Jharkhand High Court

Jai Mangal Prasad Sinha vs The State Of Jharkhand on 20 September, 2021

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        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         W.P.(S) No. 1298 of 2015
        Jai Mangal Prasad Sinha                        ..... Petitioner
                                    Versus
        1. The State of Jharkhand
        2. Secretary, Department of Co-operative, Govt. of Jharkhand,
           Project Building, P.O. and P.S: Dhurwa, District: Ranchi
        3. The Co-operative Extension Officer, Department of Co-
           operative, Govt. of Jharkhand, Hazaribagh, P.O.- Hazaribagh
           P.S. Hazaribagh and District: Hazaribagh
                                                  .....   Respondents
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioner : Mr. Anmol Anand, Advocate For the Respondents : Mr. Ashish Kr. Shekhar, Advocate

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06/ 20.09.2021 Heard through V.C.

2. The instant writ application has been preferred by

the petitioner for following reliefs:

"a. For quashing the entries made in Service Book in the year 2014-15 by the respondents wherein the basic pay-scale of the petitioner has been reduced from Rs.6750 to Rs.5300/- ten years after the retirement of the petitioner without giving any notice and the same is violative of principles of natural justice and without following the procedure enshrined in Rule 43-b of the Bihar Service Code and stay of all consequential action pursuant to such entries in Service Book, as alleged by the respondents- authorities."

3. Mr. Anmol Anand, learned counsel for the petitioner

submits that the moot questions involved in this writ

application is "whether the action of the respondents in

reducing the pay scale, that too, after ten years, is sustainable

in the eye of law especially when the pay scale of the petitioner

was reduced without giving any opportunity of being heard".

4. The fact of the case as narrated in the instant writ

application is that the petitioner was appointed on 18.05.1967

on the post of Co-operative Extension Officer in the pay scale

of Rs.105-115/-. Subsequently, the petitioner was granted 1st

'Time Bound Promotion' vide order dated 14.04.1986 and his

pay scale was enhanced to Rs.880-1510/- and since then the

petitioner continuously worked on the said enhanced scale and

retired on 31.01.2002.

At the time of retirement, the basic pay of the

petitioner was fixed @ Rs.6750/- and accordingly his pension

was also fixed. However, in the month of October 2013, the

petitioner was called for signing the final pension papers

wherein it transpired that the petitioner's pay scale was reduced

from Rs.6750 to Rs.5300/-.

Learned counsel contended that this reduction after

retirement of the petitioner is non-est in the eye of law,

inasmuch as, no order can be passed after the age of

superannuation of any employee as the relation between

employer and employee seizes after cessation of the service.

5. A counter affidavit has been filed in this case

wherein at paragraph No.5 it has been stated as under:

"5. It is stated and submitted that the petitioner has not passed the Hindi noting and drafting examination, as such he is not entitled for salary increments. As enshrined in the regulation for Hindi examination issued by notification no.361 dated 15.06.1968. By observing the service book of the petitioner it appears that fixations of pay in the revised up graded scale on dates 01.01.1971, 01.04.1981, 01.01.1986 and 01.01.1996 have not been confirmed during his service period by finance department or by District Account officer because of non passing of Hindi noting/drafting examination. As per instruction of District Account officer, Hazaribagh vide letter no.652 dated 20.11.2013 on account of not passing the Hindi noting/drafting examination pay in the revised scale on dates mentioned above were reduced to initial scales and petitioner's service book was sent to District Accounts officer, Hazaribagh for the confirmation of the same vide letter no.223 dated 23.05.2014. The petitioner's service book was returned by the District Account Officer, Hazaribagh after confirmation of pay fixed in revised initial scales and as per pay fixed in initial scale his pension paper were sent to A.G. Jharkhand and consequently the PPO and GPO of the petitioner was issued by A.G. Jharkhand fixing his final pension.

i. To get information and facts regarding passing the Hindi Examination and confirmation of fixation of pay in the different revised scales, takes, time. ii. The petitioner was in the knowledge of the fact that he has not cleared the Hindi noting and drafting examination. Moreover copies of letter sent to A.R.C.S, Garhwa concerning the above mentioned matter of petitioner such as letter no.130 dated 11.03.2003, No.218 dated 25.03.2004, No.80 dated 14.02.2006 and no.209 dated 18.06.2010 were also sent to petitioner.

iii. The action of respondent was not improper. iv. Not true.

v. It requires no comment."

6. Mr. Ashish Shekhar, learned counsel for the

respondent State submits that since the mistake was committed

by the then employee and during finalization of pension it

transpired that petitioner has not passed the departmental

examination, as such mistake was corrected.

Learned counsel admitted that it was not the fault of

the petitioner for getting higher pay scale and that is the reason

no order for recovery has been made by the respondent and

only the mistake has been corrected and it was only possible

when finalization of pension papers was in process. Thus, the

instant writ application deserves to be dismissed.

7. Having heard learned counsel for the parties and

after going through the averments made in the respective

affidavits and the documents annexed therein it appears from

service book of the petitioner that fixation of pay scale in the

revised upgraded scale pay on 01.01.1971, 01.04.1981,

01.01.1986 and 01.01.1996 were not confirmed during his

service period by the Finance Department because the

petitioner did not pass the Hindi noting / drafting examination

and that is the reason when the same was noticed, the pay scale

of the petitioner was reduced, accordingly.

It is not the case of the petitioner that he was not

required to pass the examination or the grounds for reduction of

pay scale is not legal rather the only contention of the petitioner

is that since he retired from service, as such the respondents

should not have touched his scale by reducing it on any ground.

This contention of the petitioner is not accepted, inasmuch as,

the law is now no more res integra that any mistake which has

been committed by the Department and due to that mistake

some benefit has been given to the employee; then such

mistake can be rectified by the Department.

The issue raised by the petitioner in the instant writ

application was also the subject matter in the case of Indian

Council of Agricultural Research and Another versus T.K.

Suryanarayan and Others reported in (1997) 6 SCC 766

wherein at paragraph 8 the Hon'ble Apex Court has held as

under:

"8. We are, however, unable to accept the submission made by the learned counsel appearing in both these SLPs. Even if in some cases, erroneous promotions had been given contrary to the said Service Rules and consequently such employees have been allowed to enjoy the fruits of improper promotion, an employee cannot base his claim for promotion contrary to the statutory service rules in law courts.

Incorrect promotion either given erroneously by the Department by misreading the said Service Rules or such promotion given pursuant to judicial orders contrary to Service Rules cannot be a ground to claim erroneous promotion by perpetrating infringement of statutory service rules......".

8. The same view has been reiterated by Hon'ble Apex

Court in the case of Union of India and Another Versus

Narendra Singh reported in (2008) 2 SCC 750. Relevant

paragraph 32 of the said judgment is quoted herein below:

"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."

9. By going through the aforesaid judgments it is

crystal clear that any benefit which has been given to any

employee which is contrary to the Service Rules; such mistake

can be rectified in spite of the fact that such employees have

been allowed to enjoy the fruits of the improper promotion. An

employee cannot base his claim for promotion or pay scale

contrary to the statutory Service Rules.

In the instant case, there is no order of recovery, as

such, I find no reason to issue any mandamus with regard to

payment of enhanced pay scale and/or re-fixation of pension

etc.

10. In view of the aforesaid findings and judicial