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2013 DIGILAW 473 (PAT)

Chandra Mohan Jha v. State Of Bihar

2013-04-08

NAVIN SINHA, SHIVAJI PANDEY

body2013
JUDGMENT (Per: HONOURABLE MR. JUSTICE SHIVAJI PANDEY) This appeal arises from the order dated 11.3.2011 passed in C.W.J.C. No.17180 of 2010 affirming the decision taken of the Director, Mathili Academy (hereinafter referred to as ‘the Academy’) to cancel the promotion of the appellant and to recover the excess salary paid to the appellant. 2. The appellant had challenged the order dated 6.8.2010 of the Director, Higher Education, Government of Bihar, declaring the promotion of the appellant to the post of Personal Assistant illegal, affirming his earlier view dated 5.4.2010, also under challenge directing recovery of excess amount paid to the appellant contrary to the Government order dated 8.12.2001. 3. In this appeal the primary question raised by the appellant is that he was appointed to the post of Routine Clerk after following due process of law by advertisement and competitive selection. The payment that has been made to him cannot be deducted on the ground that sanctioned vacancy did not exist as it was a unilateral act attributable to the Academy for which he cannot be allowed to suffer. It is additionally urged that his appointment should be treated valid from the initial date and not from the date when the Government has adjusted him on the post of the Routine Clerk on promotion of one Mr. Raj Kumar Jha to the post of Assistant with effect from 16.2.2001. There are no allegations of the appellant having obtained appointment through back door, illegally or playing fraud. 4. The Academy was established in 1976 by the State of Bihar for the development of Maithili language and its culture. By letter dated 8.1.1977 altogether 21 posts commencing from Chairman to the Night Guard were created attached with pay-scale. Amongst them, one post of Routine Clerk was sanctioned in the pay-scale of Rs. 220-350. Two posts of Typist in the pay-scale of Rs.244-356 and two posts of Stenographer in the pay-scale of Rs. 296-460 were also created. Raj Kumar Jha was appointed Routine Clerk on 17.8.1976 in temporary capacity. His service was extended from time to time and ultimately he was absorbed in service vide Office Order No.298 dated 26.7.1978. He was promoted to the post of the Assistant in the accounts Section on 14.5.1981. The post of Routine Clerk was then advertised on 26.8.1985. Raj Kumar Jha was appointed Routine Clerk on 17.8.1976 in temporary capacity. His service was extended from time to time and ultimately he was absorbed in service vide Office Order No.298 dated 26.7.1978. He was promoted to the post of the Assistant in the accounts Section on 14.5.1981. The post of Routine Clerk was then advertised on 26.8.1985. The appellant applied for the post of the Routine Clerk and after following due process he was appointed on 20.1.1986. He was subsequently granted time bound promotion on 22.6.1998 and later on he was promoted to the post of Personal Assistant vide order dated 24.9.2000 in his own pay-scale of Routine Clerk. The Government on verification of the posts and fixation of salary of the employees of the Academy found the appellant was appointed against the sanctioned single post of Routine Clerk already occupied by Raj Kumar Jha. The Government did not fix the pay of the appellant as he was treated to have been appointed against non-existent post. 5. The appellant filed a representation against the provisional verification and made a prayer for rectification as contending he was appointed against sanctioned post of Routine Clerk which had fallen vacant in the year 1981 when Raj Kumar Jha was appointed as Assistant in Accounts Section. The Deputy Director, Higher Education, Government of Bihar vide his letter no. 1596 dated 10th September, 1999 made a query from the Director-cum-Secretary, Maithili Academy as to the number of sanctioned posts and the persons working against the same. The Chairman of the Maithili Academy vide letter no.250 dated 22.8.2000 informed the State Minister, Higher Education, that the Academy had created the post of Assistant on 9.5.1981 and later on vide letter no. 200/2000 dated 10th July, 2000 Raj Kumar Jha was adjusted to the said post but his pay was wrongly verified to the pay-scale of Routine Clerk. In connection of appellant it was mentioned that he was appointed against the sanctioned post of Routine Clerk in pursuance of the advertisement and after due process of law but his pay was not verified by the State Government though there had been regular deduction of G.P.F., Group Insurance from his pay. 6. In connection of appellant it was mentioned that he was appointed against the sanctioned post of Routine Clerk in pursuance of the advertisement and after due process of law but his pay was not verified by the State Government though there had been regular deduction of G.P.F., Group Insurance from his pay. 6. The appellant filed representation dated 26.12.2000 to the Director-cum-Secretary, Maithili Academy drawing attention that he was appointed as a Routine Clerk on 20.1.1986 after following the due process of law and on completion of 10 years he was also granted benefit of time bound promotion, prayed for fixation of his pay in his parent post of Routine Clerk. The said letter of the appellant was transmitted for due consideration to the Secretary, Higher Education, Government of Bihar and requested for sympathetic consideration. The Joint Secretary-cum-Director vide letter no.2205 dated 8.12.2001 sent the fixation and verification of the pay of the employees of the Academy, Raj Kumar Jha was shown, appointed to the post of Assistant with effect from 16.2.2001 and from the said date the appellant was shown to have been appointed on the post of Routine Clerk in the pay scale of Rs.975-1540. 7. The appellant against the adjustment of his service and fixation of his pay scale filed a representation to the Director, Maithili Academy and made a prayer for correction of his date of appointment including his pay-scale. 8. The appellant aggrieved by the action of the Government and the Academy filed C.W.J.C. No. 2566 of 2002 challenging the wrong fixation of his date of appointment and his pay but on the assurance of the Academy for redressal of his grievance vide letter no. 137 dated 19.8.2006 and letter no. 179 dated 4.10.2006 withdrew the aforesaid writ petition. The Chairman-cum- Director, Maithili Academy vide letter no.12 dated 9.1.2007 restored his position and fixed the pay scale of the appellant on the post of Routine Clerk. 9. The Director, Higher Education, Government of Bihar vide letter no. 275 dated 22.3.2003 asked the Director-cum-Secretary, Maithili Academy to act as per provision of Bihar Service Code and refused to accept the letter no.39/02-03 dated 5.6.2002 and attached responsibility for any payment made dehors the Bihar Service Code. 9. The Director, Higher Education, Government of Bihar vide letter no. 275 dated 22.3.2003 asked the Director-cum-Secretary, Maithili Academy to act as per provision of Bihar Service Code and refused to accept the letter no.39/02-03 dated 5.6.2002 and attached responsibility for any payment made dehors the Bihar Service Code. The Director, Higher Education, Government of Bihar vide its letter dated 5.4.2010 addressed to the Chairman-cum-Director, Maithili Academy reminded disapproval of letter no.11/10 dated 19.2.2010 whereby six employees of the Academy were promoted/adjusted against the unsanctioned post by the then Chairman-cum-Director, Maithili Academy and asked employees be relegated to the original post and excess payment made if any may be recovered from them. 10. In pursuance of the said letter Academy vide its letter no.27/10 dated 13.4.2010 found promotion and fixation of pay to be wrong asked to issue show-cause to employees, asking them to file explanation within seven days. Against that letter petitioner-appellant filed a representation to the Chairman-cum-Director, Maithili Academy whereby he brought the material fact for his consideration. The Academy vide letter no.45/10 dated 6.5.2010 found the promotion and fixation of pay wrong and thereby reverted him to original post including recovery of excess amount. The appellant filed C.W.J.C. No. 9782 of 2010 against the order dated 5.4.2010 and letter no.45 dated 6.5.2010 thereby direction for cancellation and recovery of excess amount paid to the appellant, and this Court vide order dated 19.6.2010 quashed the order dated 5.4.2010 and 6.5.2010, and remitted back the matter to the Director, Higher Education for passing fresh order giving due consideration on the representation, if any, filed by the appellant. 11. The Director, Higher Education considered the representation of the appellant and passed a reasoned order vide letter no.2435 dated 6.8.2010, which was under challenge before the writ court, where the Director found that the decision of the Academy in its meeting dated 11.3.2000 promoting six employees which was approved by the Executive Committee dated 27.3.2000 granting promotion to six employees including the appellant from the post of Routine Clerk to the post of Personal Assistant was not in accordance with law. It was also pointed out, Government had rejected the promotion and pay fixation of employees of Academy as the Director, Higher Education found the promotion to be illegal and accordingly any benefit derived was also held to be illegal. It was also pointed out, Government had rejected the promotion and pay fixation of employees of Academy as the Director, Higher Education found the promotion to be illegal and accordingly any benefit derived was also held to be illegal. It was further held that before creating additional financial burden the Academy was required to take approval from the Government, in absence of the same any action of the Academy was not binding on the Government. Accordingly the promotion as well as pay revision attached to post was declared illegal and directed for relegation of the appellant and others to the original post and recovery of excess amount paid to them. 12. The contention of learned counsel for the appellant is that the appellant was appointed on 20.1.1986 against the post advertised in the newspaper on 26.8.1985 following due process of law. The post of routine clerk, on the date of his appointment, was vacant as by the time Raj Kumar Jha was appointed/shifted in the accounts section as an Assistant. The appellant was granted time bound promotion as well as he was promoted to the post of Stenographer in a proceeding dated 11.3.2000 of the Academy and later on the post of Stenographer was redesignated as Personal Assistant. The action of the Government to treat the appellant to have been appointed on the post of Routine Clerk on 16.2.2001 is illegal and not sustainable in the law. It has further been argued that the Academy is an autonomous body, it is not required to take any approval from the Government in the matter of appointment to the post of Routine Clerk. So much so there was no occasion for the Government to interfere with the promotion of the appellant as he was promoted by the Academy in its meeting as aforesaid on proper recommendation and the same was affirmed in second meeting. He has further submitted that the In-charge Director of the Academy rightly enhanced the basic pay of the appellant whereby the pay of the appellant was increased from Rs.1125-1740. There was no occasion for the Government for giving a direction to recover the excess amount paid to him. In consequence thereof the order passed by the Academy vide memo no. He has further submitted that the In-charge Director of the Academy rightly enhanced the basic pay of the appellant whereby the pay of the appellant was increased from Rs.1125-1740. There was no occasion for the Government for giving a direction to recover the excess amount paid to him. In consequence thereof the order passed by the Academy vide memo no. 45/10 dated 6.5.2010 issued by the Chairman-cum-Director directing to recover the excess payment paid to him in 20 installments is completely illegal and not sustainable in law in view of the fact that the appellant while getting appointment/promotion has not suppressed, misrepresented or played any fraud in obtaining the aforesaid benefit. He has further argued that he should be treated to have been appointed from 20.1.1986 instead of fixing his date of appointment on 16.2.2001 placed reliance in the judgment reported in Braj Kishore Singh and others Vs. State of Bihar and others, reported in 1997(1) P.L.J.R. 509 . 13. In contra, counsel for the State and Academy have supported the action of Government and Academy submitted, there was no any vacant post of Routine Clerk on 26.8.1985 and as such there could not have been any appointment to a post which was occupied by Raj Kumar Jha who was wrongly shifted as Assistant in the Accounts Section as there was no such post in the Accounts Section, so much so that there was no approval from the Government for adjusting Raj Kumar Jha to the said post which created financial burden and as such he was treated to be holding post of Routine Clerk cannot be faulted till 16.2.2001. The Government or the Academy could have terminated the services of the appellant but instead of the same, the services of the appellant has been treated to have been appointed on 16.2.2001 as Routine Clerk. It has further been submitted that as the Government has been giving hundred percent grants there cannot be any appointment or creating the additional burden on the Government without having prior approval of the same. Any action of the Academy appointing or promoting the person, creating financial burden without having a proper approval is an act of illegality and not sustainable in law. 14. Learned counsel for the Academy has further submitted that Division Bench of this court vide order dated 29.4.1991 in C.W.J.C. No.6757 of 1989 and analogous cases (Dr. Akhil Chandra Mishra etc. Any action of the Academy appointing or promoting the person, creating financial burden without having a proper approval is an act of illegality and not sustainable in law. 14. Learned counsel for the Academy has further submitted that Division Bench of this court vide order dated 29.4.1991 in C.W.J.C. No.6757 of 1989 and analogous cases (Dr. Akhil Chandra Mishra etc. Vs. The State of Bihar and Ors.) has decided that last word in the matter of appointments rests with the State Government and without the approval of the State Government it cannot be said to have acquired any finality. It has further been argued that the judgment relied on by the appellant in the case of Braj Kishore Singh (supra) is not applicable to the facts of this case as it was decided in different consideration where the appointment was made against the post sanctioned by the State Government under the staffing pattern and in the present case the issue that has been raised as to whether the appellant could have been treated to have been appointed on the post of Routine Clerk when Raj Kumar Jha was holding the said post as his transfer/appointment in the Accounts Department as an Assistant was done without any approval of the State Government. It has further been argued that the Acting Chairman-cum-Director was not justified in granting him the pay fixation in the year 2007 from Rs.1125 to Rs.1770 treating him as have been appointed in the year 1986 without there being any approval for the same from the Government rather contrary to the earlier sanction granted by the State Government. 15. Having considered the rival contention of learned counsel for the parties, this Court will have to decide two issues, namely, whether the Academy has rightly advertised the post of Routine Clerk in the daily newspaper on 26.8.1985 considering the post was not held by Raj Kumar Jha as he was shifted as an assistant in the accounts section. In consequence thereof the appointment of the appellant to the post of Routine Clerk was in accordance with law against the sanctioned vacant post. In consequence thereof the appointment of the appellant to the post of Routine Clerk was in accordance with law against the sanctioned vacant post. Further issue has to be decided whether the State Government as well as the Academy has rightly treated the appellant to have been appointed as a Routine Clerk with effect from 16.2.2001 and also the issue of enhancement of the salary in the year 2007 without there being any approval was an act of illegality and the action of the Government as well as Academy directing to recover excess money from the appellant in twenty installments be legal, proper and fair. 16. Let us examine the fact about the appointment of the appellant in the year 1986 being a legal appointment or an illegal appointment and for that following facts will be relevant for consideration. 17. The post of Routine Clerk was in occupation of Raj Kumar Jha since 1976 and so long he would be deemed to have been holding the said post, there could not be any advertisement and appointment of appellant. It is not in dispute that total grants comes from the State Government and this Court in the case of Dr. Akhil Chandra Mishra (supra) has held that the last word in the matter of appointments rests with the State Government and without the approval of the State Government it cannot be said to have acquired any finality. As it is a fact that Raj Kumar Jha on the date of advertisement was not occupying the post of Routine Clerk as he was shifted to Accounts Section but the same was rejected by the Government. He was treated by the State Government to have been in occupation of the said post till 16.2.2001 and as such only from that date the present appellant could be treated to have been appointed to the said post. So long Raj Kumar Jha did not vacate the said post the present appellant or any person cannot be appointed to the post occupied by him. The decision of the Government vide letter dated 8.12.2001 with respect to Raj Kumar Jha holding the post of Routine Clerk till 15.2.2001 remained intact which remained unchallenged and as such the present appellant cannot be treated to have been appointed to the said post. The decision of the Government vide letter dated 8.12.2001 with respect to Raj Kumar Jha holding the post of Routine Clerk till 15.2.2001 remained intact which remained unchallenged and as such the present appellant cannot be treated to have been appointed to the said post. The Government and academy rightly treated the present appellant to have been appointed on 16.2.2001 on that date Raj Kumar Jha was treated to have been adjusted as assistant. It is also an admitted fact that the Government earlier to the letter dated 18.8.2001 had not approved the decision of the Academy and any action taken by the Academy without there being any approval cannot be a binding on the State Government. But at the same time the Academy which had advertised the post of the Routine Clerk treating the same as a vacant as appointed Raj Kumar Jha to the post of Assistant in the Accounts Section cannot be allowed to escape the responsibility for having advertised the post aforesaid and to appointed appellant to the said post. 18. In this view of the matter, this Court is of the view that the Government is not bound by the action of the Academy but the Academy cannot escape from the responsibility of its own creation and the burden created on its own head. On consideration of the aforesaid material on record, this Court is of the view that the Government has rightly treated the appellant to have been appointed on 16.2.2001 to the post of Routine Clerk. According the salary of the appellant could not have been enhanced in the year 2007 treating him to have been appointed in the year 1986. If the appointment of the appellant is shifted from 20.8.1986 to 16.2.2001 automatically every thing goes downward and as such granting of enhanced salary in the year 2007 without approval of the Government also falls on the ground. 19. On conspectus of the totality of the fact and circumstances as the appellant had acted as per the advertisement published by the Academy and in pursuance thereof the appellant was appointed to the post of Routine Clerk wrongly treating the same to be vacant but for that the appellant cannot be held responsible. It was the responsibility of the Academy to have properly verified the vacancy position and only then was required to have advertised the same. It was the responsibility of the Academy to have properly verified the vacancy position and only then was required to have advertised the same. The appellant cannot be allowed to suffer for the act committed by the Academy. In this view of the matter, the Government is justified in not approving and directing to recover the amount but at the same time Academy is completely unjustified in issuing direction to recover the excess amount paid to him in twenty installments. The order passed by the Academy for recovering the excess amount paid during the period from 20.2.1986 to 15.2.2000 is declared illegal and unsustainable in law but as this Court has held that the enhancement of the pay from 2007 by the then Director is not sustainable and the same is liable to be set aside. 20. In the result the date of appointment shall be reckoned as approved by the Government but any payment made to the appellant in pursuance of enhancement to the pay in the year 2007 is liable to be recovered from the appellant in twenty equal installment but at the same time any payment made to him by the Academy during the period from 1986 to 2001 is not permitted to be recorded from appellant but the Government would be justified in making appropriate adjustment by lump-sum deduction from the next annual grant to the Academy. 21. With the aforesaid observation this appeal is partly allowed.