Jharkhand High Court
Gulab Peter Surein vs The State Of Jharkhand on 12 June, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No.805 of 2020
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Gulab Peter Surein .......... Petitioner.
-Versus-
1. The State of Jharkhand
2. Secretary, Rural Development Department, State of Jharkhand,
Project Building, Dhurwa, Ranchi.
3. Engineer-in-Chief, Rural Development Department (Rural Working
Affairs), Project Building, Dhurwa, Ranchi.
4. Superintending Engineer, Rural Development Department (Rural
Working Affairs), Work Circle, Hazaribagh.
5. Executive Engineer, Rural Development Department (Rural
Working Affairs), Working Circle, Hazaribagh.
.......... Respondents.
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CORAM : HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. Jay Shankar Tiwary, Advocate
For the State : Mr. Manish Kumar, Sr. S.C.II
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Order No.08 Date: 12.06.2023
The present writ petition has been filed for quashing the office
order as contained in memo no.850 dated 26th December, 2019
(Annexure-5 to the writ petition) issued by the respondent no.4,
whereby the promotion granted to the petitioner on the post of
"Tracer" in the year 1994 has arbitrarily been cancelled after lapse of
about eight years of his retirement and it has further been ordered
that his pay scale should be modified as per his original post of
Chainman as well as steps be taken for modification in his pension.
At the outset, learned counsel for the petitioner submits that
similar orders dated 26th December, 2019 issued by the respondent
no.4 have already been set aside by a Bench of this Court in W.P.(S)
No.298 of 2020 (Arun Kumar Vs. The State of Jharkhand & Ors.) and
W.P.(S) no.770 of 2020 (Umesh Kumar Thakur Vs. The State of
Jharkhand & Ors.). Learned counsel for the petitioner also produces
copies of the orders dated 17th October, 2020 passed in the aforesaid
writ petitions.
On perusal of the order dated 17th October, 2020 passed in
W.P.(S) 298 of 2020, it appears that the petitioner of the said case
had challenged the office order dated 26th December, 2019, whereby
the promotion granted to him to the post of junior accounts clerk in
the pay scale of Rs.3050-4590/- was cancelled. The operative part of
the said order reads as under:-
"12. However, in the present case letter no. 335 dated 16.09.1992 was
applicable. At that time it was not required to send letter to the Public
Service Commission. The petitioner has already worked for more than
11 years thereafter this in the light of judgment rendered in
"Kusheswar Nath Pandey Vs. State of Bihar & Ors." reported in
Manu/SC/0837/2013, in which the Hon'ble Supreme Court has held as
under:
"9. Mr. Jain, learned Additional Solicitor General
appearing for the Accountant General drew our attention
to another judgment of this Court in Chandi Prasad Uniyal
and Ors. V. State of Uttrakhand and Ors, reported in
Manu/SC/0656/2012: (2012) 8 SCC 417 and particularly
paragraph 14 thereof which states that there could be
situations where both the payer and payee could be at
fault and where mistake is mutual then in that case such
amounts could be recovered."
In view of the said judgment, it can be said that it is not
misrepresentation on the part of the petitioner. Admittedly, on
complaint of one Manoj Kumar Jha, who has not been selected by the
Establishment Committee and has filed W.P. (S) No. 2004 of 2013
contained in annexure-13 to the rejoinder to the counter-affidavit,
which was dismissed for default and the said action has been taken
against the petitioner. Thus the action on the complaint of Manoj
Kumar Jha is not sustainable in the eye of law in view of the fact that
the writ petition filed by one Manoj Kumar Jha has been dismissed by
the High Court,. The judgment relied by the learned counsel for the
petitioner in "Sitaram Thakur" (supra) is not applicable in the facts and
circumstances of the present case. In that case the petitioner was
terminated who was working on daily wage and the Hon'ble Supreme
Court came to a conclusion that there is no requirement for the
principle of natural justice. In this case petitioner's case was
considered by the Establishment Committee and petitioner has already
worked on the promoted post for more than 11 years. and in that view
of the matter, only it has not been done in this case. Para 64 of
"Sitaram Thakur Vs. The State of Bihar and Others" reported in 1992
SCC Online Pat 347 is quoted here-in-below:
"64. There cannot be any doubt that in absence of stature
or statutory rules, the State may formulate scheme
and/or adopt policy decisions for regularization of its
adhoc employees if they had continued for a number of
years subject to the criteria laid down therefor and
reservation policy of the State."
13. In that view of the matter in the present case only two letters have
been brought on record. The judgment relied on by the learned counsel
for the respondent-State in "Union of India Vs. Dharam Pal FTC"
(supra) relates to seniority between the parties. The Hon'ble Supreme
Court in the case of "Direct Recruit Class-II Engineering Officers Assn.
Vs. State of Maharashtra" reported in (1990) 2 SCC 715. In paragraph
47 of the said Judgment, the Hon'ble Supreme Court .came to the
conclusion which reads as under:
"47. To sum up, we hold that:
(A) Once an incumbent is appointed to a post according to
rule, his seniority has to be counted from the date of his
appointment and not according to the date of his
confirmation. The corollary of the above rule is that where
the initial appointment is only ad hoc and not according to
rules and made as a stop-gap arrangement, the officiation
in such post cannot be taken into account for considering
the seniority.
(B) If the initial appointment is not made by following the
procedure laid down by the rules but the appointee
continues in the post uninterruptedly till the
regularisation of his service in accordance with the rules,
the period of officiating service will be counted.
(C) When appointments are made from more than one
source, it is permissible to fix the ratio for recruitment
from the different sources, and if rules are framed in this
regard they must ordinarily be followed strictly.
(D) If it becomes impossible to adhere to the existing
quota rule, it should be substituted by an appropriate rule
to meet the needs of the situation. In case, however, the
quota rule is not followed continuously for a number of
years because it was impossible to do so the inference is
irresistible that the quota rule had broken down.
(E) Where the quota rule has broken down and the
appointments are made from one source in excess of the
quota, but are made after following the procedure
prescribed by the rules for the appointment, the
appointees should not be pushed down below the
appointees from the other source inducted in the service
at a later date.
(F) Where the rules permit the authorities to relax the
provisions relating to the quota, ordinarily a presumption
should be raised that there was such relaxation when
there is a deviation from the quota rule.
(G) The quota for recruitment from the different sources
may be prescribed by executive instructions, if the rules
are silent 15 on the subject.
(H) If the quota rule is prescribed by an executive
instruction, and is not followed continuously for a number
of years, the inference is that the executive instruction
has ceased to remain operative.
(I) The posts held by the permanent Deputy Engineers as
well as the officiating Deputy Engineers under the State
of Maharashtra belonged to the single cadre of Deputy
Engineers.
(J) The decision dealing with important questions
concerning a particular service given after careful
consideration should be respected rather than scrutinised
for finding out any possible error. It is not in the interest
of Service to unsettle a settled position. With respect to
Writ Petition No. 1327 of 1982, we further hold:
(K) That a dispute raised by an application under Article
32 of the Constitution must be held to be barred by
principles of res judicata including the rule of constructive
res judicata if the same has been earlier decided by a
competent court by a judgment which became final."
14. In view of the "Direct Recruit Class-II Engineering Officers Assn"
(supra) the case of the petitioner comes under clause (B) of para 47 of
the said judgment and the Court comes to the to the conclusion that
at the time of appointment/promotion, letter no. 335 dated
16.09.1992 was in force.
15. As a cumulative effect of the discussions made above, the writ
petition is allowed and the impugned order dated 26.12.2019 is
quashed. Pending, I.A., if any, stands disposed of."
In another writ petition i.e. W.P.(S) No.770 of 2020, which was
disposed of on the same day i.e. on 17th October, 2020, a Bench of
this Court also quashed the similar order issued by the concerned
respondent on 26th December, 2019 in following terms:-
"4. Mr. Jay Shankar Tiwary, learned counsel for the petitioner submits
that the petitioner was appointed on 11.12.1974 on the post of
Chainman in the office of Superintending Engineer, Rural Engineering
Organization, working circle, Hazaribagh on 4th grade. After 9 years of
service, a letter dated 2 30.10.1993 has been issued from the office of
respondent no. 4 for promotion or appointment on the post of treasure.
The petitioner has been promoted on the post of chainman grade-2
vide office order dated 21.05.2008. The petitioner retired from the
service on 28.02.2017 from the post of Draftsman grade 2. Vide office
order dated 26.12.2019, the promotion of the petitioner has been
cancelled.
5. Mr. Jay Shankar Tiwary, learned counsel for the petitioner relied on
judgment in the case of "Smt.Normi Topno Versus The State Of
Jharkhand Through Its Secretary, Department Of Health " Reported in
(2007) (4) JLJR 466 (Full Bench). The relevant para 42 and 47 of the
said judgment is quoted here-inbelow:
" 42 It is no doubt true, the Supreme Court held that when
the promotion is ab-initio void, then on that basis,
recovery can be made. It is also true that the power is
vested with the State to recover the excess payment
which was given wrongly or by mistake. But, where the
promotion is said to be ab-initio void or the excess
payment was said to be made on the basis of wrong
calculation or due to the mistake committed in the
department, then, it has to be found out as to how the
promotion could be held to be ab-initio void and how there
was miscalculation or mistake and if it is so, by whom it
was committed and all these things have to be verified
only through the inquiry by giving proper opportunity to
the person concerned, who is likely to be affected by the
conclusion of the inquiry. The conclusion without any
inquiry or finding that there is a pecuniary loss to the
Government due to the misconduct or mistake of
pensioner even without giving opportunity to the person
concerned, would certainly cause prejudice to the said
person.
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."
6. Per contra, Mr. Sreenu Garapati, learned counsel for the respondent-
State submits that the meeting of the Establishment Committee was
held on 31.07.2019 wherein decision was taken that since in a similar
issue in case of Sri Arun Kumar regarding promotion from class IV to
Class III in which case direction was given by the Chief Engineer vide
letter dated 30.01.2012 to take action as per letter dated 17.12.2011
issued by the Department of Personnel, Administrative Reforms and
Rajbhasha, promotion granted to the petitioner as well as to Sri Gutab
Peter Surin be cancelled.
7. The contention of Mr. Sreenu Garapati, learned counsel for the
respondent-State is not accepted in view of the fact that the action
against the petitioner was taken in view of the fact that case of the
petitioner was on the same line as of Arun Kumar (petitioner in W.P.(S)
No. 298 of 2020) and the said W.P.(S) No. 298 of 2020 moved by Arun
Kumar, has been allowed by this Court by order dated 17.10.2020.
8. In view of the judgment of the Full Bench of the Hon'ble Supreme
Court in the case of of "Smt.Normi Topno" (supra) the impugned order
is not sustainable in the eye of law. Accordingly, impugned order dated
26.12.2019 is quashed. The writ petition is allowed. Pending, I.A, if any
stands disposed of. Interim order dated 02.07.2020 is vacated."
In the present writ petition, the petitioner has specifically
averred that he was appointed on the post of Chainman (Class-IV post)
on 11th December, 1974 in the office of the Superintending Engineer,
Rural Engineering Organization, Works Circle, Hazaribagh and he was
subsequently granted promotion on the post of "Tracer" (wrongly
mentioned as "Treasure") vide office order, as contained in memo
no.1443 dated 8th December, 1994. Subsequently, the petitioner
retired from service on 31st May, 2011 from the post of "Tracer",
whereas the impugned order has been issued on 26th December, 2019.
Mr. Manish Kumar, learned Sr. S.C.II, appearing on behalf of
the respondents though contests the case on merit, however, he
accepts the fact that similar orders dated 26th December, 2019 issued
by the respondent no.4 have already been quashed/set aside by a
Bench of this Court in the aforesaid writ petitions.
Having heard learned counsel for the parties and considering
that similar impugned orders dated 26th December, 2019 issued by the
respondent no.4 have already been quashed by a Bench of this Court
in W.P.(S) No.298 of 2020 and W.P.(S) no.770 of 2020, the impugned
order as contained in memo no.850 dated 26th December, 2019 issued
by the respondent no.4 is also quashed.
The writ petition is, accordingly, allowed.
(Rajesh Shankar, J.)
Sanjay/
