Idris vs The State of Jharkhand and Others

Pramath Patnaik, J.—In the aforesaid writ application, the petitioner has inter-alia prayed for quashing the memo No. 110 dated 14.02.2009 issued by respondent No. 2 vide Annexure- 6 to the writ application and for quashing the order No. 34 dated 22.08.2009 passed by the respondent No. 3 vide Annexure- 7 to the writ application relating to the recovery of the excess amount from the petitioner and also for quashing of the order dated 29.08.2009 as contained in memo No. 1090 dated 29.08.2009 passed by the respondent No. 3 for deducting Rs. 35526/- from his salary @ Rs. 7000/- per month from August 2009 onwards and not to recover the balance amount from his unutilized earned leave amount due to impending retirement on 30.10.2009.

The factual matrix as delineated and revealed from the writ application in nutshell is that the petitioner initially appointed as Work Inspector under Work Charge Establishment on 30.8.1972 by Superintending Engineer/Public Health and Engineering Department (PHED), Bhagalpur Circle, Bhagalpur vide Annexure-1 to the writ application. On the completion of 10 years of service, the petitioner has been granted first time bound promotion vide order No. 18 dated 22.02.1988 by the respondent No. 3 w.e.f. 01.09.1982 vide Annexure-A to the counter-affidavit. Subsequently, the respondent No. 2 vide office order No. 73 dated 04.10.2002 as contained in memo No. 965 dated 04.10.2002 granted benefit of Assured Career Progression (ACP) to 27 employees of Dumka Circle including the petitioner. The petitioner was given his first ACP in the next higher pay scale of Rs. 4500-7000/- a copy of which being annexed as Annexure-4 to the writ application. Vide memo No. 715 dated 30.08.2003 the respondent No. 2 modified the earlier office order No. 73 dated 04.02.2002 (Annexure-4) by giving the benefits of ACP from 9.8.1999 in place of 2.06.2002 a photo copy of the memo No. 715 dated 30.08.2003 is being annexed as Annexure- 5 to the writ application. Grant of ACP has been extended to the petitioner on completion of 12 years after scrutiny of service records.

But, to utter surprise and consternation after lapse of 7 years, the respondent No. 2 vide letter No. 110 dated 14.02.2009 without any rhyme and reason wrote to respondent No. 3 for withdrawing all the benefits of ACP due to non-passing of departmental accounts examination and for recovery of all the excess payments, annexed as Annexure-6 to the writ application.

In pursuance of the direction of the respondent No. 2 respondent No. 3 vide office order No. 34 dated 22.08.2009 passed order for fixing the pay of the petitioner in the scale of Rs. 4000-6000 w.e.f. 01.09.2003 and directed for recovery of benefits of excess ACP amount from the pay and retirement benefit annexed as Annexure-7 to the writ application. Respondent No. 3 has also passed another order as contained in memo No. 1090 dated 29.08.2009 for recovery of Rs. 35526/- from the petitioner and directed for recovery of Rs. 7000/- per month from the pay of the petitioner from August, 2009. Further direction has been made for recovery of the balance amount for unutilised EL a lump sump after retirement i.e. 31.10.2009 vide Annexure-8 to the writ application.

Being aggrieved by the impugned order of the Annexures- 6 to 8, the petitioner approached this Court invoking the extra ordinary jurisdiction of this Court under article 226 of the Constitution of India.

Per contra the respondents have filed counter-affidavit controverting the averments made in the writ application. It has been contended in the counter-affidavit in paragraph 7 thereof, that the petitioner was given first time bound promotion on 7.9.1982 at Annexure-A to the counter-affidavit and the petitioner did not pass the departmental accounts examination therefore, the ACP granted to him is only provisional in terms of the resolution No. 5207 dated 14.08.2007 (clause 10). The parent department is entitled to give promotion on ad-hoc basis and the parent department should get the same confirmed by the Finance Department within a period of one year. Finance Department is further vested with the power to cancel the ad-hoc promotion given by the parent department.

It is further submitted in the counter-affidavit that the Regional Development Officer, Santhal Paragana Commissionery vide letter No. 51 dated 15.01.2009 has directed to the Superintending Engineer, Drinking Water and Sanitation, Dumka Circle to withdraw the ACP benefits from all those employees who have not passed the departmental accounts examination vide Annexure-C to the counter-affidavit. Further it has been submitted in the counter-affidavit that department has every right to modify its order in accordance with law and the bona-fide mistake can be rectified at any point of time. Since, the petitioner did not prefer to appear in the examination held by the department in the year 1997, 1998 and 2005 and the employees who availed the benefits of ACP have passed the examination are fit for promotion and even the principle of equity cannot be pleaded as the petitioner avoided appearing in the examination.

Heard Mr. Pradip Modi learned counsel appearing for the petitioner and Mr. Yogendra Prasad, J.C. to S.C. I on behalf of the respondents.

Mr. Pradip Modi, learned counsel appearing for the petitioner submitted that time bound promotion was given in the year 1982 and ACP was granted in the year 2002 but after lapse of seven years there is no justification to recover the amount given on ACP. Counsel for the petitioner further referred the Annexure-F to the counter-affidavit that if any employee gets promotion before 01.09.83 without any departmental examination then for next promotion he will be exempted from the passing of the departmental examination.

It has further been submitted that there is no justification for withdrawing the ACP granted to the petitioner, after lapse of 7 years and respondent No. 3 has passed the order in memo No. 1090 dated 29.08.2009 vide Annexure -8 to the writ application.

Moreover, passing of accounts examination is the condition precedent for grant of ACP but as per Annexure- F to the counter-affidavit i.e. letter dated 09.05.2003 issued by the Water Resource Department, Government of Jharkhand wherein it has been mentioned that if the person gets promotion prior to 01.09.83 without passing the departmental examination, then passing the same for future promotion is not necessary vide Annexure-F to the counter-affidavit. There was no necessity of passing of the accounts examination and for that the action of the respondent has been assailed by the petitioner. To buttress his arguments the counsel for the petitioner has referred the decision of Hon''ble Apex Court in the case of State of Punjab Vs. Rafiq Masih, (2014) 10 SCJ 700 the Hon''ble Apex Court has summarized the facts and circumstances in which recovery is permissible.

Learned counsel for the petitioner has argued before this Court that the case of the petitioner fits into the situation as has been enunciated in the decision of the Hon''ble Apex Court reported supra and the case of the petitioner is squarely covered by the principles enunciated by the Hon''ble Apex Court and on that basis the action of the respondents in issuing the Annexures - 6 to 8 are liable to be quashed.

Learned counsel for the State submits that the action of the respondents are justified and in consonance with the rules. The respondents have rightly issued the Annexures- 6 to 8 since the petitioner have not passed the accounts examination which was the condition precedent for grant of time bound promotion subsequently ACP.

After perusing the records and hearing the counsels at length, I am of the considered view that the impugned order at Annexures-6 to 8 are not legally sustainable due to the following facts and reasons:

"i. In the instant case the petitioner, admittedly after the 10 years of the service has been granted time bound promotion and subsequently after completion of 12 years has been granted ACP. The financial benefit has been granted not on misrepresentation of facts and fraud committed by the petitioner but the same has been granted by the respondents of their own. The petitioner ought not to put in this position by the impugned order at Annexures- 6 to 8.

ii. That the case of the petitioner is squarely covered by the facts enunciated by the Hon''ble Apex Court Supra, in the impugned orders at Annexures- 6 to 8 of the writ application are liable to be set aside."

On cumulative effect of the facts, reasons and judicial orders the impugned orders at Annexures- 6-8 are assailable and thereby quashed and the respondents are directed to refund the amount, which has been recovered from the salary of the petitioner within the period of two months and the pension of the petitioner be refixed on the basis of the actual pay of Rs. 4000-7000 inclusive of the ACP benefits within the aforesaid period.

With the aforesaid directions, the writ application is allowed.