Kaushal Kumar and Another vs The State of Bihar and Others

Navin Sinha, J.—Heard Learned Counsel for the petitioner and the State. The petitioner is aggrieved by the order dated 14.1.2010 cancelling his time bound promotion for not having passed the departmental examination. The petitioner was granted time bound promotion on 6.11.1992 with effect from 30.10.1991. The impugned order cancels the same and directs recovery on 11.5.2011.

It is submitted that the petitioner has superannuated from service in February, 2012. The recovery is going to be from his pension resources when he has no other source of survival. There are no allegations of any fraud or misrepresentation by him to obtain the promotion. The petitioner has passed the departmental examination.

Learned Counsel for the State submits that the recovery has been ordered before superannuation (which is to take effect after superannuation).

Learned Counsel for the State submits that the petitioner has passed the departmental examination in 2010 and therefore the authorities have considered him for grant of 1st, 2nd and 3rd A.C.P. and passed appropriate orders on 1.2.2012. There is no infirmity in the order dated 14.1.2010 as till the date of that order he had not passed the departmental examination. The promotion on 30.10.1991 was clearly erroneous without passing the examination. Relying on a Division Bench judgment reported in Bihar State Electricity Board and Others Vs. Man Bahadur and Others it is submitted that even if there was no fraud or misrepresentation, but the benefit came to be granted by a bona fide mistake committed by the office, the employer can take steps for recovery.

Each case has to be decided on its own facts. The ratio of a judgment is based upon the same. The ratio of the judgment cannot be applied in the abstract. The Division Bench noticed the judgment in Sahib Ram Vs. State of Haryana and Others, , related to passing of departmental exam. for grant of increments. Distinguishing the same reliance was placed on the facts in V. Gangaram Vs. Regional Joint Director and others, , State of Punjab and Others Vs. Devinder Singh and Others, and Union of India and Others Vs. Smt. Sujatha Vedachalam and Another, that if pay was wrongly granted due to miscalculation it could be recovered.

In Bihar State Electricity Board and Anr. v. Bijay Bahadur and Anr. it was observed that recovery of the present kind after 14 to 15 years, especially when the departmental examination had been "cleared, though late, no recovery could be effected.

The money that was paid to him has obviously not been stored, but spent. If the respondents took a long time from 6.11.1992 to 14.1.2010 to discover the error, it needs no further discussion that somebody was receiving his salary in office without working. The need for the respondents was simultaneously to identify such person, proceed against him also and then direct recovery against the petitioner. Should the respondents be of the opinion that the recovery was still required to be effected, fairness on their part lies in proceeding against the concerned who facilitated the same simultaneously. The standards by which the respondents profess to act shall be the standards by which the Court shall examine their conduct. The counter affidavit is completely silent on how the wrong promotion came to be granted and why it came to be discovered after such long years. The counter affidavit clearly attempts to protect those who were not working. The respondents were restrained from making any recoveries from the petitioner in pursuance of the impugned order. The writ application is allowed.