Devendra Singh and Others vs The State of Bihar and Others

Navaniti Prasad Singh, J.—In this writ petition, the petitioners are Class III employees employed in the Tourism Department, Government of Bihar. They are aggrieved by order as contained in Annexure 4 being order dated 09-11-2000 issued by the Commissioner-cum-Secretary-cum-Director, Department of Tourism, Bihar whereby the time bound promotions granted to these petitioners without their passing the Accounts Departmental Examinations have been cancelled with a further direction that any amount that had been paid to them would be recovered. Counter affidavit is on record with rejoinder filed. With consent of parties, this writ petition has been heard for its final disposal at this stage itself.

The petitioners'' stand is that, as would be evident from various contemporaneous documents, the stand of the Tourism Department itself was that the employees of the Tourism Department were not bound by Rule 157J of the Board''s Miscellaneous Rules which made it obligatory on employees of the State Government in the, Secretariat and attached offices as well as Mufussil offices to pass departmental examinations in accounts before becoming eligible for promotion. In that view of the matter, the employees having been precluded from taking examinations because of the stand of the Department at the highest level itself, they cannot be made to suffer the consequences of such a wrong decision. On the other hand, on behalf of State, it is submitted that even a wrong committed by the State cannot be allowed to be perpetuated and continued. It must be set at right and any undue amount paid must be recovered.

Having considered the matter, in my view, both the submissions of the two sides are correct but they have been very broadly stated. The undisputed facts of this case would show that notwithstanding the notification issued by the Government through the Board of Revenue, the Department, at the highest level, was of the view that the employees of the Tourism Department were a separate cadre and the said notification or the Board''s Miscellaneous Rules in that regard did not apply. This stand was clearly communicated by the Department to the Board of Revenue. The Board of Revenue opined to the contrary. The Department still continued with the same stand till ultimately accepting the views of the Board of Revenue, the impugned decision was taken. From this, it would be clearly established that the employees had no choice nor any option in view of the stand consistently taken by the Department. They were deprived of opportunity to take the Departmental Examinations on the ground that they were not so required. Now they are being told that the departmental head, the controlling authority took a wrong decision and that being so for that wrong decision, they must now suffer. In my view, this cannot be permitted. I am remanded on what Chief Justice Chagla said more than five decades back in the case of All India Groundnut Syndicate Limited v. Commissioner of income tax, Bombay City, AIR 1954 Bombay 232:

But the most surprising contention is put forward by the Department that because then-own officer failed to discharge his statutory duty, the assessee is deprived of his right which the law has given to him under sub-section (2) of S. 24. In other words, the Department wants to benefit from and wants to take advantage of its own default. It is an elementary principle of law that no person-we take it that the income tax Department is included in that definition-can put forward his own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because "I have committed a default and the right is lost because of that default.

In my view, the matter does not end there. Once the mistake was realized then the petitioners cannot urge that the mistake goes uncorrected. A mistake cannot be permitted to be continued to be perpetuated. Department is duty bound to correct the mistake. Thus, I also hold that once the Department realized the mistake then and thereafter, it is at liberty to refix the pay scale correctly and require the employees to clear the Departmental Examination or face consequences of non-grant of time bound promotion.

Now coming to the aspect of recovery. Learned counsel for the State relies on a recent decision of the Apex Court in the case of Chandi Prasad Uniyal and Others Vs. State of Uttarakhand and Others, for the proposition that a wrong benefit granted not only cannot be permitted to continue but the State has an authority to recover all excess payments made. I have gone through the judgment. The proposition on behalf of the State is again too broad to be accepted. A reference to the said judgment of the Apex Court would show that it had clearly carved out exceptions.

In my view, this case falls within those exceptions. Some of the employees have already superannuated, some are about to superannuate. They had been receiving the benefits under the time bound promotion scheme, though now found wrongly, for almost two decades. As noted above, they had nothing to do with the wrong decision rather they became victims of the wrong decision. Had they been told earlier that they would get the time bound promotion only after clearing the Departmental Examination, they would have readily accepted the same and taken the said examination. Now, it would be highly inequitable to permit recoveries to be made. One must not forget that remunerations received by employees do not go into savings. They are spent. According to their pay structure, they make social and economic commitments. If recoveries at this belated stage are ordered to be made, it would upset their whole basis of surviving. Their families would have to suffer for no fault of theirs rather for fault of the departmental heads. That cannot be permitted. It would clearly be in the exception, as noted by the Apex Court itself.

Thus, I hold that Annexure 4 to the ex-tent of depriving the petitioners and their like of time bound promotion for failure to take the departmental examinations would, in the peculiar facts and circumstances, operate prospectively only and no recoveries for past period would be made. To that extent, Annexure 4 is quashed. The writ petition is, thus, disposed of in the aforesaid terms.