Ashok Kumar Biswas vs The State of Jharkhand and Others

Aparesh Kumar Singh, J.—Heard counsel for the parties. Petitioner served as a Accounts Clerk under Building Construction Department and superannuated on 31.12.2012. The 2nd ACP provisionally granted by Office Order bearing Memo No. 1220 dated 13.3.2004 by the Superintending Engineer in the scale of Rs. 5,500-9,000/- with effect from 9.8.1999 has been revoked by the impugned order dated 30.5.2011 bearing Memo No. 768 (Annexure-1 to the supplementary affidavit) issued by the same officer (Respondent No. 3), as per the Finance Department Instructions. The impugned order also refers to the instruction of Finance Department to undertake recovery of any amount paid in excess in such manner from the concerned employee.

Petitioner contends that he had made several representations for exemption from passing the departmental exam. and had also cleared three departmental exams., as evident from Annexure-9 dated 18.6.2009. There is no reason why respondents would not have granted him exemption like other persons such as named at Annexure-3 dated 8.6.2006 and 29.1.2009. All of them were working in the office of the same Respondent No. 3. It is submitted that after his retirement, such recovery is also not permissible in law in view of the judgment of the Hon''ble Supreme Court and re-fixation of his pay should not have been allowed after he has been allowed to avail such scale over a period of eleven years from its grant by Annexure-1 order dated 13.3.2004. Counsel for the petitioner has relied upon a judgment rendered by the learned Single Judge in the case of Jhupru Degri Vs. State of Jharkhand and Others, in support thereof. Learned counsel also relied upon a judgment rendered in the case of Saryug Prasad v. The State of Jharkhand & Others in WPS No. 5579/2010 dated 6.1.2011 (Annexure-10) in support thereof.

Counsel for the respondent State, by referring to the counter affidavit, submits that the petitioner''s claim for exemption from passing the departmental exam. upon attaining 50 years of age, was rejected by order dated 26.12.2011 (Annexure-5) and also by the review order dated 30.7.2012 (Annexure-7) by the Commissioner, South Chhotanagpur Division, Ranchi. It is submitted that passing of the departmental exam, is a mandatory requirement in terms of ACP Scheme dated 14.8.2002. Reference has also been made to the Bihar Board Miscellaneous Rules, 1958 which prescribes such passing of departmental exam. Statements made by the petitioner at para-19 are also categorically denied by para-21 by stating that he had not finally cleared the final departmental exam., as would also be evident from Annexure-9 enclosed by him. It is submitted that the impugned order does not intend to undertake any recovery from the petitioner.

I have considered the relevant materials on record and submissions of the parties. Grant of ACP by Annexure-1 order was provisional in nature, subject to confirmation by the Finance Department. During the verification and in the process of confirmation, error was pointed out by the Finance Department leading to issuance of the impugned order dated 30.5.2011. Petitioner has not been able to show that he had cleared all departmental exams, either before the age of 50 years or made efforts to clear the said exam. before attaining the age of 50 years and could not clear as no exams, were held for a considerable period till he attained the age of 50 years. Any exemption from passing the departmental exam, is granted in cases where the employee has successively attempted departmental exams, held over a period of time and could not clear it or there were no exam, held for a considerable period of time, till the employee attained the age of 50 years. This decision of granting exemption of course is made effective from the date of the order passed by the competent authority.

In the petitioner''s case, the request for exemption has twice been rejected by Annexures-5 and 7 order dated 26.12.2011 and 30.7.2012 which is riot impugned by him. Instances of other persons referred to at Annexure-3 indicate that they have been granted exemption by the decision of the competent authority i.e. Commissioner of the Division. If exemption has been granted to one or the other employees, the requirement of passing the departmental exam, was waived upon attaining 50 years of age of age. In such circumstances, on merits, petitioner has not been able to satisfy that he had a lawful claim to a particular scale of Rs. 5500-9,000/- on grant of 2nd ACP despite not clearing the departmental exam, as required under the ACP Scheme.

Be that as it may, if the respondents chose to grant him such scale and has superannuated enjoying such scale, the impugned order which intends to undertake recovery, cannot be given effect to in view of the legal position now settled by the Hon''ble Supreme Court in the case of State of Punjab Vs. Rafiq Masih, . However, reliance of the petitioner upon the judgment in the case of Jhupru Devi (supra) would not improve his case as in the said judgment, the ratio laid down by the Hon''ble Supreme Court in the case of Sahib Ram Vs. State of Haryana and Others, , as has been relied upon, prohibited the recovery of any amount paid in excess if there was no fraud or misrepresentation on the part of the petitioner. However, there is no law laid down, so far as refixation of pay scale of such an employee is concerned if the grant of 2nd ACP was provisional in nature and subject to be confirmed by the competent authority. On the same grounds, petitioner cannot improve his case on merits relying upon the judgment enclosed at Annexure-10 of the writ petition.

In substance, the impugned order so far as it modifies the grant of a particular scale of Rs. 5,500-9,000/- to Rs. 4,500-7,000/- to the petitioner, cannot be said to be suffering from any error on merits warranting interference. However, as observed hereinabove, no recovery should be effected from the petitioner as apparently, he has retired on 31.12.2012 and no case of fraud or misrepresentation is made out against him. Any such recovery would entail undue hardship upon the petitioner. The writ petition is partly allowed in the manner indicated hereinabove.