for condoning the

delay of 217 days, which has occurred in preferring this appeal.

3. Heard learned counsel appearing for the parties.

4. Having regard to the averments made in this application, we

are of the view that the appellant was prevented by sufficient cause

from preferring the appeal within the period of limitation.

5. Accordingly, I.A. No. 10951 of 2019 is allowed and delay of

217 days in preferring the appeal is condoned.

L.P.A. No. 783 of 2019

6. The instant intra-court appeal is preferred against

order/judgment dated 25.04.2019 passed by learned Single

Judge in W.P. (S) No. 2725 of 2015, whereby and whereunder

the order as contained in letters dated 24.11.2014 and

27.02.2015, by which decision was taken to recover an amount

of Rs. 9,41,396/- out of which Rs. 3,34,700/- has been

recovered from the leave encashment, have been quashed and

set aside and direction has been passed to make payment of

retiral benefit on the basis of "corrected" pay-scale. The writ

petitioner-appellant is aggrieved by the part of order by which

direction has been passed upon the respondents for extending

retiral dues on the basis of "corrected" pay-scale.

7. The brief facts of the case, which are required to be

enumerated herein for proper adjudication of the lis, are as

under:

The appellant-writ petitioner was appointed on

13.09.1977 and after rendering 37 years of service as Accounts

Clerk in the office of Executive Engineer, Building Construction

Department, Chaibasa was retired on 30.06.2014 on attaining

the age of superannuation.

After retirement when the retiral benefit was not extended

to the writ petitioner, he submitted applications on 15.09.2014

and 15.10.2014 before the Executive Engineer, Building

Division, Chaibasa for payment of GPF, Gratuity, Leave

Encashment and Pension but the respondents vide letters dated

24.11.2014 and 27.02.2015 sought for explanation from the writ

petitioner-appellant informing the objection that was raised by

the Audit Team of the Finance Department with respect to

extension of benefit of 1st Time Bound Promotion from

13.09.1987 without passing Departmental Accounts

Examination and further the basis of fixation of higher pay-scale

from 01.04.1981. The said fact was explained by the writ

petitioner-appellant vide his reply dated 01.05.2015 stating that

passing of the Departmental Accounts Examination is not to be

looked into when the writ petitioner has been allowed to be

superannuated from service after rendering 37 years of service

and as such what he was getting the pay-scale at the time of

last working day i.e. on the date of retirement, he is entitled to

be paid the entire pensionary benefits on the basis of that pay-

scale. But the concerned respondent did not accept the

aforesaid reply taken decision for making of recovery of amount

of Rs. 9,41,396/- out of which Rs. 3,34,700/- has been

recovered.

Being aggrieved thereof, the writ petitioner approached

this Court by filing writ petition being W.P. (S) No. 2725 of 2015,

which was disposed of vide order dated 25.04.2019 by which

the decision of the authorities for making recovery as contained

in letters dated 24.11.2014 and 27.02.2015 was quashed and

set aside with a direction upon the respondents to refund the

recovered amount i.e. Rs. 3,34,700 and to pay the retiral dues

to the writ petitioner on the basis of "corrected" pay-scale.

The writ petitioner-appellant being aggrieved with the part

of order by which it has been held to make extend the

pensionary dues on the basis of "corrected" pay-scale has filed

the present intra-court appeal.

8. Mr. Nand Kishore Prasad Sinha, learned counsel for the

writ petitioner-appellant, has submitted that the learned Single

Judge while directing to make payment of the retiral dues on the

basis of "corrected" pay-scale has committed gross illegality as

the learned Single Judge has not appreciated the fact that the

writ petitioner-appellant is entitled to get the retiral benefit on the

basis of pay-scale which he was drawing on the last date of his

service.

It has further been contended that once the order of

recovery has been quashed and set aside by the learned Single

Judge, passing of direction to make payment on the basis of

"corrected" pay-scale cannot be said to be justified.

9. Per contra, Mr. Deepak Kumar Dubey, A.C to learned

A.A.G-II, appearing for the respondents-State has submitted

that so far the contention raised by learned counsel for the writ

petitioner-appellant that the writ petitioner-appellant is entitled to

get the pay-scale on the basis of last pay drawn by him is not fit

to be accepted as if the said part of the order whereby and

whereunder the learned Single Judge has directed to make

payment of the retiral dues on the basis of "corrected" pay-scale

will be quashed and set aside by passing a direction for

payment of retiral benefits on the basis of last pay drawn it will

be nothing but allowing the illegality to be perpetuated as it is

admitted case of the writ petitioner that he did not pass the

Departmental Accounts Examination as required under Rule

157(3)(J) of the Bihar Board's Miscellaneous Rules, 1958

(adopted by the State of Jharkhand).

Further, it is not the case of the writ petitioner that he had

ever submitted any application for exemption from passing of

the Departmental Accounts Examination after completion of 50

years of service or after rendering 25 years of service and,

therefore, once the provision of law stipulates about passing of

Departmental Accounts Examination as under Rule 157 (3) (J)

of the Board Misc. Rules, 1958 and if the writ petitioner had not

passed the Departmental Accounts Examination, anything

contrary to the provision of law if is allowed to be continued will

be nothing but will be allowing the illegality to be perpetuated.

Therefore, the learned Single Judge, after taking into

consideration this aspect of the matter, is correct in passing

direction for making payment of retiral dues on the basis of

"corrected" pay-scale and as such that part of the order may not

be interfered with.

10. We have heard learned counsel for the parties, perused

the documents available on record and also finding recorded by

learned Single Judge in the impugned order.

The admitted fact in this case is that the writ petitioner

retired from service on 30.06.2014 on attaining the age of

superannuation and while he was in service he was granted up-

gradation in pay-scale by way of 1st Time Bound Promotion vide

order dated 17.04.1989 w.e.f. 13.09.1987 and continued to draw

the salary on the basis of up-gradation in pay-scale by virtue of

1st Time Bound Promotion w.e.f. 13.09.1987 till his retirement

i.e. 30.06.2014.

It is also admitted fact that the writ petitioner had not

passed the Departmental Accounts Examination as required

under Rule 157 (3) (J) of the Rules, 1958. However, after his

superannuation, during verification of his Service Book it came

to the knowledge of the Audit Team of Finance Department that

the writ petitioner did not pass the Departmental Accounts

Examination. Thereafter, a show cause notice vide letter dated

24.11.2014 was issued upon the writ petitioner to furnish reply

as to how he was granted 1st Time Bound Promotion without

passing the Departmental Accounts Examination as required

under Rule 157 (3) (J) of the Rules, 1958 otherwise, the excess

payment on account of such up-gradation of pay-scale by virtue

of 1st Time Bound Promotion shall be recovered. Pursuant

thereto, the writ petitioner-appellant submitted reply vide letter

dated 01.05.2015 but being dissatisfied with the reply submitted

by the writ petitioner, an amount of Rs. 3,34,700/- was

recovered out of recoverable amount of Rs. 9,41,396/-.

The writ petitioner's contention is that the learned Single

Judge is not correct in directing the respondents to make

payment on the basis of "corrected" pay-scale as he is entitled

to get the pay-scale, which he was receiving on the last date of

his service meaning thereby his claim is that though he had not

passed the Departmental Accounts Examination as required

under Rule 157 (3) (J) of the Rules, 1958 he is entitled to get

the up-gradation in the pay-scale by virtue of 1st time Bound

Promotion.

11. We, before taking up this issue, deem it fit and proper to

refer provision of Rule 157 (3) (J) of the Rules, 1958, which

reads as under:

157.Rules for the Examination in Accounts. -

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3.(J).(a) Any clerk, who has not passed the preliminary examination in Accounts, will be neither confirmed nor be allowed to cross the efficiency bar;

(b) A clerk, who has not passed the final examination, will not be promoted to the selection grade;

(c) In case of non-availability of senior clerk, finally passed in Accounts Examination, any junior clerk, having passed the final Accounts Examination may be temporarily promoted to the Selection Grade;

Provided that the junior clerk temporarily promoted to the selection grade shall be reverted to the post of clerk if the clerk senior to him passes the final Accounts Examination within two years from the date of his first supersession and is promoted with effect from any date within the said two years, otherwise the senior clerk would be treated junior to all the clerks promoted to the selection grade prior to him.

The provision of Rule 157 (3) (J) fell for consideration

before the Division Bench of Hon'ble Patna High Court in

Mohammad Shamsuddin & Ors Vs. State of Bihar & Ors

[1983 PLJR 347], wherein the question has been answered in

the negative holding that after amalgamation of the posts of

Lower Division and Upper Division clerks and creation of new

cadre, the clerks are not required to pass the Accounts

examination for promotion to the selection grades.

The aforesaid judgment has been considered by the

larger Bench in Maheshwar Prasad Singh Vs. State of Bihar

[2000 (4) PLJR 262], wherein the judgment rendered in Md.

Shamsuddin's case has been reversed by laying down the

proposition of law that the clerks of the Muffasil offices

could/can not be promoted to the selection grade posts without

passing final examination in Accounts except during the period

between 01.05.1980 and 29.03.1982. Any promotion due to the

clerks during that period, thus, cannot be denied on the ground

that they had not passed the said examination.

The relevant paragraph 16 of the judgment rendered in

the case of Maheshwar Prasad Singh (Supra) is reproduced

hereunder as:

"16.The result of the above discussion is that the clerks of the Muffasil offices could/can not be promoted to the selection grade posts without passing final examination in Accounts except during the period between 1.5.80 and 29.3.82. Any promotion due to the clerks during that period, thus, cannot be denied on the ground that they had not passed the said examination."

This Court while going across the judgment rendered by

the Hon'ble Full Bench of the Patna High Court in Maheshwar

Prasad Singh's case (Supra) has found therefrom that rules

relating to examination in accounts, as contained in Rule 157 of

the Bihar Board's Miscellaneous Rules, 1958 has been dealt

with at paragraph 4.

For ready reference, paragraph 4 of the said judgment is

quoted hereunder as:

"4.The rules relating to examination in accounts are contained in Rule 157 of the Boards Miscellaneous Rules, and the relevant provisions requiring the clerks to pass the examination as condition for his confirmation and promotion is contained in clause (J) of subrule (3) thereof. The said clause has undergone changes from time to time, and having regard to its importance it would be useful to quote the clause as it stood at different times in ex-tenso. The rule/clause, as it originally stood in the Boards Miscellaneous Rules, 1947 (as the Rules were earlier called) was as under:

"No clerk who has not passed the preliminary examination will be allowed to cross the efficiency bar and no clerk who has not passed the final examination will be appointed in the Upper Division.

The rule was amended by correction slip no.5 dated 14.3.63 and correction slip no.6 dated 23.8.63 and so amended, it reads as under:

"No clerk who has not passed the preliminary examination will be allowed to cross the efficiency bar and no clerk who has not passed the final examination will be appointed in the Upper Division." When no clerk having passed the final examination in accounts is available to fill up any Upper Division post, the U.D. post may be kept in abeyance and a clerk in the Lower Division employed against it until a clerk having passed the final examination is available again when the Upper Division post should be revived."

The rule was again amended vide correction slip no.30 dated 29.3.82. The English text of the said amended rule is not available in the records. As English text of the rule in its earlier forms has been quoted, I would give a translation of the Hindi text as under:

It will be essential for the clerks to pass the preliminary examination in accounts for crossing the Efficiency Bar or confirmation and the final examination in accounts for promotion to the selection grade. When no clerk having passed the final examination in accounts is available to fill up any selection grade post, then the Selection Grade post may be kept in abeyance and a senior clerk may be kept on that post in his scale by the appointing authority until a clerk having passed the final examination is available. On such examination pass clerk becoming available he may be confirmed in the selection grade post.

The clause was amended yet again, this time under proviso to Article 309 of the Constitution of India, vide Statutory Order 431 dated 29.4.85 as under:

"(a) Any clerk, who has not passed the preliminary examination in Accounts, will be neither confirmed nor be allowed to cross the efficiency bar;

(b) A clerk, who has not passed the final examination, will not be promoted to the Selection Grade; (c) In case of non-availability of senior clerk, finally passed in Accounts Examination, any junior clerk, having passed the final Accounts Examination may be temporarily promoted to the Selection Grade :

Provided that the junior clerk temporarily promoted to the Selection Grade shall be reverted to the post of clerk if the clerk senior to him passes the final Accounts examination within two years from the date of his first supersession and is promoted with effect from any date within the said two years, otherwise the senior clerk would be treated junior to all the clerks promoted to the Selection Grade prior to him.

Explanation. --- Under proviso to (c), the date of passing the examination of Accounts would be the date on which the examination was held and the post of selection grade held by the junior clerk shall be deemed to be vacant

from that very date for the purpose of promoting senior clerk. But, for the fixation of pay etc. the junior clerk shall be deemed to have been reverted from the date with effect from which the senior clerk will be promoted. The seniority of the reverted junior clerk shall be effective from the date on which he will again be promoted permanently to the Selection grade."

Thus, it is evident that passing of the Departmental

Accounts Examination is mandatory for getting any up-gradation

or promotion in the pay-scale.

Admitted case herein is that the writ petitioner did not

pass the Departmental Accounts Examination as required under

Rule 157 (3) (J) of the Bihar Board's Miscellaneous Rules,

1958.

Further, it is admitted case that he had not submitted any

application for exemption from passing of the departmental

accounts examination after completion of 50 years of service or

rendering 25 years of service; meaning thereby the writ

petitioner cannot be held entitled to get up-gradation under Time

Bound Promotion since he had not passed the Departmental

Accounts examination but the writ petitioner was extended with

the benefit of 1st Time Bound Promotion w.e.f. 13.09.1987 and

had drawn the salary during his entire service period in the said

enhanced pay-scale and finally retired from service on

30.06.2014.

12. The question, as has been agitated by the writ petitioner

since he was getting the pay-scale on the last date of salary on

the basis of enhanced pay-scale he is entitled to get the

pensionary benefit on the basis of the aforesaid pay-scale, is to

be considered by this Court as to whether if any up-gradation

has been granted in favour of the writ petitioner contrary to the

statutory provision, can it confer any right upon the writ

petitioner to get the said pay-scale, basing upon which his

pensionary benefit/dues is to be extended?

13. It is settled position of law that if there is no

misrepresentation on the part of the employee there cannot be

any recovery, as would be evident from the judgment rendered

in State of Punjab & Ors Vs. Rafiq Masih (While Washer) &

Ors reported in (2015) 4 SCC 334 and the learned Single Judge

referring to the said judgment has reached to the conclusion

that there cannot be any recovery. The said part of the order

though has not been challenged by the State.

14. It is further settled position of law that if any decision has

been taken contrary to the rule, the same cannot be allowed to

be perpetuated.

Reference, in this regard may be made to the judgment

rendered by Hon'ble Apex Court in State of Orissa and Anr.

vs. Mamata Mohanty [(2011) 3 SCC 436], wherein the Hon'ble

Apex Court has been pleased to hold that if any illegality has

been committed, the same is to be rectified the moment it came

to the notice of the authorities and if such exercise would not be

resorted it will amount to perpetuating the illegality.

The Hon'ble Apex Court in the said judgment, at

paragraphs 56 and 57 has been pleased to hold as under:

"56.It is a settled legal proposition that Article 14 is not meant to perpetuate illegality and it does not envisage negative equality. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief. (Vide Chandigarh Admn. v. Jagjit Singh, Yogesh Kumar v. Govt. of NCT of Delhi, Anand Buttons Ltd. v. State of Haryana, K.K. Bhalla v. State of M.P., Krishan Bhatt v. State of J&K, Upendra Narayan Singh and Union of India v. Kartick Chandra Mondal.)

57.This principle also applies to judicial pronouncements. Once the court comes to the conclusion that a wrong order has been passed, it becomes the solemn duty of the court to rectify the mistake rather than perpetuate the same. While dealing with a similar issue, this Court in Hotel Balaji v. State of A.P. observed as under: (SCC p. 551, para 12) "12. ... '2. ... To perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience. In this, we 7 derive comfort and strength from the wise and inspiring words of Justice Bronson in Pierce v. Delameter at p. 18: "a Judge ought to be wise enough to know that he is fallible and, therefore, ever ready to learn: great and honest enough to discard all mere pride of opinion and follow truth wherever it may lead: and courageous enough to acknowledge his errors". (See also Ministry of Information & Broadcasting, In re, Nirmal Jeet Kaur v. State of M.P. and Mayuram Subramanian Srinivasan v. CBI.)

The Hon'ble Apex Court in Union of India & Anr. v.

Narendra Singh [(2008) 2 SCC 750], at paragraph 32 has been

pleased to hold 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."

15. It is further settled position of law that no salary or benefit

is to be extended in favour of the concerned employee contrary

to the right.

Herein the writ petitioner cannot be held entitled to get

the benefit of 1st Time Bound Promotion since he had not

passed the Departmental Accounts Examination and, therefore,

if writ petitioner will be directed to be paid pensionary benefit on

the basis of last pay drawn, fixed by virtue of 1st Time Bound

Promotion, which has been granted even though the writ

petitioner had not passed the Departmental Accounts

Examination, the same will lead to allowing the illegality to be

perpetuated, which is not permissible in law as per the law laid