Umesh Kumar Thakur vs State of Jharkhand And Ors

Heard, Mr. Jay Shankar Tiwary, learned counsel for the petitioner and Mr. Sreenu Garapati, learned counsel for the respondent-State.

This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.

The petitioner preferred this writ petition for quashing of office order dated 26.12.2019 contained in annexure-7 whereby the promotion granted to the petitioner has been cancelled.

Mr. Jay Shankar Tiwary, learned counsel for the petitioner submits that the petitioner was appointed on 11.12.1974 on the post of Chainman in the office of Superintending Engineer, Rural Engineering Organization, working circle, Hazaribagh on 4th grade. After 9 years of service, a letter dated 30.10.1993 has been issued from the office of respondent no. 4 for promotion or appointment on the post of treasure. The petitioner has been promoted on the post of chainman grade-2 vide vide office order dated 21.05.2008. The petitioner retired from the service on 28.02.2017 from the post of Draftsman grade 2. Vide office order dated 26.12.2019, the promotion of the petitioner has been cancelled.

Mr. Jay Shankar Tiwary, learned counsel for the petitioner relied on judgment in the case of "Smt.Normi Topno Versus The State Of Jharkhand Through Its Secretary, Department Of Health " Reported in (2007) (4) JLJR 466 (Full Bench). The relevant para 42 and 47 of the said judgment is quoted here-in- below:

" 42 It is no doubt true, the Supreme Court held that when the promotion is ab-initio void, then on that basis, recovery can be made. It is also true that the power is vested with the State to recover the excess payment which was given wrongly or by mistake. But, where the promotion is said to be ab-initio void or the excess payment was said to be made on the basis of wrong calculation or due to the mistake committed in the department, then, it has to be found out as to how the promotion could be held to be ab-initio void and how there was miscalculation or mistake and if it is so, by whom it was committed and all these things have to be verified only through the inquiry by giving proper opportunity to the person concerned, who is likely to be affected by the conclusion of the inquiry. The conclusion without any inquiry or finding that there is a pecuniary loss to the Government due to the misconduct or mistake of pensioner even without giving opportunity to the person concerned, would certainly cause prejudice to the said person.

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."

Per contra, Mr. Sreenu Garapati, learned counsel for the respondent-State submits that the meeting of the Establishment Committee was held on 31.07.2019 wherein decision was taken that since in a similar issue in case of Sri Arun Kumar regarding promotion from class IV to Class III in which case direction was given by the Chief Engineer vide letter dated 30.01.2012 to take action as per letter dated 17.12.2011 issued by the Department of Personnel, Administrative Reforms and Rajbhasha, promotion granted to the petitioner as well as to Sri Gutab Peter Surin be cancelled.

The contention of Mr. Sreenu Garapati, learned counsel for the respondent-State is not accepted in view of the fact that the action against the petitioner was taken in view of the fact that case of the petitioner was on the same line as of Arun Kumar (petitioner in W.P.(S) No. 298 of 2020) and the said W.P.(S) No. 298 of 2020 moved by Arun Kumar, has been allowed by this Court by order dated 17.10.2020.

In view of the judgment of the Full Bench of the Hon'ble Supreme Court in the case of of "Smt.Normi Topno" (supra) the impugned order is not sustainable in the eye of law. Accordingly, impugned order dated 26.12.2019 is quashed. The writ petition is allowed. Pending, I.A, if any stands disposed of.

Interim order dated 02.07.2020 is vacated.