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2011 Supreme(Jhk) 967
2012 (1) JCR 113 (Jhr))
R.R. PRASAD. J.
Ajit Kant Sahay. ……Petitioner.
Versus
The State of Jharkhand & Ors. ..…..Respondents.
W.P. (S) No. 1436 of 2011.
Decided on : October 21. 2011
For the Petitioner:Mr. P. K. Sinha, Advocate.
For the State : J.C. to A.G.
The main legal point established in the judgment is that the cancellation of promotions and recovery of excess amount must be justified and comply with the principles of natural justice.
Headnote:
Time Bound Promotion - Service Conditions - Rule 157(3)(J) of the Bihar Board's Miscellaneous' Rules, 1358 - The court discussed the cancellation of the 1st Time Bound Promotion and the shifting of the date of grant of A.C.P, and the recovery of excess amount drawn by the petitioner. The court referred to legal provisions and previous judgments to conclude that the cancellation of the promotion and the recovery of excess amount were not justified, and the orders were set aside.
Fact of the Case:
The petitioner was granted promotions and later faced cancellation of the 1st Time Bound Promotion and shifting of the date of grant of A.C.P, leading to recovery of excess amount drawn. The petitioner challenged these orders in the writ application.
Finding of the Court:
The court found that the cancellation of the 1st Time Bound Promotion and the shifting of the date of grant of A.C.P, along with the recovery of excess amount, were not justified and violated the principle of natural justice.
Issues: Cancellation of promotions, shifting of the date of grant of A.C.P, recovery of excess amount, violation of natural justice.
Ratio Decidendi: The court held that the cancellation of the promotion and the recovery of excess amount were not justified, citing legal provisions and previous judgments. The orders were set aside, and the respondent was directed to pay arrears of pension to the petitioner.
Final Decision: The writ application was allowed, and the orders cancelling the promotions and shifting the date of grant of A.C.P, along with the recovery of excess amount, were set aside. The respondent was directed to pay arrears of pension to the petitioner within three months.
By the Court.- The petitioner was appalled on the post of Clerk on 5.11.1977 in the Department of Mines and Geology in the erstwhile State of Bihar. In course of time. 1st Time Bound Promotion was given with effect from 5.11.1987. On implementation of the scheme of assured career progression. the petitioner was granted 1st AC.P with effect from 9.8.1999 in the pay scale of Rs.5000-8000/- and 2nd AC.P with effect from 5.11.2001 in the pay scale of Rs.5500-9000/- vide order as contained in letter No.575 dated 31.3.2005. When the petitioner completed 30 years of service he on the ground of ill-health applied for grant of VRS on 10.12.2008. While the matter relating t6 grant of VRS was pending an order was passed on 11.9.2009 by the Deputy Secretary. Department of Mines and Geology. Government of Jharkhand, Ranchi as contained in memo No.1275 dated 11.9.2009 (Annexure 6) whereby date of grant of 1st A.C.P and the 2nd A.C.P to the petitioner was shifted to 8.6.2004 as that was the date when petitioner cleared 2nd paper of the accounts examination and at the same time excess amount drawn by the petitioner was ordered to be adjusted from the amount to be paid to the petitioner on fixation of pay. The said order has been challenged in this writ application. At the same time, another order was passed by the Director of Mines as contained in memo No.2326 dated 27.12.2010 (Annexure 11) whereby 1st Time Bound Promotion given with effect from 5.11.1987 was cancelled as on that day he had not passed the departmental examination and thereby the amount drawn on account of enhancement of pay on account of grant of 1st Time Bound Promotion was directed to be recovered in one lump sum from the arrears of pay which would be paid to the petitioner on account of grant of AC.P. revised pay scale. The said order as contained in Annexure 11 has also been challenged.
2. Learned counsel appearing for the petitioner submitted that admittedly the petitioner had been granted 1st Time Bound Promotion with effect from 5.11.1987 but that was cancelled, vide order dated 27.12.2010 after more than 23 years on the ground that at the time of grant of 1st Time Bound Promotion the petitioner had not passed the departmental examination rather he had passed the departmental examination in the year 2004. The said order perhaps was passed under wrong notion that one in terms of Rule 157(3)(J) of the Bihar Board's Miscellaneous' Rules, 1358 needs to pass examination of accounts for having promotion but that rule in case of Md. Samsuddin v. State of Bihar. 1983 PWR 347 has been held to have been devoid of any statutory force and thereby there is no necessity of passing examination of accounts for having promotion. It was pointed out that some proposition has been laid down in other cases such as Kedar Prasad Singh v. State of Bihar and others. C.W.J.C No.42 of 1989 (R) and Uday Kant Jha and others v. State of Bihar and others. C.W.J.C No. 1824 of 1995 (R).
3. By referring those judgments. it was submitted that the order as contained in Annexure 11 cancelling 1st Time Bound Promotion granted to the petitioner on 5.11.1987 and seeking recovery of the amount said to have been drawn in excess on that count is bad and is fit to be set aside.
4. It was further submitted that it is also the case of the respondents that the petitioner had wrongly been given benefit of 1st and 2nd AC.P with effect from 9.8.1999 and 5.11.2001 respectively as before grant of 1st AC.P and 2nd AC.P. the petitioner had never passed the examination of accounts rather the petitioner had passed the examination in the year 2004 and thereby the petitioner is entitled to have benefit of AC.P with effect from 8.6.2004 and as such. excess amount drawn has been ordered to be recovered but the petitioner had been granted 1st A.C.P and 2nd A.C.P without there being my misrepresentation on the part of the petitioner and therefore the authority is not competent to recover the amount said to have been drawn in ex
