Patna High Court
Ram Bahadur Mochi vs The State Of Bihar on 18 March, 2023
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.3962 of 2022
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1. Ram Bahadur Mochi S/o Luchai Mochi Resident of Kedar Loddge, Post
Office Gali, Punaichak, District - Patna.
2. Amit Kumar Shukla, S/o Late Girijua Shankar Shukla, Resident of Mohalla
- Rajiv Nagar, Road No. 18, Post - Keshari Nagar, P.S. - Rajiv Nagar,
District - Patna.
3. Chandramani Prasad Singh, S/o Lakhan Prasad Singh, Resident of Azad
Path, Gali No. Chandmari Road, P.S. - Kankarbagh, District - Patna.
4. Panchu Prasad, S/o Shivlal Prasad, Resident of Mohalla - Sachidanand
Colony, Kathpul, District - Patna.
5. Uday Kumar Singh, S/o Baleshwar Singh, Resident of Mohalla - Fulwari,
Road No. 23, Babu Nagar, District - Patna.
6. Kailash Murmu, S/o Sukhu Murmu, Resident of Mohalla - Makhdumpur,
Dr. D.P. Tirupati House, Khagaul, District - Patna.
7. Raj Kumar Ram, S/o Nandu Ram, Resident of Mohalla - Ramdayal Path,
Purani Jakkanpur, P.S. - Jakkanpur, District - Patna.
8. Umakant Mishra, S/o Late Rambachhan Mishra, Resident of Mohalla -
Keshopur, Simari Buxar, District - Patna.
9. Basant Lal Khaware, S/o Late Kanhaiya Lal Khaware, Resident of Ekta
Nagar, Western Side Via Khojai Imli, P.S. - Phulwarisharif, District - Patna.
10. Kunkun Kumari, W/o Brajkishore Sharma, Resident of Mohalla - Bhutnath
Road, Shyam Niwas, Shantiniketan, Sampatchak, District - Patna.
... ... Petitioners
Versus
1. The State of Bihar through Principal Secretary, Human Resources
Department, Govt. of Bihar, New Secretariat, Patna.
2. The Chairman, Bihar School Examination Board (Senior Secondary), Budh
Marg, Patna.
3. The Secretary, Bihar School Examination Board, (Senior Secondary) Budh
Marg, Patna.
4. The Deputy Secretary, Bihar School Examination Board, (Senior Secondary)
Budh Marg, Patna.
... ... Respondents
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Appearance :
For the Petitioner : Mr.Chitranjan Sinha, Sr. Advocate
Mr. Kumar Shanu, Advocate
For the BSEB : Mr. Satyabir Bharti, Advocate
Mr. Abhishek Anand, Advocate
For the State : Mr. Amit Bhushan, AC to GP-17
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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL JUDGMENT
Date : 18-03-2023
Patna High Court CWJC No.3962 of 2022 dt.18-03-2023
This writ application has been filed for the following
reliefs:-
"a) For issuance of appropriate writ, order or
direction in the nature of writ of certiorari for
quashing the departmental order contained in memo
Stha Pre 123/2022, Dated 27.01.2022 issued under
the signature of Secretary, Bihar School
Examination Board, Patna whereby the decision to
grant salary for the post of Assistant to the
Petitioners from the date of attaining graduation has
been revoked and it has been directed that in terms
of Rule 22 of the Bihar School Examination Board
Regulation Board Regulation, 1964 the salary be
revised with retrospective effect and excess
payment so made till the period the Petitioners
joined in substantial cadre of Assistant to be
recovered in twenty installments or till realization
of the excess payment whichever is less.
b) For issuance of an appropriate writ, order or
direction in the nature of writ of mandamus
commanding the Respondent authorities to treat
petitioners as Assistant from their date of attaining
graduation degree and to refund the recovery made
from the salary/ pension of the Petitioners with
penal interest.
c) For an ad interim writ, order or direction
staying the operation of the impugned order, which
is illegal and contrary to the law laid down by the
Hon'ble Supreme Court of India in the State of
Punjab & Others Vs. Rafiq Masih & Others
(2015) 4 SCC 334, during the pendency of the
instant writ petition.
d) For any other appropriate writ/writs,
order/orders or direction/ directions which
petitioners deemed entitled to in the light of facts
and circumstances of the case."
Patna High Court CWJC No.3962 of 2022 dt.18-03-2023
Brief facts of the case
2. There are ten petitioners in the present writ petition
who were initially appointed on Class III/ Grade C post of daily
Routine Clerk during the period 1988-1991 in the then Bihar
Intermediate Education Council (hereinafter referred to as the
"Council"). Later on the petitioners were granted conditional
promotion/ absorption on the post of Assistant. The order granting
them conditional absorption as contained in Memo No. 26/95
dated 30.03.1995 is Annexure '1' to the writ application.
According to Annexure '1', the petitioners were granted promotion
on their giving an undertaking that they would obtain the required
qualification of 'graduation' within a period of three years failing
which their absorption shall be cancelled. According to the
petitioners, earlier those Routine Clerks who were having requisite
qualification of graduation had been granted promotion/
absorption to the post of Assistant, therefore, the petitioners were
also considered for the said promotion/absorption.
3. It is their further case that they obtained graduation
degree within the stipulated period of three years and thereby they
fulfilled the condition contained in Annexure '1' to the writ
application.
Patna High Court CWJC No.3962 of 2022 dt.18-03-2023
4. The respondents came out with an office order
contained in Memo No. 827 dated 30.03.2005 by which they
cancelled the absorption of the petitioners. This was challenged
before this Court in CWJC No. 14221 of 2006 which was heard
and disposed of vide order dated 25.07.2007 (Annexure '2'). The
learned Writ Court quashed the office order as contained in Memo
No. 827/05 dated 30.03.2005 and remitted the matter back to the
Bihar School Examination Board (Senior Secondary) to reconsider
the matter and pass an appropriate order in accordance with law as
early as possible. At this stage, it is worth mentioning that during
pendency of CWJC No. 14221 of 2006, the Council was abolished
vide Bihar Intermediate Council Repeal Act, 2007 and in view of
the merger of the Council with the Bihar School Examination
Board (Senior Secondary), Patna (hereinafter referred to as the
"Board"), the Board was allowed to be impleaded as respondent
no. 4 in the said writ application.
5. After the matter was remitted to the Board, the
Secretary of the Board considered the claim of the petitioners but
rejected the same vide a reasoned order contained in Memo No.
154/07 dated 08.11.2007 (Annexure '3'). In the reasoned order, the
Secretary of the Board recorded that one of the petitioners namely
Amit Kumar Shukla was engaged on daily wages on 08.12.1988,
Patna High Court CWJC No.3962 of 2022 dt.18-03-2023
however, there was no office order in this regard. He was
regularised on the post of Routine Clerk vide Memo No. 91 dated
05.10.1991 with effect from 23.09.1991. Except him none of the
other petitioners were engaged on daily wages for a single day.
They were appointed as Routine Clerks in anticipation of post by
the Government. As per Annexure '3', there was no provision for
adjustment/ absorption on the post of Assistant in anticipation of
acquisition of eligibility qualification, therefore, the petitioners
were illegally absorbed as Assistants. This was contrary to the
Government's resolution dated 02.01.1985 wherein the minimum
qualification for the post of Assistant was fixed as Graduation.
6. The petitioners challenged the Memo dated
08.11.2007 (Annexure '3') in CWJC No. 3524 of 2009 and CWJC
No. 1057 of 2009. During pendency of the writ application, the
Board came out with Memo No. 854 dated 12.09.2012 as
contained in Annexure 'A' to the counter affidavit filed on behalf
of the Board. By Annexure 'A', the Board absorbed the petitioners
on the post of Assistant in the light of the report of the Committee
constituted by the Board for the purpose of absorption of the
employees of the erstwhile Council in the service of the Board.
Paragraph '7' of the order as contained in Memo No. 854 dated
Patna High Court CWJC No.3962 of 2022 dt.18-03-2023
12.09.2012 states that this order will be effective from the date of
issuance.
7. It is a matter of record that a copy of the Memo no.
854 dated 12.09.2012 was filed in pending CWJC No. 1057 of
2009 (Amit Kumar Shukla vs. The State of Bihar and Others).
In view of the said office order, learned counsel for the petitioner
sought to withdraw the writ application. It was, however,
submitted that the petitioner is entitled for some more reliefs and
for that he may be permitted to file a detail representation before
the Secretary of the Board. The learned Writ Court while granting
withdrawal of the writ application, permitted the petitioner to
make a detail representation but the Court clarified that if any
representation is filed on behalf of the petitioner before the
respondent no. 3, then the same shall be considered strictly in
accordance with law and shall be disposed of by a reasoned and
speaking order expeditiously.
8. The petitioners made representations as contained in
Annexure 'C series' to the counter affidavit of the Board and
requested the Secretary of the Board to pass a reasoned and
speaking order in the light of order of the learned Writ Court. The
petitioners also requested the Board to make them available the
difference amount of salary for the period 01.04.2005 till the date
Patna High Court CWJC No.3962 of 2022 dt.18-03-2023
they were absorbed on the post of Assistant vide Memo No. 854
dated 12.09.2012. It is not in dispute that after their absorption
vide Memo No. 854 dated 12.09.2012, they started getting their
salary as per the pay scale attached to the post of Assistant.
9. Pursuant to the representations made to the Board, the
Secretary of the Board passed the order dated 25.04.2013 as
contained in Annexure '4' to the writ application. A perusal of
Annexure '4' would show that two reasons have been advanced to
justify payment of the pay scale of the post of Assistant to the
petitioners with effect from the date they obtained their graduation
degree. The first reason is that in Memo no. 854 dated 12.09.2012
(Annexure 'A' to the counter affidavit), the petitioners have been
absorbed on the post of Assistant with effect from the date
mentioned in front of their names. Learned counsel for the
petitioners has admitted in course of argument that this is not
correct as admittedly the Memo No. 854 dated 12.09.2012
(Annexure 'A') nowhere mentions the date in front of the names of
the petitioners as date showing their absorption. The second reason
advanced in Annexure '4' is that in CWJC No. 1057 of 2009, in
the order dated 21.01.2013, a direction has been issued to make
available all the pending payments to the petitioners. Here also it is
admitted that so far as the order dated 21.01.2013 passed in CWJC
Patna High Court CWJC No.3962 of 2022 dt.18-03-2023
No. 1057 of 2009 is concerned, the said order nowhere mentions
by way of a direction to the respondents to make payment. The
only direction is to consider the representation strictly in
accordance with law and the same be disposed of by a reasoned
and speaking order.
10. The fact remains that by virtue of the order dated
25.04.2013 (Annexure '4' to the writ application), the petitioners
have been paid the scale of pay of the post of Assistant with effect
from the date they obtained their graduation degree. In other
words, the date of their attaining the graduation has been treated as
the date of their absorption on the post of Assistant.
11. The Secretary of the Board came out with an office
order contained in Memo No. 3407 dated 14.09.2019 whereby the
Board took a decision that it was not correct on the part of the
Board to confer the benefit of pay scale of the post of Assistant to
10+44 employees of the Board from the date they obtained the
graduation degree even as they were working on a lower post.
This, according to the Board, was contrary to the fundamental
Rule no. 22 of the Board's Service Regulation, 1964. The Board
ordered to fix the pay of those persons with effect from the date
they joined to the post of Assistant. The Board also directed for
recovery of the excess amount received by them in twenty
Patna High Court CWJC No.3962 of 2022 dt.18-03-2023
installments or till the entire recovery is made, whichever is
earlier. The name of these petitioners found place in Annexure '6'.
Vide Paragraph '2' of Annexure '6', the retired employees/
deceased employees and those who were likely to retire within a
period of one year were not subjected to recovery.
12. The order as contained in Annexure '6' to the writ
application was challenged in CWJC No. 22060 of 2019 (Ram
Bahadur Mochi and Others vs. The State of Bihar and Others).
The learned Writ Court directed the respondent authorities to
reconsider the grievances of the petitioners relating to recovery in
the light of the decision of the Hon'ble Apex Court in the case of
State of Punjab and Others vs. Rafiq Masih (White Washer)
(2015) 4 SCC 334 within a period of two weeks.
13. In accordance with the direction of this Court in
CWJC No. 22060 of 2019, the claim of the petitioners were once
again considered, however, rejecting the claim the impugned order
as contained in Memo No. 123 dated 27.01.2022 (Annexure '10' to
the writ application) has been passed by the Secretary of the
Board. The Secretary of the Board has, interalia noted as under:-
(i) In absence of any rule, the ten employees of the
Council who were working as daily Routine Clerk could not have
been given the post of Assistant and the scale of pay of the said
Patna High Court CWJC No.3962 of 2022 dt.18-03-2023
post with effect from the date of their attaining the eligibility
qualification of graduation.
(ii) The petitioners were given a notice to show cause as
to why the payments received by them illegally from the date of
their attaining graduation be not recovered in terms of fundamental
Rule No. 22.
(iii) The petitioners have submitted their show cause but
they have not demonstrated as to how they could have been given
the benefit of post of Assistant without holding the said post and
with effect from the date of their attaining graduation.
(iv) Under Chapter X Rule 15 of the Bihar School
Examination Board Rules, 1964 a provision has been made
whereunder:-
"'Pay' means the amount drawn monthly by a Board servant
as:-
(a) The pay, other than special pay or pay granted in view of
his personal qualifications, which has been sanctioned for a
post held by him substantively or in an officiating capacity, or
to which he is entitled by reasons of his positions in a cadre.
(b) Special pay and personal pay; and
(c) Any other recurring emoluments which may be specially
classed as pay by the board."
14. According to the Board, the employee who holds the
post would be entitled for the pay scale of the same. So far as other
reasons shown in the impugned order are concerned, since some of
them relate to the petitioners in the second writ application being
CWJC No. 1642 of 2021, this Court would deal with the same in
Patna High Court CWJC No.3962 of 2022 dt.18-03-2023
the judgment of the said case. The Board has held that the
judgment of the Hon'ble Supreme Court in the case of Rafiq
Masih (supra) would not be applicable and the same is only by
way of exception in exceptional circumstances. The Board has,
therefore, rejected the replies of the petitioners and directed for
recovery of the excess amount in twenty installments from the
salary and other allowances of the petitioner.
Submissions of the Petitioners
15. Mr. Chitranjan Sinha, learned Senior Counsel for the
petitioners has submitted that the benefits granted to the petitioners
vide Annexure '4' to the writ application cannot be attributed to
any misrepresentation or fraud on the part of the petitioners. It is
his further submission that the petitioners belong to Class III posts
and at this stage, if any recovery as has been ordered is effected, it
is bound to create hardships to the petitioners. It is also his
submission that the case of the petitioners would be squarely
covered by the judgment of the Hon'ble Supreme Court in the case
of Rafiq Masih (supra).
Submissions of the Board
16. Mr. Satyabir Bharti, learned counsel for the Board
has sought to justify the impugned order on the ground interalia
that in this case, the records speak a volume about the manner in
Patna High Court CWJC No.3962 of 2022 dt.18-03-2023
which the petitioners have been initially appointed on the post of
daily Routine Clerk in anticipation of the approval of sanction of
post by the Government. It is submitted that no advertisement
took place for appointment on these posts and all these
appointments were made through backdoor method.
17. Learned counsel has further submitted that it is
difficult to understand as to how a person may be absorbed against
a post in anticipation of his obtaining the requisite qualification
within three years and why such kind of absorption may be
granted. Learned counsel has gone to the extent of submitting that
it is a case of loot of public money whereunder undue benefits
have been conferred upon the petitioners from the date of their
obtaining Graduation Degree even as they were not working as
Assistant.
18. Learned counsel further submits that so far as the
office order dated 08.11.2007 (Annexure '3') is concerned, even as
it was challenged by the petitioners in CWJC No. 3524 of 2009
and CWJC No. 1057 of 2009, the said order was never stayed and
the status of the petitioners continued to be that of a daily Routine
Clerk. They were not working as Assistant during the pendency of
the writ application. Finally they were absorbed vide office order
contained in Memo No. 854 dated 12.09.2012 which was produced
Patna High Court CWJC No.3962 of 2022 dt.18-03-2023
before the learned Writ Court and thereafter the petitioners
withdrew their writ application. As a result of this simple
withdrawal, the order dated 08.11.2007 Annexure '3' remained
intact.
19. Learned counsel further submits that the order as
contained in Annexure '4' has been passed fraudulently inasmuch
as admittedly the two reasons which formed the basis of issuance
of Annexure '4' are wrong and false reasons as those were
mentioned in the order only with an intention to confer undue
benefit to the petitioners. Learned counsel further submits that the
Memo dated 12.09.2012 clearly states that it will be effective from
the date of issuance. This Memo dated 12.09.2012 in so far as it
contains the specific averment as to the date of its' taking effect
was never challenged by the petitioners, therefore, it has attained
finality and the petitioners should be taken to have been absorbed
on the post of Assistant only with effect from 12.09.2012.
20. Learned counsel has further sought to distinguish the
case of the petitioners from the ratio of the judgment in the case of
Rafiq Masih (supra). Attention of this Court has been drawn to
Annexure 'E series' to the counter affidavit which are the
undertakings furnished by the petitioners wherein they have agreed
that if there will be any excess payment on account of difference
Patna High Court CWJC No.3962 of 2022 dt.18-03-2023
of salary from April, 2005 to August, 2012, it will be open for the
respondents to recover the same from their salary/emoluments.
Learned counsel has relied upon the judgment of the Hon'ble
Supreme Court in the case of High Court of Punjab and
Harayana and Others vs. Jagdev Singh reported in (2016) 14
SCC 267 and submits that in the totality of the facts of the present
case, the ratio of the judgment in the case of Rafiq Masih (supra)
would not be applicable. It is submitted that a slight change in the
facts of the case would make a sea difference in the opinion of this
Court. Reliance in this regard has been placed on the judgment of
the Hon'ble Supreme Court in the case of Bharat Petroleum
Corporation & Anr. Vs. N.R. Vairamani & Anr. reported in
(2004) 8 SCC 579.
Consideration
21. Having heard learned senior counsel for petitioners
and learned counsel for the Board as also on perusal of the records,
it is crystal clear that these petitioners were initially inducted on
Class III/ Grade III post of Daily Routine Clerk without there
being any advertisement. The procedures required to fill up Grade
III posts were never followed. Not only this, within a very short
span of time, the petitioners were granted conditional absorption
on the post of Assistant even as they were not holding requisite
Patna High Court CWJC No.3962 of 2022 dt.18-03-2023
qualification of graduation for the post of Assistant. Memo No.
26/95 dated 30.03.1995 (Annexure '1') states that they were
granted promotion on their giving an undertaking that they would
obtain the required qualification of graduation within a period of
three years. This mode and manner of granting absorption is
unknown to service jurisprudence.
22. This Court further finds that the office order
contained in Memo No. 827 dated 30.03.2005 canceling the
absorption of the petitioners was set aside by this Court in CWJC
No. 14221 of 2006 on the solitary ground of violation of principles
of natural justice. The matter was remitted to the competent
authority of the Board to reconsider the matter and pass an
appropriate order. The Secretary of the Board considered the claim
of the petitioners and rejected the same vide a reasoned order
contained in Memo No. 154/2007 dated 08.11.2007 (Annexure
'3'). It is worth reproducing the order dated 08.11.2007
hereunder:-
"fcgkj fo|ky; ijh{kk] lfefr ¼mPp ek/;fed cq) ekxZ] iVuk½
dk;kZy; vkns"k
ekuuh; mPp U;k;ky; iVuk }kjk C.W.J.C. No.-
14221/06 esa fnukad 25-07-07 dks ikfjr vkns"k ds dk;kZUo;u esa
lHkh okfn;ksa ls dk;kZy; i=kad BSEB(SS)143/Estab/07
fnukad 11-10-07 ds }kjk laxr lk{; ;Fkk "kS{kf.kd ;ksX;rk laca/kh
izek.k i=ksa vkfn dh LogLrk{kfjr izfr dh ekax dh xbZA rn~uqlkj
lHkh okfn;ksa us vad i=] iek.k i= vkfn dh Nk;kizfr miyC/k
djk;kA
Patna High Court CWJC No.3962 of 2022 dt.18-03-2023
lHkh okfn;ksa ds ekeysa dh leh{kk djus ds mijkUr
ik;k x;k fd eq[; oknh Jh vfer dqekj "kqDyk dks nSfud
ikjfJfed ij fnukad 08-12-1988 dks j[kk x;k FkkA ijUrq mlds
fy, dk;kZy; vkns"k fuxZr ugha gSA i'kZnh; Kkikad
[email protected]"[email protected]@91 fnukad 05-10-1991 dks 23-09-1991 ds
izHkko ls Jh "kqDyk dks fnup;kZ fyfid ds in ij fu;fer fd;k
x;kA
Jh pUnzef.k izlkn flag dks Kkikad [email protected] fnukad
02-02-90 dks fnup;kZ fyfid ds in ij] 2- mekdkUr feJk dks
Kkikad [email protected] 17-08-88 dks fnup;kZ fyfid ds in ij 3- Jh
caly yky [kokM+s dks Kkikad [email protected] fnukad 05-11-88 dks
fnup;kZ fyfid ds in ij 4- Jherh dqudqu dqekjh dks Kkikad
[email protected] fnukad 02-02-90 dks fnup;kZ fyfid ds in ij 5- Jh
ik¡pw izlkn dks Kkikad [email protected] fnukad 02-02-90 dks fnup;kZ
fyfid ds in ij 6- Jh vfuy dqekj ik.Ms; ¼e`R;q 20-10-2007½
dks Kkikad [email protected] SC fnukad 02-02-90 fnup;kZ fyfid ds in ij
7- Jh jkt dqekj jke dks Kkikad [email protected] SC fnukad 06-12-88 dks
fnup;kZ fyfid ds in ij 8- Jh dSyk"k eqeZ dks Kkikad [email protected]
SC fnukad 27-10-89 fnup;kZ fyfid ds in ij 9- Jh jke cgknqj
eksph dks Kkikad [email protected] SC fnukad 14-09-88 dks fnup;kZ fyfid
ds in ij 10- Jh mn; dqekj flag dks Kkikad [email protected] SC fnukad
02-02-90 fnup;kZ fyfid ds in ij jkT; ljdkj }kjk in l`tu
ds izR;k"kk esa fu;qDr fd;k x;kA Jh "kqDyk dks NksM+dj "ks'k LkHkh
mij vafdr O;fDr;ksa dh lh/kh fu;qfDr fnup;kZ fyfid ds in ij
in l`tu dh izR;k"kk esa gqbZ ;s yksx ,d fnu Hkh nSfud
ikfjfJfed ij dk;Zjr ugha jgsA
lE;~d fopkjksijkUr ;g ik;k x;k fd fcgkj
bUVjehfM,V f"k{kk ifj'kn~ vf/kfu;e 1992 ds izo`r ds le; Hkh
fnup;kZ fyfid dk in jkT; ljdkj ls vuqeksfnr ugha FkkA Li'V
gS fd mDr le; ds izo`r vf/kfu;e ds izko/kkuksa ds izfrdwy
Lohd`r in ugha jgus ij Hkh budh fu;qfDr dh xbZA fcuk fjfDr
ds dh xbZ izekf.kr gSA
bl izdkj dk;kZy; vkns"k Kkikad
BIEC/Adm/26/95 fnukad 30-03-95 }kjk lgk;d ds in ij
;ksX;rk /kkj.k dh izR;k"kk esa nh xbZ "krZk/khu lekatu dk izko/kku
fdlh fu;e ds rgr ugh FkkA bu okfn;ksa dks lfpoky; lgk; ds
fy, fu/kkZfjr osrueku nsrs gq, lgk;d ds in ij lkeatu fd;k
x;k tcfd buds ikl mDr frfFk dks lgk;d ds in ds fy,
visf{kr vgr ,oa fu/kkZfjr ;ksX;rk ¼Lukrd½ ugha FkkA
fnukad 30-03-95 dks lgk;d ds in ij lkeatu ds
le; Jh lgk;d ds in ij fu;qfDr dh vgZrk ,oa ;ksX;rk
Lukrd fu/kkZfjr gksus ds ckotwn Hkh bu okfn;ksa dks lfpoky;
lgk;d ds fy, fu/kkZfjr osrueku nsrs gq, lgk;d ds in ij
voS/k :i ls lkeatu fd;k x;k tcfd buds ikl mDr frfFk dks
lgk;d in ds fy, fu/kkZfjr ;ksX;rk ¼Lukrd½ ugha FkkA jkT;
ljdkj ds ladYi la[;k 84&1 vks0 ,e0 fnukad 02-01-1985 ls gh
lgk;d ds in gsrq U;wure fu/kkZfjr ;ksX;rk Lukkrd fu/kkZfjr FkkA
Patna High Court CWJC No.3962 of 2022 dt.18-03-2023
ekuuh; mPp u;k;ky; iVuk }kjk CWJC No.
14221/06 esa fnukad 25-07-07 dks ikfjr vkns"k ds vkyksd esa iw.kZ
leh{kksijkUr buds nkok dks fof/k lEEkr~ ,oa fu;ekuqdwy ugha ik;k
x;k rnuqlkj lgk;d ds in ij lHkh okfn;ksa dk lkeatu voS/k
ik;k x;k vr% mDr lkeatu vkns"k dks fujLr fd;k tkrk gSA
fo"oklHkktu
[email protected]&
¼vuqi dqekj flUgk½
lfpo
23. The fact remains that the Memo dated 08.11.2007
(Annexure '3') was challenged in CWJC No. 3524 of 2009 and
CWJC No. 1057 of 2009 but during pendency of the writ
applications, no interim order of stay was granted to the
petitioners, therefore, the petitioners remained working as Routine
Clerks. It is stated in Paragraph '9' of the writ application that in
CWJC No. 3524/2009 and CWJC No. 1057/2009, the respondents
authorities agreed to do the needful in the matter and accepted in
their counter affidavit and before the Court that the petitioners
shall be considered Assistant from the date of attaining graduation.
In the light of the said submissions, the petitions were disposed of
as withdrawn but in support of the said statements, the petitioners
have enclosed a copy of Memo dated 08.11.2007 (Annexure '3').
A bare perusal of Annexure '3' would show that it contains a
specific averment as quoted hereinabove that the stand of the
respondent-Board was that the absorption of the petitioners against
the post of Assistant was found illegal. In fact, a perusal of the
Patna High Court CWJC No.3962 of 2022 dt.18-03-2023
order passed by Hon'ble Writ Court in the aforesaid two writ
applications would show that during pendency of those writ
applications, the respondents came out with Memo No. 854 dated
12.09.2012. A copy of the same has been brought on record by the
respondents as Annexure 'A' to their counter affidavit. Annexure
'A' specifically states that " ;g vkns"k fuxZr dh frfFk ls ekuk tk,Xkk"
24. It is this Annexure 'A' which was filed with the
counter affidavit of the Board in CWJC No. 1057 of 2009 (Amit
Kumar Shukla versus The State of Bihar and Ors.) and the Hon'ble
Court has recorded as under:-
"... In view of the aforesaid order dated
12.09.2012, Annexure 'A' to the counter affidavit,
learned counsel for the petitioner seeks permission to
withdraw this writ application. However, he submits
that the petitioner is entitled for some more reliefs, and
for that he may be permitted to file a detail
representation before the Secretary, Bihar School
Examination Board (Senior Secondary), Budha Marg,
Patna.
Permission is accorded.
This application stands disposed as
withdrawn with the liberty aforesaid.
It is clarified that if any representation is
filed on behalf of the petitioner before the respondent
no. 3, then the same shall be considered strictly in
accordance with law and shall be disposed of by a
reasoned and speaking order expeditiously."
Patna High Court CWJC No.3962 of 2022 dt.18-03-2023
So far as CWJC No. 3524 of 2009 is concerned, the
same was listed on 16th July, 2013 and on the said date, learned
counsel for the petitioner sought withdrawal of the writ petition
with a statement that grievances of the petitioner have already
been redressed. The writ petition was dismissed as withdrawn.
25. Neither in Annexure 'A' in front of the names of the
petitioners any date of absorption is indicated nor this anywhere
states that they would be entitled for the benefits of the promotion
to the post of Assistant with effect from the date of their attaining
the graduation. Similarly, the order of this Court as contained in
Annexure 'B' to the counter affidavit of the Board nowhere directs
the respondents to confer benefit of the post of Assistant to the
petitioners with effect from the date of their attaining the
graduation.
26. In the aforementioned background, the office order
dated 25.04.2013 (Annexure '4') to the writ application is to be
looked into. The order as contained in Annexure '4' is being
reproduced hereunder for a ready reference:-
"fcgkj fo|ky; ijh{kk lfefr ¼mPp ek/;fed½ cq) ekxZ]
iVuk
vkns"k
dk;kZy; ds i=kad BIEC/ADM/26/95 fnukad
30-03-1995 ds }kjk ftu 10 dfeZ;ks dks "kÙkkZ/khu lgk;d ds in
ij fn;s x;s lkeatu dks dk;kZy; vkns"k Kkikad
BIEC/827/Estab/05 fnukad 30-03-2005 ds izHkko ls fujLr
djrs gq, lgk;d in ls fn0fy0 in inkour fd;k x;kA
Patna High Court CWJC No.3962 of 2022 dt.18-03-2023
mDr inkour vkns"k ds vkyksd esa izHkkfor
dfeZ;ksa }kjk ekuuh; mPp U;k;ky; iVuk esa ;kfpdk la[;k
CWJC No.- 14421/06 fnukad 25-07-2007 esa nk;j fd;k
x;kA mDr ;kfpdk esa ,d U;k;kns"k ikfjr fd;k x;k ftlesa
okfn;ksa ls nkok laxr lk{;ksa ds lkFk izkIr djrs gq, mldh tk¡p
dj fof/k lEer ,oa fu;ekuqdwy Reasoned and Speaking
order pass fd;k tkuk gSA izcU/ku }kjk tk¡pksijkUr iwoZ esa fuxZr
vkns"k dks lgh ekurs gq, vkns"k esa fdlh izdkj dk ifjorZu ugha
fd;k x;k] dk;kZy; vkns"k Kkikad BSEB (SS)/154/Estb/07
ds }kjk ugh fd;k x;kA
fcgkj ljdkj f"k{kk foHkkx ds ladYi la[;k 413]
fnukad &12-07-2012 ds vkyksd esa ifj'kn~ ¼fujflr½ ds
inkf/kdkjh;[email protected];ksa dks fcgkj fo|ky; ijh{kk lfefr esa
lek;kstu gsrq xfBr dfefV ds izfrosnu ds vuq:i vkosndksa dks
Kkikad LFkk0 iz0 854 fnukad 12-09-2012 ds }kjk lgk;d ds in
ij mDr ladYi esa mYysf[kr izko/kkuksa ds rgr lek;ksftr fd;k
x;kA mYys[kuh; gS fd mDr i=kad lHkh oxZ ds dfeZ;ksa ds uke
ds lkeus vafdr --- frfFk ls lgk;d ekuk x;k gSA iwoZ ls gh
izHkkofr dfeZ;ksa }kjk ;kfpdk la[;k CWJC No. 1057/09
ekuuh; mPp U;k;ky; iVuk esa nk;j fd;k x;k FkkA izHkkfor
dfeZ;ksa dks fnukad 12-09-2012 ls lgk;d in ij dh x;h
lek;kstu ds QyLo:i ekuuh; mPp U;k;ky; iVuk }kjk fnukad
21-01-2013 dks ikfjr U;k;kns"k esa okfn;ksa dks lgk;d in ds
fo:) lHkh izdkj dks yafEcr Hkqxrku dk vkns"k fn;k x;k ;Fkk
izHkkfor dehZ fuEuor~ gSA %&
uke lgk;d in ij lek;kstu dh frfFk
1- mekdUr feJk 15-11-1997
2- Jh jkt dqekj jke 01-01-1996
3- Jh clar yky [kokM+s 01-01-1996
4- Jh dSyk"k eqeZw 01-04-1998
5- Jh ik¡pq izlkn 01-04-1998
6- Jh jkt cgknwj eksph 07-06-1997
7- Jh vfer dqekj "kqDyk 01-04-1996
8- Jh mn; dqekj flag 01-01-1998
9- Jh pUnzef.k izlkn flag 01-04-1996
10- Jhefr dqudqu dqekjh 26-03-1996
ekuuh; mPp U;k;y; }kjk ifjr U;k;kns"k ds vkyksd
esa ,oa i=kad &854 fnukad 12-09-2012 ds vuqlkj vU; dfeZ;ksa dh Hkk¡fr bUgs
Hkh ykHk ns; gksxk
[email protected]&
lfpo
fcgkj fo|ky; ijh{kk lfefr] iVuk "
27. It is evident on a bare perusal of Annexure '4' that
two grounds have been mentioned in the office order to confer
Patna High Court CWJC No.3962 of 2022 dt.18-03-2023
benefits of the post of Assistant to the petitioners with effect from
the date of absorption shown in front of their respective names in
Annexure '4'. The date of absorption shown is the date of attaining
graduation. The first ground is that in the Memo No. 854 dated
12.09.2012, the petitioners have been taken as Assistant with effect
from the date " vLi'V" in front of their respective names. This is a
completely wrong and false statement. The memo dated
12.09.2012 nowhere mentions any such date. It is for this reason
the maker of the office order dated 25.04.2003 has taken help of
the word "vLi'V". This is definitely a fraudulent attempt to
incorporate something which is not there in the office order dated
12.09.2012. Learned Senior counsel for the petitioners has
admitted that what is stated in the office order (Annexure '4') is
not there in the memo dated 12.09.2012. Similarly, the second
ground in Annexure '4' is that this Court in its order dated
21.01.2013 has directed to make payment of the entire arrears of
the post of Assistant to the petitioners. This is another false and
misleading statement made by the framer of the office order dated
25.04.2013. This Court has already quoted the order dated
21.01.2013 passed by the learned Writ Court hereinabove.
28. This Court has, therefore, no iota of doubt that in a
pre-concerted effort and manner the office order dated 25.04.2013
Patna High Court CWJC No.3962 of 2022 dt.18-03-2023
(Annexure '4') was framed resulting in these petitioners getting
the benefit of the post of Assistant taking them to have been
absorbed with effect from the dates mentioned in front of their
names in Annexure '4' which relate back the entitlement to about
16 years. This has resulted in revival of the Memo No. 26/95 dated
30.03.1995 (Annexure '1') whereby the petitioners were granted
conditional absorption to the post of Assistant on their giving an
undertaking that they will obtain graduation degree within a period
of three years. Vide office order dated 25.04.2013 (Annexure '4')
the respondent Board has set at naught the order dated 08.11.2007
(Annexure '3') even as the same was never stayed much less set
aside by the Hon'ble Court and writ applications filed against the
said order was withdrawn by the petitioners. As a result of the
same, the office order dated 08.11.2007 contained in Annexure '3'
remained intact. The office order dated 25.04.2013 (Annexure '4')
has also an effect of modifying the office order dated 12.09.2012
(Annexure 'A' to the counter affidavit) wherein it was clearly
stated that the order shall come into effect from the date of
issuance.
29. This Court also finds from the records that the
petitioners had given undertaking as contained in Annexure 'E
series' to the counter affidavit wherein they have categorically
Patna High Court CWJC No.3962 of 2022 dt.18-03-2023
stated and undertaken that in case they received payment for the
period April, 2005 to August, 2012 in excess to the old and 6 th pay
scale entitlement, the same would be liable to be recovered from
them from their salary/post retiral dues. One of the undertakings is
being reproduced hereunder:-
"fcgkj fo|ky; ijh{kk lfefr] iVuk
?kks'k.kk i=
eSa ,rn~ }kjk ?kks'k.kk [email protected] gw¡ fd ;fn fdlh
dkj.ko"k eq>s vizhy 05 ls vxLr 12 rd dh vof/k dk iqjkus
rFkk 'k'Ve osrueku esa fn0 fy0 ls lgk;d ds in dk vUrj
cdk;s osrukfn vuqekU;rk ls vf/kd jkf"k izkIr gksrh gS rks
bldh olwyh eq>s izkIr gksus okys [email protected] lsokar ykHk vkfn ls
dj yh tk;A
fnukad &27-05-2013 gLrk{kj& jkecgknqj eksph
uke& jke cgknwj eksph
LFkku& iVuk inuke& lgk;d
dk;kZy; dk uke& BSEB (SS), Patna"
30. In the aforementioned background of the facts
situation, this Court has to consider as to whether the impugned
action of recovery from the petitioners is liable to be interfered
with on the principles laid down by the Hon'ble Supreme Court in
the case of Rafiq Masih (supra).
31. It is well settled that every judgment is rendered in
its own facts. In the case of Rafiq Masih (supra) the private
respondents were given monetary benefits consequent upon a
mistake committed by the competent authority concerned in
Patna High Court CWJC No.3962 of 2022 dt.18-03-2023
determining the emoluments payable to them. The Hon'ble
Supreme Court noticed in paragraph '1' of the judgment that on
account of the unintentional mistake, the employees were in
receipt of monetary benefits, beyond their dues. The another
component of the facts were that the employees were not guilty of
furnishing any incorrect information, which had led the competent
authority concerned to commit the mistake of making a higher
payment to the employees. The Hon'ble Supreme Court came to a
finding in paragraph '2' of the judgment that "... It would,
therefore, not be incorrect to record, that the private respondents,
were as innocent as their employers, in the wrongful determination
of their inflated emoluments." (emphasis is mine)
32. In the aforementioned background the Hon'ble
Supreme Court proceeded to consider as to whether all the private
respondents, against whom an order of recovery (of the excess
amount) has been made, should be exempted in law, from the
reimbursement of the same to the employer. The Hon'ble Apex
Court took note of the judicial pronouncements on the subject and
finally concluded in paragraph '18' of the judgment as under:-
"18. It is not possible to postulate all situations of
hardship which would govern employees on the issue
of recovery, where payments have mistakenly been
made by the employer, in excess of their entitlement.
Be that as it may, based on the decisions referred to
Patna High Court CWJC No.3962 of 2022 dt.18-03-2023
hereinabove, we may, as a ready reference, summarise
the following few situations, wherein recoveries by the
employers, would be impermissible in law:
(i) Recovery from the employees belonging to Class III
and Class IV service (or Group C and Group D
service).
(ii) Recovery from the retired employees, or the
employees who are due to retire within one year, of the
order of recovery.
(iii) Recovery from the employees, when the excess
payment has been made for a period in excess of five
years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has
wrongfully been required to discharge duties of a
higher post, and has been paid accordingly, even
though he should have rightfully been required to work
against an inferior post.
(v) In any other case, where the court arrives at the
conclusion, that recovery if made from the employee,
would be iniquitous or harsh or arbitrary to such an
extent, as would far outweigh the equitable balance of
the employer's right to recover."
33. Learned counsel for the Board has relied upon
another judgment of the Hon'ble Supreme Court in the case of
Jagdev Singh (supra) wherein the Hon'ble Supreme Court
distinguished the said case from the judgment rendered in Rafiq
Masih (supra) and having found that the private respondents in the
said case had given an undertaking that any payment found to have
been made in excess would be required to be refunded, it was held
Patna High Court CWJC No.3962 of 2022 dt.18-03-2023
that they had already been put to notice by the employer and were
fully aware of the consequences, therefore no interference would
be required with the order of recovery. Paragraph '11' from the
said judgment is quoted hereunder for a ready reference:-
"11. The principle enunciated in Proposition (ii) above
cannot apply to a situation such as in the present case.
In the present case, the officer to whom the payment
was made in the first instance was clearly placed on
notice that any payment found to have been made in
excess would be required to be refunded. The officer
furnished an undertaking while opting for the revised
pay scale. He is bound by the undertaking."
34. This Court has noticed from the judgment of the
Hon'ble Supreme Court in Rafiq Masih (supra) that there was a
clear finding that neither the employee nor the employer had
committed any intentional wrong. That was a case of unintentional
mistake.
35. At this stage, this Court is reminded of the judgment
of the Hon'ble Supreme Court in Bharat Petroleum's case (supra)
wherein their Lordships have held that the judgments of a Court
cannot be applied like an Euclid' Theorem as a slightest change in
the facts of the case would make a sea difference in the opinion.
Paragraphs '9', '11' and '12' from the said judgment are quoted
hereunder for a ready reference:-
Patna High Court CWJC No.3962 of 2022 dt.18-03-2023
"9. Courts should not place reliance on decisions without
discussing as to how the factual situation fits in with the
fact situation of the decision on which reliance is placed.
Observations of courts are neither to be read as Euclid's
theorems nor as provisions of a statute and that too taken
out of their context. These observations must be read in the
context in which they appear to have been stated.
Judgments of courts are not to be construed as statutes. To
interpret words, phrases and provisions of a statute, it may
become necessary for judges to embark into lengthy
discussions but the discussion is meant to explain and not to
define. Judges interpret statutes, they do not interpret
judgments. They interpret words of statutes; their words are
not to be interpreted as statutes. In London Graving Dock
Co. Ltd. v. Horton [1951 AC 737 : (1951) 2 All ER 1 (HL)]
(AC at p. 761) Lord MacDermott observed : (All ER p. 14
C-D)
"The matter cannot, of course, be settled merely by treating the
ipsissima verba of Willes, J., as though they were part of an
Act of Parliament and applying the rules of interpretation
appropriate thereto. This is not to detract from the great weight
to be given to the language actually used by that most
distinguished judge,..."
11. Circumstantial flexibility, one additional or different fact
may make a world of difference between conclusions in two
cases. Disposal of cases by blindly placing reliance on a
decision is not proper.
12. The following words of Lord Denning in the matter of
applying precedents have become locus classicus :
"Each case depends on its own facts and a close similarity
between one case and another is not enough because even a
single significant detail may alter the entire aspect, in deciding
such cases, one should avoid the temptation to decide cases (as
said by Cardozo) by matching the colour of one case against
the colour of another. To decide therefore, on which side of the
Patna High Court CWJC No.3962 of 2022 dt.18-03-2023
line a case falls, the broad resemblance to another case is not
at all decisive."
* * *
"Precedent should be followed only so far as it marks the path
of justice, but you must cut the dead wood and trim off the
side branches else you will find yourself lost in thickets and
branches. My plea is to keep the path to justice clear of
obstructions which could impede it."
36. The word "mistake" as per Advanced Law Lexicon
by P. Ramanatha Aiyar (6th edition) page 3579 means " an
unconscious ignorance or forgetfulness of a fact, past or present,
material to the contract, or a belief in the present existence of a
thing material to the contract, which does not exist; some
intentional act, omission, or error arising from ignorance, surprise,
imposition, or misplaced confidence; in a legal sense, the doing of
an act under an erroneous conviction, which act, but for such
conviction would not have been done." Further it refers a
"mistake" is an omission made not by design but due to
mischance. A 'mistake apparent' is a mistake which is manifest,
plain or obvious and which can be realised without a debate or
dissertation. [M. Kumaran v First Additional Income Tax Officer,
(1958) 33 ITR 290 (Ker)]"
37. The question before this Court is as to whether in the
nature of the materials present when the Board was well aware of
the entire developments since the year 1995 i.e. from the date of
Patna High Court CWJC No.3962 of 2022 dt.18-03-2023
first conferment of conditional promotion to the petitioners in
anticipation of their obtaining graduation degree, the subsequent
cancellation of that order in 2005 and again fresh order dated
08.11.2007 (Annexure-3) and also the office order dated
12.09.2012 granting benefits of the post of Assistant with effect
from the date of issuance of memo (Annexure-A to the counter
affidavit), making and framing of the office order dated
25.04.2013 (Annexure-4) by introducing two wrong and false
reasons as pointed out above can be said to be a mere mistake or
an unintentional act of the employer. In this case the employer
was the Board and it was acting through the persons responsible
for framing of Annexure-4.
38. The fact that the petitioners had made
representations claiming such benefits would result in this Court
coming to a conclusion that neither the petitioners nor the
employer can be allowed to plead that the benefits conferred vide
office order dated 25.04.2013 (Annexure-4) were by way of
'mistake' and 'unintentional act' of the parties.
39. To this Court, therefore it is crystal clear that the
ratio of the judgment of the Hon'ble Supreme Court in the case of
Rafiq Masih (supra) would not be applicable in the facts situation
Patna High Court CWJC No.3962 of 2022 dt.18-03-2023
of this case. No fault may be found with the impugned action of
the respondent Board.
40. This writ application fails.
41. While dismissing the writ application, this Court
must express its anguish on the conduct of the Board as well. This
Court has noticed the submissions of the Board. It has been
submitted that it is a case involving loot of public money. This
Court finds that it is a case in which the very initial entry of the
petitioners is said to be wholly illegal and a backdoor entry
without any advertisement etc. They were absorbed against the
post of Assistant even as they did not possess requisite
qualification. In the present proceeding, however, this Court would
not go into that issue any further. The litigation at this stage has
emanated from the office order dated 25.04.2013 (Annexure '4').
Annexure '4' contains false averments which this Court has taken
note of in the beginning of this order itself. The persons behind
Annexure '4' are required to be identified by the Board and an
appropriate view be taken as to their involvement in conferring
unlawful gains to the petitioners and the consequential action, if
any, to be taken. A mere recovery of money from the petitioners, in
the opinion of this Court, would only be a half-hearted exercise.
Those who were behind unlawful disbursal of the public money
Patna High Court CWJC No.3962 of 2022 dt.18-03-2023
through office order dated 25.04.2013 (Annexure '4') cannot be
allowed to go unpunished. This Court would expect that the Board
would look into this aspect of the matter and take an appropriate
view within a reasonable period.
(Rajeev Ranjan Prasad, J)
Sushma2/Arvind-
AFR/NAFR AFR
CAV DATE
Uploading Date 24.03.2023
Transmission Date
