Sunil Kumar Singh & Anr vs The State of Bihar & Ors

Heard learned counsel for the petitioners as well as learned counsel for the State.

The petitioner is aggrieved by the notification dated 3.12.2014 (Annexure 3), issued by the Superintending Engineer, Public Health Engineering

Circle, Motihari, East Champaran (respondent no.4) modifying the date from which benefits of the 1st Assured Career Progression (ACP) had

earlier been granted to them under order dated 30.4.2005 (Annexure 1). The date of 1st ACP has been modified in respect of petitioner no.1 to

12.10.2007 in place of 9.8.1999, whereas in respect of petitioner no.2, the effective date of 1st ACP has been modified to 16.1.2010 instead of

1.12.1999.

It is the case of the petitioners that the modification/correction in the date of grant of 1st ACP to the petitioners has been done after lapse of

more than nine years of grant of the 1st ACP, i.e., on 7.3.2005 on the ground of mistake on the part of the respondent authorities themselves.

From perusal of Annexure 3 dated 3.12.2014, it appears that the aforesaid mistake came to the notice of the State authorities when the benefits of

the Modified Assured Career Progression was to be given to the employees in view of the decision of the Screening Committee dated 7.3.2005. It

has been stated in Annexure 3 that the date of 1st ACP is being modified with effect from the dates on which they have passed the departmental

examinations, as earlier the petitioners had not passed the departmental examination and were by mistake granted the benefits of 1st ACP vide

decision 7.3.2015.

Learned counsel for the State submits that the original grant of 1st ACP vide Office order dated 30.4.2005 (Annexure 1) contained the clause

that the same was subject to rectification in case of any error.

5.Though the said modification has been undertaken after nine years, the reason for modification appears to be sustainable. In view of the stand

taken by the State, learned counsel for the petitioner confines his prayer only to the effect that no recovery can be made from the petitioners by

virtue of the modification vide Annexure 3 as the same has been issued erroneously after nine years. He further submits that recovery may not be

permitted on basis of such delayed correction in respect of petitioners� entitlement of 1st ACP that also without affording them opportunity of

hearing before the civil consequences are inflicted upon them, as the same is inequitable and violative of Principle of Natural Justice.

Reliance has been placed upon a judgment in case of State of Punjab and others Vs. Rafiq Masih, white washer etc, reported in 2015(1) PLJR

261 SC. The Apex court while deciding the said case has taken note of the fact that though 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 and the same are said to be recovered at a belated stage. The Apex court, as a ready reference, has visualized the following few

situations, wherein recoveries by the employers, would be impermissible in law:-

(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from 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 employer's right to recover.�

7.In view of the law as noticed above, this Court finds that the petitioners� case is squarely covered under clause (i) and (iii) of the paragraph 12

of the judgment. This Court is of the view that recovery may not be effected from the petitioners to the extent of correction of their ACP as in the

case of the petitioners also as they are class III employees and the correction has been made by the employer� in exercise of their entitlement

at� a belated stage after about nine years of original grant of 1st� ACP vide decision of the Screening Committee dated 7.3.2005. This Court

would therefore restrain the respondent authorities from effecting any recovery in respect of benefits availed by the petitioners prior to the

correction of the date of grant of 1st ACP.

8.The writ petition is accordingly allowed to the extent indicated hereinabove.