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2011 DIGILAW 818 (JHR)

Dwarika Nath Pandit v. State of Jharkhand

2011-09-01

R.R.PRASAD

body2011
JUDGMENT: Heard the parties. 2. Learned counsel appearing for the petitioner submits that the petitioner was initially appointed on Class-IV post in the Department of Forest in the year 1964. Subsequently, the petitioner was promoted to the post of Assistant Clerk in the year 1982. Thereafter, in the year 1995, 1st time bound promotion was given to the petitioner w.e.f. 12.7.1992 but that was provisional. When the matter was sent before the Higher Authority i.e. respondent no. 3 for Ist its confirmation, order dated 30.8.1995 granting time bound promotion to the petitioner was not only cancelled by the respondent no. 3 vide its Office Order No. 83 dated 14.11.2005 (Annexure-4) but it was also recorded that monetary benefit given to the petitioner on account of 1st time bound promotion be adjusted from his retiral benefit. 3. Being aggrieved with that order, the petitioner has moved to this Court challenging the order dated 14.11.2005 (Annexure-4) to be bad. 4. Learned counsel for the petitioner submits that so far as the matter relating to cancellation of 1st time bound promotion is concerned, the petitioner would not be pressing this issue but he be given liberty to raise the issue relating to grant of 2nd time bound promotion, as the petitioner under the relevant rule was entitled to have 2nd time bound promotion on completion of 25 years of service and since he had already completed 25 years before his retirement, he is entitled to get 2nd time bound promotion. 5. Learned counsel further submits that so far as the order relating to recovery of the amount said to have been drawn by the petitioner in excess is concerned, that is quite illegal in view of several decisions rendered in this regard either by this Court or by the Hon'ble Supreme Court, as the petitioner had been given 1st time bound promotion without there being any misrepresentation on his part. 6. Learned counsel in this regard referred to the cases of Saheb Ram Vs. State of Haryana {(1995) 1 S.C.C. 18} and Bihar State Electricity Board Vs. Bijay Bahadur {(2000) 1 S.C.C. 99}. 7. I do find substance in the submission advanced on behalf of the petitioner so far as it relates to adjustment of the excess amount drawn from the retiral benefits. 8. State of Haryana {(1995) 1 S.C.C. 18} and Bihar State Electricity Board Vs. Bijay Bahadur {(2000) 1 S.C.C. 99}. 7. I do find substance in the submission advanced on behalf of the petitioner so far as it relates to adjustment of the excess amount drawn from the retiral benefits. 8. The petitioner though was not entitled to have 1st time bound promotion, he had been given 1st time bound promotion but without there being any misrepresentation on his part. Hence the question does arise as to whether it is within the competence of the authority to realise the excess amount drawn from the pensionary benefit? Similar issue fell for consideration before the Hon'ble Supreme Court in the case of Bihar State Electricity Board (supra), wherein it was held as under:- “We do record our concurrence with the observation of this Court in Sahib Ram Case and come to conclusion that since payments have been made without any representation or misrepresentation, the appellant-Board could not possibly be granted any liberty to detect or recover the excess amount paid by way of increment at the earlier point of time. The act or acts on the part of the appellant-Board cannot under any circumstances be said to be inconsonance with equity good conscience of justice.” 9. Under the circumstances, part of the order dated 14.11.2005 (Annexure-4), under which the excess amount drawn was sought to be adjusted from the retiral dues of the petitioner, is hereby quashed. 10. So far as the matter relating to cancellation of 1st time bound promotion is concerned, I am not giving any opinion in view of the submission advanced on behalf of the petitioner. 11. However, the petitioner would be at liberty to file a representation relating to grant of 2nd time bound promotion on the ground of completion of 25 years of service before the Divisional Forest Officer, Research and Evaluation Division, Van Bhawan Doka, Ranchi (respondent no. 3) within a period of two weeks from today so that the respondent no. 3 may take decision over it within a period of eight weeks thereafter. 12. With this observation and direction, this writ application stands disposed of.