The Secretary, Road Construction Department, Government of Bihar v. Patna
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.4685 of 2013 ====================================================== Syed Mazhar Haidar, S/o late Haidar Ali Haidar, R/o Moh. Imambari, West to Light House Cinema, P.O. + P.S. Laheriasarai, Darbhanga. .... .... Petitioner 1. The State Of Bihar. 2. The Secretary, Road Construction Department, Government of Bihar, Versus Patna. 3. The Superintendent Engineer, Road Construction Department, Road Circle, Darbhanga. 4. The Executive Engineer, Road Construction Department, Darbhanga. 5. The Accountant General, Bihar. .... .... Respondents ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 15-03-2013 Heard learned counsel for the parties. 2. In this writ application, the petitioner has prayed for the following relief:- “for setting aside the order as contained in Memo no. 472 dated 17/03/2012 passed by the Respondent no.3 thereby cancelling the time bound promotion granted to the petitioner with effect from 28/05/1991 on alleged ground of the petitioner not having passed the departmental accounts examination and for further quashing the order incidental order as contained in Memo No. 1299 dated 08/09/2012 whereby the respondent no.3 has directed for recovery of :0 2,14,986/- (Rupees Two Lakhs Fourteen Thousand Nine Hundred and Eighty Six Only) and also for issuance of a writ of mandamus or a writ in the nature of mandamus directing the respondents to grant all the due promotions to the petitioner including the admissible time bound promotions and the ACPs to which the petitioner is entitled
Legal Reasoning
Patna High Court CWJC No.4685 of 2013 (2) dt.15-03-2013 2/13 for in accordance with law.”
Legal Reasoning
3. Learned counsel for the petitioner in support of the aforementioned prayer has submitted that the petitioner who had entered in service on the post of Correspondence Clerk on 28.5.1981 was granted time bound promotion by an order dated 7.6.1997 with effect from 28.5.1991. He has also submitted that such time bound promotion having been allowed to continue till the date of retirement of the petitioner i.e. 31.5.2011, the same could not have been taken away by passing the impugned order on 17.3.2012 and that too without complying the principles of natural justice. In this regard, he has also submitted that the petitioner had actually passed the departmental examination in all the three papers on 7.7.1996 and as such, there was no error in granting time bound promotion to the petitioner which actually was given to him by an order dated 7.6.1997 with effect from the due date i.e. 28.5.1991. 4. Learned counsel for the State on the other hand has submitted that from the impugned order it would be clear that the petitioner was given a show-cause notice on 30.11.2010 while he was continuing in service and the petitioner had submitted his show-cause reply on 4.12.2010 and, therefore, there would be no question of violation of principle of natural justice. He has also Patna High Court CWJC No.4685 of 2013 (2) dt.15-03-2013 3/13 submitted that from the representation filed by the petitioner dated 1.7.2011 as contained in Annexure-2, it would be clear that the petitioner has actually not passed the departmental examination and as such, he cannot claim the benefit of time bound promotion. 5. In the considered opinion of this Court, there would be no difficulty in holding that a Clerk, the post which was held by the petitioner, would be required to pass the departmental examination and that is the requirement under Rule 157 of the Bihar Board Miscellaneous Rules, 1958 requiring passing of the departmental accounts examination as a condition precedent for grant of promotion to a Clerk. The time bound promotion also is a substitute of regular promotion and in fact the Government resolution no. 10770 dated 30.12.1981 in no uncertain terms had laid down that even for grant of time bound promotion and/or selection grade, a person is required to be otherwise fit for promotion. The respondent Superintending Engineer in fact has correctly relied on the following passage of the Government resolution dated 30.12.1981 which for the sake of clarity and convenience is quoted hereinbelow:- “11(ii) If an employee who is otherwise fit for promotion and has not been able to get a single promotion by 10 years of service notwithstanding the fact that a specified percentage of the cadre is already provided is the different levels of promotion inclusive of the selection grade, he Patna High Court CWJC No.4685 of 2013 (2) dt.15-03-2013 4/13 should be promoted to the junior selection grade at the end of the ten years.” “11(vi) The other conditions the rules and procedure meant for usual promotion should be followed in case of the aforesaid time bound system also.” ,oa “13. The other condition rule and procedures meant for usual promotion shall be followed in case of promotion to selection grade as well as for time bound promotion. No employees shall be allowed promotion into selection grade or be given time bound promotion unless he is otherwise fit for promotion.”
Decision
6. In view of the above, there can be no difficulty in holding that if the petitioner has not passed the departmental accounts examination, he would not be entitled for grant of time bound promotion. The question, however, is as to whether the petitioner as a matter of fact had passed the departmental examination. In this regard, his pleadings are at variance, inasmuch as, in paragraph nos. 6 & 7, he has taken a plea of passing the departmental examination by stating that; “6. That it is respectfully submitted that prior to obtaining this promotion the petitioner had appeared in the departmental examination conducted on 15/07/1983 for Hindi Noting and the petitioner completed Drafting and the preliminary of the 1st Accounts Paper and of the 2nd conducted Accounts Paper on 04/01/1987|05/01/1987 and further he completed the final of the 2nd Accounts Paper conducted on 28/10/1990|29/10/1990. Patna High Court CWJC No.4685 of 2013 (2) dt.15-03-2013 5/13 7. That subsequently the petitioner completed the final of the 1st and 3rd Accounts Paper upon examinations being conducted on 06/07/1996|07/07/1996.” 7. However, from his representation dated 1.7.2011 which was filed after his retirement, he had taken a contrary plea as would be evident from the following portion of his representation:- ^^tc mDr U;kns”k ds vuqikyu esa foHkkxh; ys[kk ijh{kk mrh.kZ gksuk dkyc) izksUufr ds fy, vfuok;Z gh ugha gS] rks fQj fdl frfFk dks ikl gS ;k ugha] bldk iz”u gh ugha mBrkA** 8. The petitioner in fact has also not brought on record either the show-cause notice which was given to him while he was continuing in service on 30.11.2010 nor has he brought on record his own show-cause reply dated 4.12.2010. This Court, therefore, has got no authentic material to decide the question as to whether the petitioner had passed the departmental accounts examination. It has to be always kept in mind that the person concerned has to pass the departmental accounts examination with higher proficiency in order to earn promotion as is the requirement under Article 157 of the Bihar Board Miscellaneous Rules. There is no averment in paragraph nos. 6 & 7 of the writ application as to what marks the petitioner had secured in his first, second and third accounts papers which he is said to have cleared on 15.7.1983, Patna High Court CWJC No.4685 of 2013 (2) dt.15-03-2013 6/13 5.1.1987, 29.10.1990 and 7.7.1996. These matters are essentially required to be gone into by the competent authority on the basis of official records. 9. In this regard it is found that the petitioner’s show- cause reply dated 4.12.2010 in response to the show-cause notice dated 30.11.2010 has been disposed of only by the impugned order dated 17.3.2012 when the petitioner had already retired from service. Even in such order, the petitioner’s plea of having passed the departmental accounts examination has not been taken into account, much less considered. The Superintending Engineer in fact has been more or less swayed by the order of the Divisional Commissioner who had on being sent the papers relating to the petitioner had recalled his order earlier confirming the grant of time bound promotion to the petitioner vide his letter dated 3.3.2012. That, however, cannot be the mode of consideration specially when the petitioner was not even furnished the copy of letter of reference made by the Superintending Engineer to the Divisional Commissioner dated 11.5.2011 or the resultant letter of the office of the Commissioner dated 3.3.2012 on the basis of which the impugned order has been passed. 10. Thus, even if this Court holds that the petitioner was given a show-cause notice and his show-cause reply was also Patna High Court CWJC No.4685 of 2013 (2) dt.15-03-2013 7/13 obtained before passing of the impugned order, its non- consideration in the impugned order would still attract the vice of violation of principle of natural justice and consequently make the impugned order vulnerable. The concept of natural justice does not remain confined only to the issuance of show-cause notice or obtaining a show-cause reply but in fact consideration of such show-cause reply in an effective manner as must be reflected from the order itself is also sine qua non for strict observance of the principle of natural justice. As a matter of fact, when extraneous materials beyond the show-cause notice in the form of letter of reference made by the Superintending Engineer to the office of the Divisional Commissioner dated 11.5.2011 and the order of the office of the Divisional Commissioner dated 3.3.2012 have also been taken into account for passing the impugned order dated 17.3.2012 as contained in Annexure-1 to the writ application, the grievance of the petitioner as with regard to its being bad and unsustainable due to non-observance of the principle of natural justice has to be accepted by this Court. 11. There is yet another facet to the subsequent impugned order dated 8.9.2012 which actually is more or less a consequential order and in continuation of the main order dated 17.3.2012. It has to be kept in mind that by order dated 17.3.2012, Patna High Court CWJC No.4685 of 2013 (2) dt.15-03-2013 8/13 the petitioner’s first time bound promotion in the pay-scale of Rs. 1400-2300 with effect from 28.5.1991 was cancelled and by the subsequent order dated 8.9.2012, the petitioner has also been subjected to recovery of an excess amount of salary and emoluments drawn by him to the tune of Rs. 2,14,986/-. Since this order has been again passed without issuance of a show-cause notice and in fact only on the basis of the representation of the petitioner dated 29.3.2012, copy whereof is also not on the record of this case, this Court must hold that normally after retirement of the petitioner, he could not have been subjected to recovery of a huge amount of Rs. 2,14,986/- unless there were materials to show fraud or misrepresentation on the part of the petitioner in obtaining his first time bound promotion. 12. In other words if the order of first time bound promotion to the petitioner passed by the Superintending Engineer, Road Construction Department, Road Circle in letter no. 992 dated 7.6.1997 was passed on a specific plea of the petitioner that he had passed all the three papers of the departmental accounts examination as has been asserted in this writ application in paragraph nos. 5 & 6, though he had not done so, he could still be subjected to recovery despite his retirement from service specially when the show-cause notice was issued to him before his Patna High Court CWJC No.4685 of 2013 (2) dt.15-03-2013 9/13 retirement on 30.11.2010 and its reply also was filed by the petitioner on 4.12.2010. On the other hand, if the petitioner’s time bound promotion by the Superintending Engineer in his letter no. 992 dated 7.6.1997 with effect from 28.5.1991 was given without any fraud or misrepresentation on the part of the petitioner, he could not have been at least subjected to recovery of a sum of Rs. 2,14,986/-. 13. Law in this regard has been well settled by the Apex Court in the case of Syed Abdul Qadir & Ors. Vs. State of Bihar & Ors. reported in 2009(3)SCC 475 as also in the case of Chandi Prasad Uniyal & Ors. Vs. State of Uttarakhand & Ors. reported in 2012(8) SCC 417. In both the aforesaid judgments, the Apex Court has only taken the humanitarian aspect that a retired person should not be normally subjected to recovery of an excess amount of salary and emoluments withdrawn by him but then this will depend on the facts and circumstances of each case. Here in this case, since the action against the petitioner for cancellation of time bound promotion was initiated even before his retirement by issuing him a show-cause notice on 30.11.2010, if the respondents have material to show that such time bound promotion was granted to the petitioner on the basis of misrepresentation made by him regarding his passing of departmental accounts examination, they Patna High Court CWJC No.4685 of 2013 (2) dt.15-03-2013 10/13 will be well within their domain to recover such excess amount as was held in the case of Chandi Prasad Uniyal (supra), relevant portion whereof reads as follows:- “14. We are concerned with the excess payment of public money which is often described as “taxpayers’ money” which belongs neither to the officers who have effected overpayment nor to the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in in such situations. The question to be asked is whether excess money has been paid or not, may be due to a bona fide mistake. Possibly, effecting excess payment of public money by the government officers may be due to various reasons like negligence, carelessness, collusion, favouritism, etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment. 15. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case [(2009)3 SCC 475] and in Col. B.J. Akkara case [(2006)11 SCC 709], the excess payment made due to wrong/irregular pay fixation Patna High Court CWJC No.4685 of 2013 (2) dt.15-03-2013 11/13 can always be recovered. 16. The appellants in the appeal will not fall in any of these exceptional categories, over and above, there was a stipulation in the fixation order that in the condition or irregular/wrong pay fixation, the institution in which the appellants were working would be responsible for recovery of the amount received in excess from the salary/pension. In such circumstances, we find no reason to interfere with the judgment of the High Court. However, we order that the excess payment made be recovered from the appellant’s salary in twelve equal monthly installments starting from October 2012.” 14. In view of the aforesaid discussions, this Court would quash both the impugned orders contained in Annexure-1 and 1/A dated 17.3.2012 and 8.9.2012 respectively and remit the matter back to the Superintending Engineer, Road Construction Department, Road Circle, Darbhanga. The petitioner should treat both the impugned orders as a show-cause notice and file his compact representation as to why he should not be subjected to cancellation of time bound promotion on account of his not passing the departmental accounts examination and also as to why he should not be subjected to recovery of the excess amount drawn by him. Once the petitioner would file his representation in the form of show-cause reply, the Superintending Engineer, after looking into all the relevant aspects, will pass a reasoned order. This exercise, however, must be completed within a period of Patna High Court CWJC No.4685 of 2013 (2) dt.15-03-2013 12/13 three months from the date of filing of the show cause reply by the petitioner. 15. As with regard to the rest of the prayer of the petitioner relating to promotion in the form of time bound promotion and/or ACP, it has to be noted that the petitioner can be only entitled for grant of time bound promotion or ACP only if he has passed the departmental accounts examination, inasmuch as, both in the government resolution dated 30.12.1981 and in the ACP Rules, 2003, there is a clear indication of the necessity of passing of the departmental examination. Therefore, the issue relating to grant of regular promotion, time bound promotion and ACP will also be decided by the Superintending Engineer, Road Construction Department, Road Circle, Darbhanga (Respondent No.3) separately after passing the order on the show cause reply to be filed by the petitioner. 16. Before parting with, it is made clear that if the petitioner is not found entitled for grant of time bound promotion and eventually the benefit same is taken away in the order of the Superintending Engineer, the petitioner’s entire retirement benefit will be calculated without taking into account the benefit of the higher pay drawn by the petitioner on the date of his retirement. In other words, the petitioner’s last salary will be as if he was never Patna High Court CWJC No.4685 of 2013 (2) dt.15-03-2013 13/13 given time bound promotion or its replacement pay-scale from time to time from 1991 to 2011. Thus, even if the respondents on account of the retirement of the petitioner let him off by not making any recovery of the excess amount, the petitioner will not be entitled to also taken into account his last pay drawn with the benefit of time bound promotion for the purpose of payment of his retirement benefit including pension, gratuity and leave encashment which would be calculated on the basis of the last pay which the petitioner could have drawn without being given the benefit of time bound promotion. 17. With the aforementioned observations and direction, this application is disposed of. (Mihir Kumar Jha, J) Patna High Court Dated the 15th March 2013 A.F.R./Rishi/-