Jeoti Tirkey vs State of Jharkhand

1.Heard Mr. Praveen Kumar Pandey, learned counsel for the petitioner, Mr. D.K. Dubey, learned Sr. S.C. I appearing for the Respondent-State as

well as Mr. Sudarshan Shrivastava, learned counsel for the Respondent No. 6.

In the captioned writ application, the petitioner has sought for issuance of a writ of mandamus for quashing the order of the respondent No. 3 vide

letter dated 20.03.2009 in Annexure-1, pertaining to recovery of the amount of Rs.49,086/- from the salary of the petitioner for the period from

29.04.1987 to 2000-2001 for the excess amount of salary in view of the order of the Deputy Accountant General (Respondent No. 6).

Bereft of unnecessary details, the facts, as has been disclosed in the writ application are that initially the petitioner was appointed as ‘A’

Grade Nurse in the year 1987 and from the date of her appointment, the petitioner has been discharging her duties with utmost sincerity and to the

satisfaction of the higher authority. While continuing, as such, the respondent no. 3 vide letter dated 20.03.2009 has directed for recovery of the

excess amount of Rs.49086/- during the period 29.04.1987 to 2000-2001 from the salary of the petitioner due to non-passing of the examination of

Hindi Noting and Drafting as per the impugned order vide Annexure-1 to the writ petition. Being aggrieved by the aforesaid order, the petitioner

submitted representations raising her objections for such unilateral decision in absence of principles of natural justice. The said representation has been

followed with another reminder vide Annexure-3, wherein, the stand has been taken that there is no necessity for passing of the Hindi Noting and

Drafting Examination for the post of Auxiliary Nursing Midwife, hereinafter in short to be referred as ‘ANM’ but the representation of the

petitioner has been rejected vide order dated 08.07.2009 without considering the same in the right perspective.

Thereafter, the petitioner also filed further representations vide Annnexure-5 and 5/1 but the said representations seem to have fallen on the deaf ears

of the respondents. It has been averred in the writ application that vide letter dated 26.06.2007 of the Secretary, Health Department, Bihar, which has

been adopted by the State of Jharkhand, which, inter alia, envisages that the technical post including the post of ‘A’ Grade Nurse, the passing of

the examination of Hindi Noting and Drafting is not a condition precedent for grant of increment. Also, the Circular dated-28.02.1972 indicates that the

post of the Auxiliary Nursing Midwife is exempted from passing the examination of Hindi Noting and Drafting. Again the Circular dated 30.05.1992 of

the Director, Health, Bihar about passing of the Hindi Noting and Drafting has been referred to. The petitioner successfully qualified the Examination

of Hindi Noting and Drafting in the year 2003, as per Annexure-10 and 10/1 to the writ application. It has further been submitted in the writ application

that the case of the petitioner is covered by the decision rendered in C.W.J.C. No. 9431 of 2006 (Kiran Kumari and others-vs.-State of Bihar and

others), wherein, the Hon’ble Court by allowing the writ application has directed for refund of the recovered amount. Being aggrieved by the

impugned order vide Annexure-1 to the writ application, the petitioner left with no alternative and efficacious remedy, has been constrained to

approach this Court under Article 226 of the Constitution of India for redressal of her grievances.

Learned counsel for the petitioner has strenuously urged that the action of the respondents in directing for recovery of the amount of Rs.49086/-

after a long lapse of 22 years is unsustainable in the eyes of law. Learned counsel further submits that the post of ANM, being a technical post and

the incumbent holding the post of ANM, is not required to pass Hindi Noting and Drafting Test as per the Government Circulars. Learned counsel

further submits that the case of the petitioner is squarely covered by the decision rendered in the case of Kiran Kumari and others-vs.-State of Bihar

and others, therefore, the petitioner ought to be extended with the same benefit, as has been extended in the aforesaid case. Learned counsel further

submits that the action of the respondents being violative of Article 14 and 300 A of the Constitution of India, on the ground that the order of recovery

has been passed without issuance of any show cause notice and the impugned order being unsustainable and on that score, the impugned order is

liable to be quashed and set aside.

Controverting the averments made in the writ application, a counter affidavit has been filed by the respondents. In the counter affidavit, it has been,

inter alia, submitted that the petitioner, who is presently working as ‘A’ grade nurse had to pass Hindi Noting and Drafting Examination, which

is essential condition for grant of increment as per Hindi Examination Rules, 1968 as Annexure-A to the counter affidavit. It has further been

submitted that every government servant has to prepare a report and returns in Hindi (Deonagri) script and has to pass the examination for the said

post within a period of one year. It has been further averred that the petitioner has not passed the said examination during the said period from

29.04.1987 to 2001 and it is also mandatory for the Government employee (‘A’ grade nurse) to prepare report etc. It has further been averred

that on perusal of inspection report no. OAD (NC) I 44/2000-01 conducted by the Accountant General Office, it was found that the petitioner was

allowed increment without passing Hindi Noting and Drafting Examination and due to which excess payment of salary to the tune of Rs.49086/- has

been made, as evident from Annexure-B to the counter affidavit. Further, it has been submitted that the respondent No. 3 has passed the order under

challenge on the basis of the Inspection Report and as per Rule 7 of Hindi Examination Rule, 1968, it is mandatory for every government servant

except Grade IV employee to pass Hindi Noting and Drafting Examination and the decision relied upon by the petitioner in C.W.J.C. No. 9431 of 2006

has no application to the present case.

Learned counsel for the Respondents-State apart from reiterating the submissions made in the counter affidavit has submitted that passing of the

Hindi Noting and Drafting Examination is a condition precedent for grant of increment as per the Hindi Examination Rule, 1968 and since the

petitioner did not pass the said examination, prior to 2001, basing on the objection by the respondent no. 6, the impugned order has been passed,

directing for recovery of the excess amount from the salary of the petitioner, therefore, there is no illegality on the part of the respondent No. 3 to

have issued such order for recovery of the lawful dues from the petitioner.

Mr. Sudarshan Shrivastava, learned counsel for the Respondent No. 6 submits that if the passing of the Hindi Noting and Drafting Examination is

not required, then why the petitioner appeared in the said examination and passed the same in the year 2003, as per Annexure-10 and 10/1 and

therefore, the respondent no. 6 has raised an audit objection for grant of illegal increment to the petitioner from 29.04.1987 to 2000-2001.

Having bestowed my anxious consideration to the rivalised submissions and on perusal of the records, I am of the considered view that the

petitioner has been able to make out a case for interference due to the following facts and reasons : -

(i) Admittedly, the impugned order has been passed in the year 2009 and the petitioner has been granted the benefit of increment in the year 1987 till

2001 and the order of recovery has been passed by the respondent after a considerable lapse of time and that too without issuing any show cause and

on that score, the impugned order cannot be sustained.

(ii) Nothing has been brought on record that the petitioner has resorted to any fraudulent means or is a beneficiary of any fraud or misrepresentation

for grant of any increment to her salary on the post of Auxiliary Nursing Midwife since the petitioner has enjoyed the benefit of increased salary, even

without non-passing of the Hindi Noting and Drafting Examination till 2001, it would not be proper and justifiable on the part of the respondents to

recover from the salary of the petitioner. The view of this Court gets fortified by the decision rendered by the Full Bench of this Court in Smt. Normi

Topno Vs. The State of Jharkhand & Others, reported in 2007 (4) JLJR 466 subsequently applicable to the case of the petitioner. In the aforesaid

decision, it has been held by the Full Bench of this Court that once the monetary benefits is already paid to the employees and there is no allegation of

misrepresentation or fraud, the amount cannot be recovered. Similar view has been taken by this Court in case of Amar Nath Singh Vs. State of Bihar

and others, reported in 2004 (2) JCR 342 (Jhr). Recently, The Hon'ble Apex Court in the judgment reported in (2015) 4 SCC 334 in the case of State

of Punjab And Others Vs. Rafiq Masih (white washer) And Others relying on various judgment including judgment rendered in the case of Chandi

Prasad Uniyal And Others Vs. State of Uttarakhand And Others reported in (2012) 8 SCC 417 has been pleased to hold in paragraph 18 of Rafiq

Masih (white washer) case (supra) as under:-

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 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 employers right to recover.

In view of the reasons stated in foregoing paragraphs and as cumulative effect of the aforesaid reasons and judicial pronouncement, the impugned

order vide Annexure-1 to the writ petition is hereby quashed and set aside.

Resultantly, the writ petition stands allowed.