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2000 DIGILAW 893 (PAT)

Dineshwar Singh v. Bihar State Electricity Board

2000-07-19

R.M.PRASAD

body2000
Judgment 1. In this writ petition the petitioner is aggrieved by the order dated 12.8.1995, contained in Annexure 4, where by and where under the respondent authorities have directed for recovery of the alleged excess payment made to him by way of increments on account of non-passing of Hindi Noting & Drafting Examination (hereinafter referred to as the Examination). 2. The case of the petitioner is that the Cabinet Secretariat had issued a Notification dated 15.6.1968, by which passing of the Examination was made compulsory for the employees who have necessity of the Examination in their daily course of business, but in case where the employees have no connection with the Hindi noting and drafting, the said requirement was not necessary. It is stated that as the service of the petitioner is satisfactory, he got various annual increments and promotions in time. However, on 12.8.1995, the Electrical Executive Engineer, Electric Supply Division, PESU, Patna (respondent no. 2) ordered for deduction of annual increments from the salary of the petitioner on account of non-passing of the examination, though the petitioner had no connection in his daily course of business with the noting and drafting. It is asserted that the petitioner had to fill up the printed receipt and hand it over to the consumer on receipt of the electric charges and then to calculate the daily receipts only. It has been, inter alia contended that the authorities have willingly granted him annual increments every year since 1972 and there is no fraud and misrepresentation on the part of the petitioner. 3. In the counter affidavit filed on behalf of the Board the said facts have not been denied. However, it is stated that the Board came out with Standing Order No. 118 dated 19.2.1962 providing therein that passing of the examination by 31.12.1962 is necessary and those will not pass such examination, their annual increment shall be withheld. It is stated that the State of Bihar, in exercise of the powers conferred upon them under Article 309 of the Constitution of India. Framed rule making it compulsory for the Goverment servants to pass the examination. The said rule was notified vide, Notification No. 361 dated 15.6.1968, contained in Annexure-2 to the writ petition. It is stated that the State of Bihar, in exercise of the powers conferred upon them under Article 309 of the Constitution of India. Framed rule making it compulsory for the Goverment servants to pass the examination. The said rule was notified vide, Notification No. 361 dated 15.6.1968, contained in Annexure-2 to the writ petition. According to the respondents, clause 7 of the said notification provides that no annual increment shall be admissible to the employees of the Board who have not passed the examination nor they shall be allowed to cross the efficiency bar. Further, clause 8 of the said notification could not be cumulative one, no sooner an employee will pass the examination, he becomes entitled for annual increment with effect from the date of passing of the examination. It has thus been contended that the respondent Board came out with letter no. 911 dated 17.11.1990 (Annexure-C) providing therein that the employees of the Board, who do not pass the examination within a period of one year, shall not be entitled for annual increment. It has further been contended that it is not the case of the petitioner that he has even appeared in the examination and/or passed the examination. However, it is accepted that the petitioner had appeared in the examination which was held on 27.6.1999 and has been declared successful, vide letter no. 219 dated 18.12.1999 (Annexure 5). 4. Learned counsel for the Board has relied upon a Division judgment of this Court in the case of Bijay Bahadur vs. The Bihar State Electricity Board and ors. reported in Patna Law Reporter 1999 Patna 26. In the counter affidavit it is stated that the date of judgment is 19th May, 1998 and thereby it shall be applied in all such cases where the employee/officer concerned has passed the examination after 16.7.1979, but prior to the date of judgment i.e. 19th May, 1998 and not otherwise. 5. Learned counsel for the petitioner has submitted that there is no substance in the said stand of the respondent Board. In the case of Bijay Bahadur vs. The Bihar State Electricity Board (supra) also the writ petitioners were working with the respondent Board in different capacities and were given yearly increments based on service records without any misrepresentation by them. They passed the examination sub-sequently in the year 1993. In the case of Bijay Bahadur vs. The Bihar State Electricity Board (supra) also the writ petitioners were working with the respondent Board in different capacities and were given yearly increments based on service records without any misrepresentation by them. They passed the examination sub-sequently in the year 1993. Thereafter the Board ordered for recovery of salary paid to them as increments only on the ground that they did not pass the examination, which was a condition precedent for grant of annual increment in terms of the policy decision of the Board. The Division Bench following the decision of the Apex Court in the case of Sahib Ram vs. State of Haryana, reported in 1995 Supp. (1) SCC 18, held that as the increments have been paid to the petitioners by the Board without any misrepresentation by them and as the writ petitioners had already passed the examination in the year 1993 itself, at such a belated stage, the Board cannot be allowed to pass an order for recovery of the said amount as the said amount has already become due to them. 6. Learned counsel for the Board has submitted that against the said judgment of the Division Bench, the Board filed appeal in which the Apex Court, vide judgment in the case of Bihar State Electricity Board vs. Bijay Bahadur, reported in Pat. L.R. 1999 S.C. 160, has disapproved the Division Bench judgment of this Court given in paragraph 13 that the Board shall not be allowed to pass an order for recovery of the said amount as the said amount has already become due to them. It has been submitted by the learned counsel for the Board that this has been found to be contrary to rule 8 of the Regulation by the Apex Court which records that no arrears of the stopped increments shall be payable even though the person would pass the examination later on and, accordingly, that part of the observation of the Division Bench judgment was disapproved by the Apex Court. As such, according to the learned counsel for the Board, there cannot be any difficulty in making recovery of the excess amount paid to the petitioner by way of increment on account of non-passing of the examination even in case he has passed the examination now. 7. As such, according to the learned counsel for the Board, there cannot be any difficulty in making recovery of the excess amount paid to the petitioner by way of increment on account of non-passing of the examination even in case he has passed the examination now. 7. This Court finds it difficult to accept the said submission of the learned counsel for the Board. It is not that the Apex Court has not approved the said decision of the Division Bench. The Division Bench has observed that the Board shall not be allowed to pass an order for recovery of the said amount as the said amount has already become due to them, (Underlying is by this Court) which obviously means that the reason given by the Division Bench that the Board shall not be allowed to recover the said amount as the said amount has already become due to them did not find favour with the Apex Court. Thus, the ground given by the Division Bench for not making recovery as the said amount has already become due to them was not accepted and not that the recovery of excess amount paid by way of increments on account of non-passing of the ex amination is permissible in all cases. The Apex Court concurring with the observation in Sahib Rams case came to the conclusion that since payments have been made without any representation or a misrepresentation, appellant Board could not possibly be granted any liberty to deduct or recover the excess amount paid by way of increments at an earlier point of time. Such act or acts on the part of the appellant Board cannot under any circumstances be said to be in consonance with equity, good conscience and justice. The Apex Court held that the concept of fairness has been given a goby. As such, the action initiated for recovery was held to be not sustainable under any circumstances. However, the Apex Court restricted the order to the facts of the writ petitioners. 8. In the present case also, there is hardly any difference on facts. The Apex Court held that the concept of fairness has been given a goby. As such, the action initiated for recovery was held to be not sustainable under any circumstances. However, the Apex Court restricted the order to the facts of the writ petitioners. 8. In the present case also, there is hardly any difference on facts. The only difference is that the petitioners before the Division Bench had passed the examination before the order for recovery was passed whereas in the present case, the petitioner passed the said examination after the order for recovery was passed which, in my opinion, will not be of any relevance to distinguish the two cases in view of the principle decided by the Apex Court. In the case of Sahib Ram vs. State of Haryana (supra), wherein the Apex Court, while considering the fact that it was not on account of any misrepresentation made by the appellant that the benefit of higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault, held that the amount paid till date may not be recovered from the appellant. 9. In the present case, it is not the case of the respondents that it was on account of any representation or misrepresentation that the petitioner drew the increments without passing the Examination. 10. Under such circumstances, in my opinion, the impugned order for recovery of the alleged excess amount drawn by way of increments on account of non-passing of the examination cannot be sustained and the same is, accordingly, quashed. 11. In the result, the writ petition is allowed, but without costs.