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2025 Supreme(Raj) 1285
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
Vinit Kumar Mathur, J.
Dinesh Vyas S/o Shri S.N. Vyas - Petitioner
Versus
The State Of Rajasthan, Through The Secretary, Finance Department and ors. - Respondents
S.B. Civil Writ Petition No. 19650/2022
Decided On : 01-05-2025
Mr. Yash Tripathi with Mr. Anirudh Kothari for Petitioner(s); Mr. Pawan Bharti for Mr. I.R. Choudhary, AAG; Mr. Mahaveer Prasad Pareek for Respondent(s)
Excess payments made without misrepresentation cannot be recovered; withdrawal of promotion requires due process and opportunity to be heard.
Headnote:
(A) Constitution of India - Articles 14 and 16 - Writ petition against pay fixation and recovery order - Petitioner retired as Deputy Director and was promoted to Joint Director post, later withdrawn due to non-existence of vacancy - Recovery ordered without show cause notice - Promotion cannot be withdrawn without opportunity to be heard. (Paras 3, 10, 11, 13)
(B) Promotion and Recovery - The principle that excess payments made without misrepresentation or fraud cannot be recovered, as established in the case of Jogeswar Sahoo. (Paras 12)
Facts of the case:
The petitioner, after retirement, was promoted to Joint Director but the promotion was later revoked due to the non-existence of a vacancy at the time of promotion, leading to a revised pay fixation and recovery order. (Paras 3, 10)
Findings of Court:
The court found that the recovery order was not sustainable as it was issued without giving the petitioner an opportunity to be heard, and the promotion could not be withdrawn after nine years without fault on the part of the petitioner. (Paras 11, 13)
Issues: The main issues were whether the promotion could be withdrawn without a show cause notice and the legality of the recovery order. (Paras 5, 11)
Ratio Decidendi: The court ruled that the recovery order was arbitrary and illegal, emphasizing that the petitioner had not misrepresented any facts and deserved an opportunity to be heard before any adverse action was taken. (Paras 11, 13)
Result: Writ petition allowed; orders quashed and set aside.
ORDER :
Vinit Kumar Mathur, J.
1. Heard learned counsel for the parties.
2. The present writ petition has been filed against the orders dated 02.07.2018 (Annex.5), 30.01.2019 (Annex.6) and 13.07.2022 (Annex.7), whereby, the pay fixation of the petitioner has been revised and recovery order has been issued.
3. Briefly noted the facts in the present writ petition are that the petitioner after rendering the service in the respondent- department retired from the post of Deputy Director. After his retirement, the respondents granted him promotion on the post of Joint Director (Agriculture/Water Shed Development and Soil Conversation Department) w.e.f. 2008-2009. The pay fixation orders were issued and the petitioner was getting the monthly pension on the PPO issued by the respondents. The respondents recalled the order of promotion issued to the petitioner on the post of Joint Director on account of the fact that there was no vacant post of Joint Director in the year 2008-2009. As the promotion order of the petitioner was withdrawn, therefore, the respondents have issued an order dated 30.01.2019 for re-fixation of pay of the petitioner and recovery thereafter. As a consequence, a revised PPO has also been issued. Hence, the present writ petition has been filed.
4. Learned counsel for the petitioner submits that the petitioner while discharging his duties in the respondent-Department never misrepresented any facts and the department on its own had held the Departmental Promotion Committee for promotion to the post of Joint Director. He further submits that since the petitioner had retired in the year 2008, therefore, the benefits were granted to the petitioner after his retirement.
5. Learned counsel for the petitioner further submits that the petitioner has not furnished any incorrect information to the respondents- department for getting the promotion on the post of Joint Director. He further submits that since the department after holding the review DPC has promoted the petitioner on the post of Joint Director and thereafter, the Pension Payment Order has been issued, therefore, the promotion of the petitioner cannot be withdrawn and no recovery can be effected without issuing a show cause notice him. He, therefore, submits that the action of the respondents in passing the orders dated 02.07.2018 (Annex.5), 30.01.2019 (Annex.6) and 13.07.2022 (Annex.7) is absolutely arbitrary, illegal so as to violative of Articles 14 and 16 of the Constitution of India.
6. To buttress his contentions, learned counsel for the petitioner relied upon the judgment of the Hon’ble Supreme Court in Civil Appeal No(s). 4989/2025 (Arising out of SLP(C) No.5918/2024) (Jogeswar Sahoo & Ors. Vs. The District Judge, Cuttack & Ors.), decided on 04.04.2025.
7. Learned counsel for the petitioner, therefore, prays that the writ petition may be allowed and the orders dated 02.07.2018 (Annex.5), 30.01.2019 (Annex.6) and 13.07.2022 (Annex.7) may be quashed and set aside.
8. Per contra, learned counsel for the respondents submits that since there was no vacancy of the Joint Director in the year 2008- 2009, therefore, the department has committed an error while holding DPC and promoting the petitioner on the post of Joint Director. Learned counsel fairly submits that the petitioner has not misrepresented before the department or has not secured the promotion after furnishing incorrect facts. Learned counsel further submits that since the promotion was granted erroneously to the petitioner, therefore, the same is being withdrawn at this stage and as a consequence, the pay fixation of the petitioner has been revised and recovery order has been issued. Learned counsel for the respondents very fairly submits that before issuing the recovery notice, no show cause notice was issued to the petitioner.
9. I have considered the submissions made at the bar and have gone through the relevant record of the case.
10. The admitted facts in the present writ petition show that while working i
