Om Prakash Gupta vs State of Jharkhand And Ors

Heard learned counsel for the parties through V.C.

The instant writ application has been preferred by the petitioner praying therein for quashing and setting aside the order as contained in Memo

No.130 dated 05.02.2013, passed under the signature of respondent no.4 (Annexure-11) whereby the claim of the petitioner in terms of order dated

18.12.2012 passed in W.P.(S) No.5196 of 2009 by this Court has been rejected and also for quashing the order contained in Memo No.2199 dated

06.09.2010 (Annexure-5), whereby the benefit of Assured Career Progression (hereinafter referred as ACP) granted to the petitioner with effect

from 19.09.1990 has been cancelled and shifted to 24.07.2003 and further order to recover the amounts in lieu of A.C.P granted to the petitioner in

spite of the fact that the said ACP was approved by the Divisional Commissioner, Hazaribagh.

The facts relevant for disposal of the instant writ application are that the petitioner was initially appointed in the month of December, 1971 and

superannuated from service on 31.07.2009. In the light of recommendation of the Finance Department, the scale of the petitioner has been fixed in the

pay scale of Rs.9300-34,600/- with effect from 01.01.2006 and also provided increments with effect from 01.07.2006, 01.07.2007 and 01.07.2008

respectively vide order dated 20.03.2009 (Annexure-1). The petitioner has also been provided the last increment with effect from 01.07.2009.

The grievance of the petitioner is that in spite of the aforesaid decision of Finance Department, the last increment which was sanctioned and approved

vide Annexure-2, was not provided to the petitioner which was due on 01.07.2009. As such, the petitioner filed a detailed representation for providing

the entire retiral benefits. Finally, the petitioner preferred a writ application being W.P.(S) No.5196 of 2009 praying for a direction upon the

respondents to pay entire retiral benefits, however during pendency of the said writ application, an order under

 Memo No.2199 dated 06.09.2010 has been issued; whereby the first time bound promotion granted to the petitioner with effect from 19.09.1990

and the First ACP provided with effect from 09.08.1999 has been cancelled on the ground of non-passing of accounts examination. Consequently, the

benefit of first ACP was granted from 24.07.2003 and further it was also directed to recover the amount in lieu of excess payment made by virtue of

first time bound promotion.

During pendency of the aforesaid writ application, the pension of the petitioner was also fixed in the pay scale of Rs.11925/- which is of five years

before and much before the pre-revised scale. Further, vide order dated 28.05.2010, the respondents have paid the group insurance amount.

The petitioner assailed the impugned order dated 06.09.2010 in the earlier writ application and this Court vide its order dated 18.12.2012 quashed the

impugned order; however, the Respondents were given liberty to issue Notice to the petitioner and pass a fresh order.

Mr. Dhananjay Kumar Dubey, learned counsel for the petitioner submits that the petitioner had earlier moved before this Court being W.P.(S)

No.5196 of 2009 challenging the impugned order dated 06.09.2010, whereby the claim of the petitioner has been rejected and the benefits of First

ACP; which was granted to the petitioner with effect from 19.09.1990, was shifted to 24.07.2003 and the excess amount already paid was directed to

be recovered. The said writ application was disposed of vide order dated 18.12.2012 by quashing the impugned order dated 06.09.2010, however a

liberty was granted to the respondents to issue fresh show-cause notice to the petitioner and pass a fresh order.

Learned counsel strenuously contented that when the impugned order was quashed by this Court in W.P.(S) No.5196/09 then the respondent authority

instead of passing the new order/fresh order has revived the earlier impugned order as if the respondents were sitting in appeal. He contended that the

last line of the impugned order dated 05.02.2013 reads as “in view of the aforesaid facts and circumstances the Office Order under Memo No.

2199 dated 06.09.2010 will be applicable from the date of issueâ€. Meaning thereby to say, that though the impugned order which was quashed by this

Court was revived by the respondent authority; though the only liberty which was given by this Court was to pass a fresh order.

The petitioner further argued that the only ground which was taken by the respondent was that the petitioner had not passed the accounts examination

though the time bound promotion which was given earlier was duly approved by the competent authority vide order dated 30.04.2008. Thereafter the

first time bound promotion has already been provided by order dated 23.09.1995. Further, the petitioner had already passed first and third paper much

earlier and since departmental examination has been held in between 1997-98, hence the petitioner has been exempted from appearing in accounts

examination which is evident from letter dated 24.07.2003 (Annexure-8).

He further contended that the issue of non-passing of accounts examination has already been settled by various judgments. He referred to the

judgment passed by this Court in the case of Nand Mishra Vs. The State of Jharkhand & Ors. reported in 2003 (2) JCR 343 (jhr), wherein this Court

has held that on account of non-passing of accounts examination, the promotion and the benefits which has been given earlier cannot be cancelled. He

further referred the judgment passed in the case of Bhola Nath Pattanayak Vs. The State of Jharkhand & Ors. reported in 2004(1) JLJR 306 wherein

at para-3, the Court has held that the ground of non-passing of Hindi Noting and Drafting examination, is considered as wrong in view of the direct

decision on this point in the case of Lala Devendra Prasad Vs. The State of Bihar and Ors. reported in 2000(1) PLJR 228 wherein it has been held

that for time bound promotion, there is no requirement of passing of departmental examination.

Mr. D. K. Dubey concluded his argument by submitting that when the earlier impugned order was quashed and a liberty was given to the respondents

then the respondents would have initiated proceeding under Rule 43(b) of Bihar Pension Rules as no recovery can be made by any person without

initiation of any proceeding as stipulated in the rules.

Relying upon the aforesaid judgments and submissions, learned counsel for the petitioner submits that the impugned order is fit to be quashed and set

aside and also the amount which has been recovered may be directed to be refunded to the petitioner along with statutory interest.

Mr. Apoorva Singh, learned counsel for the respondent-State submits that the petitioner is not entitled for any relief because the service book of the

petitioner was sent to the District Accounts officer, Hazaribagh for checking of the first time bound promotion. The D.A.O, Hazaribagh vide its letter

dated 10.01.2004 returned his service book to Building Construction Circle, Hazaribagh with objection that aforesaid first time bound promotion was

given to the petitioner was not valid. The Building Construction Circle, Hazaribagh sent the service book to the Executive Engineering Building

Division, Koderma to follow the instructions given by D.A.O, Hazaribagh.

Learned counsel for the respondent further submits that the said letter dated 16.01.2004 should have been in the personal file of the petitioner but

surprisingly it was not available in his personal file and if any action would have been initiated in January, 2004, the date of the first time bound

promotion would have been corrected from the date of exemption to the date of passing of departmental accounts examination.

Relying upon the aforesaid facts, learned counsel submits that the petitioner has committed misrepresentation and fraud, who the then was dealing

clerk and custodian of his personal file.

In this view of the matter, the action of the respondents is just and proper and the instant writ application should be dismissed.

Having heard learned counsel for the parties and after going through the documents available on record and the averments made in the respective

affidavits; it appears that the petitioner was appointed in the year 1971 and retired on 31.07.2009. Thereafter vide memo no.2199 dated 06.09.2010 the

order has been passed by the respondents whereby first time bound promotion given to the petitioner with effect from 19.09.1990 and first ACP with

effect from 09.08.1999 has been cancelled and it has been shifted with effect from 24.07.2003 for grant of benefit of first ACP on the ground that the

petitioner had not passed the departmental accounts examination and the said decision was taken in terms of meeting dated 15.01.2010.

It further appears that the said order was challenged by the writ petitioner in W.P.(S) No.5196 of 2009, which was disposed of by quashing the order

dated 06.09.2010 on the ground that the petitioner was not given any notice before changing the date of grant of ACP/time bound promotion prior to

the date of passing the impugned order. However, the respondents were given liberty to issue fresh show cause notice to the petitioner within 30 days

calling explanation and take a final decision on the show-cause so issued and explanation furnished within next 60 days.

At this stage it is pertinent to mention here that while disposing of the earlier writ application, this Court only granted liberty to the respondents to

issue fresh show cause notice but it never exempted the respondents to bypass statutory provisions under law; meaning thereby to say, after

retirement there is no relationship of employer and employee as such no recovery can be made from the retiral benefit without following procedure of

law as provided under Rule 43(b) of Bihar Pension Rules.

From the impugned order it appears that there is allegations of misrepresentation as well as keeping the personal file in his own custody. In this

regard it is necessary to state certain facts that in terms of the recommendation of the Finance Department the scale of the petitioner had been fixed

in the pay scale of Rs.9300-34,600/- with effect from 01.01.2006 and the petitioner had also been provided the last increment with effect from

01.07.2009. As such from perusal of the Annexure; it cannot be said that there is some interpolation or manipulation. The ground of misrepresentation

or suppression has been taken by the respondents in their supplementary counter affidavit at Paragraph nos. 7, 8, 9 and 10 which is quoted herein

below:-

“7. That when the service book of the petitioner was sent to the District Accounts Officer, Hazaribagh for checking of the first time bound

promotion and first ACP which was given to him with condition that he would have passed the Departmental Accounts Examination. The DAO,

Hazaribagh vide his letter no.51 dated 10.01.2004 returned back his service book to Building Construction Circle, Hazariabgh with objection that

aforesaid first time bound has been given to Mr. Gupta is not valid/applicable with other necessary instruction.

That the Building Construction Circle Hazaribagh returned back his service book to follow the instructions given by D.A.O, Hazaribagh to the office

of Executive Engineer Building Division, Koderma vide his Office Memo. No.51 dated 16.01.2004.

That the Memo No.51(WE) dated 16.01.2004 of S.E Building Construction Circle, Hazaribagh should have been in the personal file of the petitioner

which is surprisingly not available in the personal file of which he was the custodian.

That had the petitioner initiated action on this matter in January, 2004 through his personal file, his first time bound promotion would have been

corrected from his date of exemption from passing the departmental account examination i.e. 24.07.2003.â€​

At the cost of repetition, there is no any evidence of manipulation in the service book of this petitioner. Thus, on the one hand; no interpolation has

been found in any documents and or the other hand; no departmental proceeding had ever been initiated for the alleged misconduct relating to

misrepresentation or tampering with the records or keeping the same at his own custody against this petitioner in the matter of obtaining the benefit of

time bound promotion and first ACP benefits.

It is now well settled principle of law that any order causing prejudice to a person cannot be passed without giving him or her an opportunity of

hearing and if any proceeding would have been initiated then certainly the petitioner would have participated in the said proceeding and would have

given his stand but after retirement there is no relationship of employer and employee as such, recovery of retiral dues can be made only under the

provisions of law i.e. under Rule 43(b) of Bihar Pension Rules. At the cost of repetition, this Court in the earlier writ application had only given liberty

to issue show-cause notice; that does not mean that the respondents were given liberty to bypass statutory provisions of law which is Rule 43(b) of

Bihar Pension Rule.

In the case of Smt. Normi Topno Vs. The State of Jharkhand reported in 2008 (1) JCR 381 JHR para-47.

“47. In view of the above discussions, we arrive at the following conclusion. To sum up:

After retirement, there is no relationship of employer and employee and as such no recovery can be made from the retrial benefits without following

procedure of law as provided under Rule 43(b) of the Bihar Pension Rules. Hence, without fulfilling the conditions under Rule 43(b) and without

cancelling the order of promotion after enquiry by the competent authority, pension and other retiral benefits cannot be recovered that too without

giving opportunity to the retired employee and without giving any finding with reference to the mis-representation or misconduct on the part of the

concerned employee or any other employee merely on the recommendation of audit objection.â€​

From the impugned order, it further transpires that no sanction was also taken from the State Government in issuing show-cause notice. Though

there is some allegation that the petitioner was a dealing clerk at the place where his personal file was kept but certainly there was no interpolation in

getting the benefit which was given much earlier.

The only ground of the respondents which can be sustained in the eye of law is that the Building Construction Circle, Hazaribagh was rightly

objected the first time bound promotion given to the petitioner and the service file was returned vide memo no. 51 dated 16.01.2004 but it cannot be

said that non taking of any action by the respondents pursuant to the said objection; the petitioner is accountable because certainly he was only a clerk

in the office. As such the latches on the part of the respondents cannot be attributed to this petitioner in the name of fraud or misrepresentation.

The Hon’ble Apex Court has categorically held that unless there is fraud or misrepresentation; then only recovery is permissible. Admittedly, since

no proceeding has been ever initiated, the fraud or misrepresentation cannot be proved on assumption and presumptions and the order cannot be

passed on surmises and conjecture.

Now, coming to the ground with regard to passing departmental accounts examination; this Court in the case of S. Naseemuddin Vs. The State of

Jharkhand and Ors. reported in 2014 (4) JLJR 70 has held that annulling any promotion granted long ago, after such a long time and that too when

exemption had been granted subsequently coupled with the facts that there was no fraud or misrepresentation on the part of the petitioner, the

petitioner is entitled for the benefits granted earlier. Paragraph nos. 9, 11 & 12 of the said judgment is quoted herein below:-

“9. The facts, which have been noticed hereinabove in respect of the petitioner's service records, are not in dispute. He was granted time bound

promotion w.e.f. 1.3.1987 but he had not passed the departmental examination till then. The petitioner has strongly relied upon the judgments rendered

in the case of Lala Devendra Prasad (supra) and Bhola Nath Pattanayak (supra) in support of his contention that passing of departmental examination

was not a pre requisite for grant of such promotion. It is also not disputed that the petitioner was not able to complete the third part of the

departmental examination in the year 1997. However, he was granted exemption by a conscious decision taken by the respondents by order dated

28.12.2002 issued by the

Personnel and Administrative Reforms Department, Government of Jharkhand on the recommendation of the Principal Chief Conservator of Forest,

Jharkhand, Annexure 4. After the said decision the petitioner has been granted promotion in the year 2004 to the post of section officer. It fails to

stand to reason that when the exemption was already granted on 28.12.2002 the promotion granted to the petitioner thereafter should not be

questioned on the ground that the petitioner did not pass the departmental examination. However, that was not the end of the matter. The respondents

chose to grant him the benefit of first and second ACP also by order dated 16.10.2006, Annexure 2 issued by the Personnel and Administrative

Reforms Department, Government of Jharkhand. The entire impugned exercise has been done after his retirement on 31.7.2007 by issuance of

impugned notice on 23.2.2010. The impugned show cause notice shows that his promotion is invalid for the reason that he was given time bound

promotion in 1987 without passing the departmental examination. I am afraid such a ground taken after almost 27 years of the grant of time bound

promotion is neither reasonable nor proper in the eye of law, more so when there is no fraud or misrepresentation on the part of petitioner.

Further it appears from Annexure 10, which is an information under RTI that the respondents had found no reason to reconsider the decision of

reverting the petitioner to the post of Assistant on the same ground of having not passed the departmental examination when the time bound promotion

was granted in the year 1987. Therefore, in totality, considering the aforesaid facts and circumstances, reasons recorded hereinabove and the

judgment rendered by the Hon’ble Supreme Court on similar issues, the impugned action of the respondents in seeking to annul a promotion

granted to the petitioner to the post of section officer in the year 2004 cannot be sustained in the eye of law.

Accordingly, the said show cause notice dated 23.2.2010 is quashed. Consequently the information obtained under RTI, Annexure 10, also shall be

of no effect. Since the petitioner has retired on 31.7.2007 and 6th Pay Revision was implemented w.e.f. 1.2.2006, he would be entitled to the benefit

of revision on his post retirement dues as may be admissible along with its arrears in accordance with law. Let the admissible consequential benefits of

such pay revision be given to the petitioner within a period of 10 weeks from the date of receipt of a copy of this order.

After perusing the aforesaid judgments it can be held that the same is applicable in the instant case as in this case also the petitioner was not at fault

for getting the time bound promotion and first ACP which was given to him and after so many years the authority woke up that the time bound

promotion was wrongly given and that the relevant rule are being relied upon and that too after the petitioner had passed the required examination/had

exempted.

In yet another judgment this Court has dealt same and similar issue. Paragraph-13 of the Judgment delivered in WP(S) No.4168/08 and analogous

cases is quoted herein below:-

“13. Having heard the learned counsel for the respective parties at length and on perusal of the records, I am of the considered view that the

petitioners in the aforesaid writ applications have been able to make out a case for interference, in view of the following facts and reasons : -

(i) Admittedly, the petitioners are aggrieved by the impugned orders, whereby in some cases, the grant of time bound promotion/ACP have been

cancelled and the order of recovery of the payment made on the ground of time bound promotion or ACP has been passed by the respondents even

for non-passing of the accounts examination in view of the provisions of 157 (3) (j) of the Bihar Boards’ Miscellaneous Rules. Moreover, the

respondents have unilaterally passed the impugned order without issuance of any show cause notice or in compliance of the principles of natural

justice. Apart from that in some cases, the petitioners have retired from services and the action of the respondents in directing recovery from the

salary of the petitioners without resorting to the provisions of Pension Rules or the departmental proceeding cannot be sustained in the eyes of law.

(ii) On perusal of the order passed in C.W.J.C. No. 42 of 1988 (R) in the case of Kedar Prasad Singh-versus-The State of Bihar & Others vide

Annexure-10 as well as the order passed in C.W.J.C. No. 1824 of 1995 (R) in the case of Uday Kant Jha and others-versus-The State of Bihar &

Others vide Annexure- 11, the Hon’ble Court has been pleased to direct for grant of the time bound promotion without passing of the accounts

examination. In C.W.J.C. No. 18015 of 2011, in the case of Pramod Kumar-versus-The State of Bihar & Others and another writ petition vide

C.W.J.C. No. 16346 of 2011, in the case of Ashok Kumar and others-versus-The State of Bihar & Others the Hon’ble Court has directed for

grant of ACP without passing of the accounts examination and the said decision has been confirmed in L.P.A. No. 1260 of 2012 vide order dated

20.04.2015 by the Hon’ble High Court of Patna.

(iii) It is no more res integra that any order affecting the pay of an employee ought to be passed in compliance to the principles of natural justice but,

admittedly, no show cause notice prior to cancelling of the grant of time bound promotion and direction for recovery of the excess amount to the

employees has been passed without any show cause notice. On that score alone, the impugned orders are liable to be quashed and set aside.

In view of the aforesaid discussions and findings, the action of the respondents cannot be sustained in the eye of law and consequently, the

impugned order as contained in Memo No.130 dated 05.02.2013 (Annexure-11) and the order contained in Memo No.2199 dated 06.09.2010

(Annexure-5) are, hereby, quashed and set aside and accordingly petitioner is entitled for all consequential benefits.

If the amount which has been recovered from the petitioner in terms of the aforesaid impugned order; the same shall be refunded to the petitioner

within a period of three months from the date of receipt/production of a copy of this order, failing which the petitioner shall be entitled for simple

interest @ 6% from the date of deduction till the date of actual payment.

With the aforesaid terms, the instant writ application stands allowed and disposed of.