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2008 DIGILAW 895 (JHR)

Saijuddin Sheikh v. State of Jharkhand

2008-08-07

R.A.PRASAD

body2008
Order Heard learned counsel appearing for the petitioner and learned counsel appearing for the State. 2. The petitioner, initially was appointed on the post of 'Assistant Teacher' in Matric Trained Scale and was posted in the Middle School, Jampur, District Sahebganj. Subsequently, he having been promoted to the post of 'Headmaster' under order as contained in Letter No. 12673 dated 29.11.1967, was granted B.A. Trained Scale w.e.f. 6.10.1967. The petitioner was given Scale of Junior Selection Grade, under order as contained in Memo No. 15006-8 dated 1.7.1988, issued by the District Superintendent of Education (in short D.S.E.), Sahebganj. Thereafter; in the year 1999, the petitioner was promoted to the Senior Selection Grade under order as contained in Memo No. 1016 dated 19.11.1999, issued by the D.S.E. cum-Sub-Divisional Education Officer, Pakur and even the petitioner was given annual increment and while the petitioner was serving as a Headmaster, the D.S.E., Pakur issued a Letter No.1579 dated 24.12.2002 (Annexure-3), whereby all the Drawing and Disbursing Officers of the Block under the Pakur District was directed to recover the excess amount, paid as salary, whose name does find mentioned in the Audit Report, but when the said order was not complied with, D.S.E., Pakur, again vide his Letter No. 277 dated 28.3.2003 (Annexure-4), directed all the concerned persons, including the Treasury Officers of the Pakur and Maheshpur to recover the amount, which has been paid in excess and these two letters have been sought to be quashed, on the grounds that the petitioner, who superannuated on 31.1.2004, never drew any amount in excess, rather he drew amount of salary on the Scale granted to the petitioner time to time, duly approved by the competent authorities and that order of . recovery has been passed, without giving any opportunity to the petitioner of hearing, which is against the principle of natural justice. The said orders have also been sought to be quashed on the ground that the petitioner was given promotion on higher scale upon the decision taken by the authorities on his own and not on the misrepresentation by the petitioner. 3. The case. The said orders have also been sought to be quashed on the ground that the petitioner was given promotion on higher scale upon the decision taken by the authorities on his own and not on the misrepresentation by the petitioner. 3. The case. of the respondents, as has been disclosed in the counter affidavit is that the Accountant General, Jharkhand, Ranchi in course of audit conducted in the Office of the respondent No. 4- District Superintendent of Education, Pakur, found that large number of Teachers had been given illegal promotion to the post of Headmaster and I.NBA Trained Teachers with retrospective effect, without approval of the Finance Department and, accordingly, he submitted report vide his Memo No. 166 dated 4.10.2002 (Annexure-A to the counter affidavit filed on behalf of the respondent No.4) wherein petitioner's name find mentioned and it has been stated that the petitioner has been promoted to the Senior Selection Grade, without recommendation of the District Education Establishment Committee and the Regional Deputy Director, Santhal Pargana, Dumka and had also noticed that the petitioner has been given Pay Scale of BA Trained Junior Selection Grade on 1.7.1988, but with retrospective effect from 1.4.1981, which is quite illegal and as such orders were issued, directing the Drawing and Disbursing Officers, to deposit the excess amount, which have been challenged before this High Court, though under that orders those amounts have been sought to be recovered, which has illegally been drawn by the petitioner for which he was not entitled to and, therefore the impugned orders need not to be interfered with, by this Court. 4. Learned counsel appearing for the petitioner submits that the petitioner having been joined the service as Assistant Teacher, in the year 1965, was given promotion to Junior Selection Grade/Senior Selection Grade and was also given BA Trained Scale, under the decision taken by the authorities and not on the misrepresentation by the petitioner and, therefore, the authorities, in view of the ratio laid down in a case of Sahib Ram vs. State of Haryana and Others, 1995 Supp. (1) S.C.C. 18, cannot recover the amount, said to have been drawn in excess, moreover in a situation, when the petitioner has retired on superannuation, during pendency of this writ application. 5. As against this, Mr. M.K. Laik, Sr. (1) S.C.C. 18, cannot recover the amount, said to have been drawn in excess, moreover in a situation, when the petitioner has retired on superannuation, during pendency of this writ application. 5. As against this, Mr. M.K. Laik, Sr. S.C.-I, appearing for the State submits that the petitioner on being given promotion illegally to B.A. Trained Junior/ Senior Selection Grade w.e.f. 1.4.1981 and 1.4.1984, drew the salary of those Scales, for which the petitioner was not entitled to and, therefore, the authority(s) has rightly directed for recovery of the said amount. In similar situation, when a person drew a salary even after his retirement, salary drawn by him, notwithstanding the fact that he worked for that period, was held to be illegal. The said proposition of law has been laid down in a case of Radha Kishun vs. Union of India and Others, 1997 Vol. 9 S.C.C. 239 and therefore, the authority(s) has rightly passed the order, regarding recovery of the excess amount, drawn by the petitioner, which he was not entitled to. 6. Having heard learned counsel appearing for the parties, it appears to be the admitted case that at one point of time, the petitioner was given promotion to BA Trained Junior/Senior Selection Grade and the petitioner even drew the salaries fixed under those scales, under the order of authorities, but the promotion to B.A. Trained Junior/Senior Selection Grade, according to the case of the respondents, has been given wrongly. However, this is not the case of the respondents that such promotions were given 'to the petitioner, on his misrepresentation and under that situation, the authorities are not entitled to recover the amount, said to have been drawn in excess. 7. In this regard, I may refer to a decision rendered in a case of Sahib Ram vs. State of Haryana and Others, 1995 Supp. (1) S.C.C. 18, wherein it has been held as follows:- (i) Admittedly the appellant does not possess the required qualifications. Under the circumstances the appellant, would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. (1) S.C.C. 18, wherein it has been held as follows:- (i) Admittedly the appellant does not possess the required qualifications. Under the circumstances the appellant, would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the 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. Under the circumstances the amount paid till date may not be recovered from the appellant. 8. The said proposition of law, also gets applied in the facts and circumstances of this case, as it is not the case of the respondents that the petitioner was given B.A. Trained Junior/Senior Selection Grade, on the misrepresentation of the petitioner, but by the authorities may be due to erroneously and under said situation, the authorities are not entitled to recover the amount, which has been drawn in excess by the petitioner. So far the case referred to on behalf of the State is concerned, the facts upon which proposition of law laid down are completely different and hence, that case is not applicable in this case. 9. Accordingly, impugned orders as contained in Memo No. 1579 dated 24.12.2002 and Memo No. 277 dated 28.3.2003, issued by the District Superintendent of Education-cum-Sub-Divisional Education Officer, Pakur, are hereby, quashed. 10. In the result, this writ application is allowed.