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2006 DIGILAW 693 (PAT)

Paras Nath Singh v. State Of Bihar

2006-08-09

RAMESH KUMAR DATTA

body2006
Judgment Ramesh Kumar Datta, J. 1. Heard Mr. Ashok Kumar Keshari, learned Counsel for the petitioner and the learned G.P.IX for the State. 2. The petitioner seeks quashing of the Memo No. 1759 dated 19.9.2005 (Annexure-1) by which the Director Statistics & Evaluation, Bihar, respondent No. 2 has cancelled the first time bound promotion given to the petitioner w.e.f. 13.6.1984, and he has further prayed for quashing of the order contained in Memo No. 2214 dated 5.12.2005 (Annexure-2) by which the Director has ordered to recover Rs. 1,15,029.50 from the petitioner and has further crdered to deduct rupees five thousand per month from the salary of the petitioner since December, 2005. 3. The petitioner was appointed as orderly on 10.8.1965 and Subsequently was promoted to the post of machine boy on 29.8.1972. Thereafter the petitioner was made a routine clerk on 13.6.1974. By Order No. 1.72 dated 15.4.1995 the petitioner was granted 1st time bound promotion. Paragraph 3 of the said .promotion order! ( contained in Annexure-A ) clearly stipulated that the" time bound promotion was subject to confirmation by the Planning and Development Department, Bihar, Patna and if .it was found in course of confirmation that the promotion was wrong then any excess amount paid shall be recovered. By Memo No. 1759 dated 19.9.2005 the order, granting 1st time bound promotion to the petitioner was cancelled stating that the petitioner had already received- two promotions earlier and, therefore, he was not entitled to any time bound promotion. Thereafter, by Memo No. 2214 dated 5.12.2005 it was directed that an amount of Rs. 1,15,029.50 is found recoverable on account of cancellation of the. 1st time, bound promotion from the petitioner and it was directed, to recover and amount of Rs. 5000.00 per month from his salary from December, 2005 onwards and the remaining amount would be recovered from his Aostretiral benefits, leave encashment and gratuity. The petitioner .has challenged both the orders of cancellation of his 1st time bound promotion and the order of recovery. 4. 5000.00 per month from his salary from December, 2005 onwards and the remaining amount would be recovered from his Aostretiral benefits, leave encashment and gratuity. The petitioner .has challenged both the orders of cancellation of his 1st time bound promotion and the order of recovery. 4. So far, as the .challenge to the cancellation of 1st time bound promotion is concerned there can hardly be any doubt that the Resolution No. 10770 dated 30.12.1981 of the Finance Department, Government of Bihar ( Annexure- B) clearly provided that if an employee of the State Government does not receive any promotion during the 1st ten years of his service, then completion of ten years of service entitles. him to the "promotion which, is called. the 1st time .bound promotion.. Similar , is the provision with regard to the Second time bound. promotion. If an employee after completion of 25 years : of continuous and satisfactory service in , the said scale does not receive any further promotion then he is entitle to get second time bound promotion. 5. From the facts of the case of the petitioner also it is vide it that the petitioner had been granted two regular promotions earlier and, thus he would not be entitled to any time bound promotion and the same was wrongly granted to him by order dated 15.4. 1995 with effect. from 13 .6.1984. Thus, the cancellation of the same vide order dated 19.9.2005 car not be said to be contrary to .the provisions of law. 6. On the question of recovery, it is first submitted by the learned Counsel that the 1st time bound promotion was granted to the petitioner without any misrepresentation or fraud on his part. Thus, no recovery can be made on the same having been found to be wrongly granted to him. The second limb of the submission of learned Counsel is that. the authority of the State cannot. be permitted to cancel his 1st time bound promotion and specially make a recovery after 21 years since the same was granted to him, and after the passage of reasonable . period of time his 1st time bound promotion must be deemed to have been confirmed/approved by the competent authority. Learned counsel also relies on the doctrine of promissory estoppel and the doctrine of the legitimate expectations, He further relies on the doctrine of condition. period of time his 1st time bound promotion must be deemed to have been confirmed/approved by the competent authority. Learned counsel also relies on the doctrine of promissory estoppel and the doctrine of the legitimate expectations, He further relies on the doctrine of condition. According to him the petitioner cannot be saddled with the financial liability on account of inaction of the Government for such a long period of time, more so; if there is no explanation for the delay. Learned counsel submits that on the principle of equity no recovery can be made from him. The last submission of learned Counsel for the petitioner is that the action of the authorites amounts to violation of Article 21 of the Constitution of India since it involves question of life and livelihood. It is submitted that the petitioner is getting an over all salary of only about Rs. 8000.00 and recovery of Rs. 5000.00 per month from the same will lead his family to starvation. In support of his submissions learned Counsel relies upon several decisions of this Court, namely, the Bihar State Road Transport Corporation V. Yasoda Devi 1998 (3) PLJR 331 , Ashok Kumar V. the State of Bihar and Ors. 1999 (2) PLJR 829, and Mani Bhushan Chaudhary and Anr. V. Bharat Coking Coil Ltd. and Anr. 1993 (2) PLJR 40. 7. So far as the aforesa ,d propositions raised by the learned Counsel are concerned, I do not find that there is any support for such proposition in any of the cases cited by him. In the case of B.S.R.T.C. V. Yasoda Devi (Supra) promotion granted to an employee by the Corporation was sought to be cancelled after his retirement without giving him any opportunity of being heard and that too after long lapse of time. It was thus held by this Court that, by lapse of such a long period, the respondent has acquired right and also earned efficiency bar, Thus, the doctrine of condonation applies. The same is not the position in the present case. .Here the first time bound promotion granted clearly stipulates that it is subject to the confirmation of the higher authority, 8. The same is not the position in the present case. .Here the first time bound promotion granted clearly stipulates that it is subject to the confirmation of the higher authority, 8. So far as the case of Ashok Kumar (supra) is concerned there this Court had held that the time bound pro notion granted to-the petitioner was subject to the approval of the Finance Department and there it was found by the Finance department that time bound promotion had been wrongly granted to the petitioner which was ordered to be cancelled. and recovery was also ordered. This Court did not find anything wrong done by the authority in cancellation of making recovery. This Court, thus, in fact, decided the matter cortrary to the stand of the petitioner. 9. So far as the case of Mani Bhushan Chaudhary is concerned the same related to cancellation of promotion granted after long period of time without I complying the principles of natural justice. In the said case it was clearly held by this Court that the employees were allowed to render their services with the respondent Coal Company by giving them promotion so that they may not leave the company. For the paid reason it was held that the said, promotion cannot be cancelled. Thus, none of the cases cited by the petitioner helps his case 10. Learned counsel for the respondents has relied upon a division Bench Judgment of this Court in the case of Bihar State Electricity Board V. Madan Mohan Prasad and Ors. reported in 2001 (2) PLJR 58 . In paragraph 8 of the gaid Judgment it has been -. laid down as follows: Law is well settled. that money benefit paid to , an employee in excess of his entitlement should not normally be recovered from him lifter a long lapse of time particularly after his superannuatiation from service. It is, however, subject to two exceptions, namely, if the order granting the money benefit itself stipulates that the same is liable to be recovered if found erroneous at a laterstage or is subject to approval by authorities. The second exception is that such a money benefit can be recovered if it. is found at any later stage on that the same had flowed to the employee on account of fraud, misrepresentation or the like attributable to him. 11. The second exception is that such a money benefit can be recovered if it. is found at any later stage on that the same had flowed to the employee on account of fraud, misrepresentation or the like attributable to him. 11. The Division Bench clearly laid down the propositions firstly, that, if the order granting the money benefit itself stipulates that the same is liable to recovered if found erroneous at a later stage or is subject to approval by authorities and, secondly, when it is found that the same had flowed to the employee on account of fraud, misrepresentation, then the recovery can be made even after long lapse, of time. In the present case, also, the order granting time bound promotion clearly stimulates that it was subject to confirmation by the department and recovery would be made if it was found not to be correct. The case is squarely covered by law laid down in Madan Mohan Prasads case. 12. Learned G.P. has also relied upon \; another Division Berich Judgment in the case of the Secretary, Department of Planning and Development V. Awadh Muni Pasad reported in 2002 (1) PLJR 386 and another decision of a learned Single Bench of this Court in the case of Baijnath Pandey V. Etate of Bihar and Ors. 2003 (3) PLJR 407 . 13. From a perusal of the said decisions as well as law laid down by this Court in Madan, Prasads case it is evident that no relief can be granted to the petitioner, so far the order of recovery is concerned. The various doctrine like that or promissory estoppel relied upon by the petitioner have no application to the facts of the present case. -However, while passing the order of recovery the authorities have not taken into consideration the fact that the petitioner is getting total emolument of Rs 8000.00 per monthly Recovery 0of Rs. 5000.00 per month would cause great hardship to him and His family. The order of recovery dated 5.12.2005 is accordingly modified and it is directed that the authorities shall recover an amount of only. Rs. 2000.00 per month from :the next month onward until the petitioner retires on 31.5.2007 and thereafter the I remaining |amount may be recovered in the manner given in the said order dated 5.12.2005 . 14. The order of recovery dated 5.12.2005 is accordingly modified and it is directed that the authorities shall recover an amount of only. Rs. 2000.00 per month from :the next month onward until the petitioner retires on 31.5.2007 and thereafter the I remaining |amount may be recovered in the manner given in the said order dated 5.12.2005 . 14. In the result this writ petition is partly allowed to the extent indicated above.