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2014 DIGILAW 1153 (JHR)

Rajkishore Prasad v. State of Jharkhand

2014-11-26

APARESH KUMAR SINGH

body2014
ORDER Heard learned counsel for the parties. 2. The petitioner is said to have retired on 31.12.1999 from the post of Research Assistant under Quality Control Sub-Division, Koderma under the Road Construction Department, Government of Jharkhand after attaining 58 years of age. After his retirement, the Chief Engineer, Central Design Organization, Road Construction Department, Patna vide office order dated 28.05.2002 cancelled the grant of 1st Time Bound Promotion earlier giving to him vide office order no. 864 dated 14.08.1991 and directed for recovery of the amount paid in excess. The petitioner thereafter had preferred writ petition being W. P. (S) No. 3368 of 2002 before this Court and also seeking to challenge the said order dated 28.05.2002 through an interlocutory application. The learned Single Judge vide order dated 03.07.2008 made prima facie observation that order dated 28.05.2002 is illegal and in violation of Rule 43(b) of the Bihar Pension Rules. However, upon consideration of reply of the respondent to the said interlocutory application, the learned Court gave liberty to the petitioner to move a representation without getting into the merits of the matter and directed the respondents to dispose of the said representation within stipulated period. 3. As per submissions of learned Senior counsel for the petitioner, no order was passed thereafter by the respondents. In the meantime, other person Ayodhya Prasad Singh, whose 1st Time Bound Promotion was also cancelled under the same impugned order dated 28.05.2002, Annexure-7, preferred a writ petition being W. P. (S) No. 3145 of 2003. The said writ petition was allowed and order dated 28.05.2002 was quashed by the learned Bench of this Court vide judgment dated 12.10.2009. The said person had also been granted the benefit of 1st Time Bound Promotion vide order dated 08.12.1993 and he had subsequently retired on 31.01.2001 as Research Assistant serving in Road Construction Department, Koderma. Learned Single Judge relied upon the the judgment rendered by the Full Bench of this court in the case of Smt. Normi Topno Vs. State of Jharkhand and Ors. reported in 2008(1) JCR 381 , as per which after retirement from service, no recovery of the alleged excess amount paid consequent upon promotion can be made from retirement benefit of such an employee. Rule 43(b) of the Bihar Pension Rules was also noticed. State of Jharkhand and Ors. reported in 2008(1) JCR 381 , as per which after retirement from service, no recovery of the alleged excess amount paid consequent upon promotion can be made from retirement benefit of such an employee. Rule 43(b) of the Bihar Pension Rules was also noticed. In the instant case also, it has been argued that the impugned order has been issued without following the procedure of Rule 43(b) of the Bihar Pension Rules. Learned Senior counsel for the petitioner submits that after filing of the writ petition, pensionary dues has been paid on 29.04.2011. However, it is submitted that the respondents have chosen to justify the cancellation of 1st Time Bound Promotion of the petitioner by the impugned order. 4. The petitioner, therefore, upon quashing of the order of cancellation of his 1st time bound promotion has made further prayer for release and fixation of his final pension in correct scale on his superannuation w.e.f. 31.12.1999 and to pay all its arrears along with interest. 5. Learned counsel for the respondent-State has filed an affidavit in response also defending the order impugned whereunder 1st time bound promotion of the petitioner was cancelled. It has also been stated at relevant paragraphs that pension etc. of the employee has been fixed and PPO and GPO have been issued to the Treasury for payment. Reliance has also been placed upon the order dated 24.01.2001 of the Finance Department, Bihar to justify the cancellation of the order of 1st time bound promotion. 6. Having considered the rival submissions of the parties and the materials on records as also the judgment rendered in the case of Ayodhya Prasad Singh (Supra) by learned Single Bench of this Court, this Court is of the view that the case of the present petitioner stands on equal footing to that of Ayodhya Prasad Singh. The present petitioner had also retired on 31.12.1999 and had been granted the benefit of 1st time bound promotion vide office order dated 14.08.1991 itself, which was cancelled vide impugned order dated 28.05.2002, Annexure-2, issued by the Chief Engineer, Bihar, Patna. In the instant case also it appears that no proceedings under Rule 43(b) of the Bihar Pension Rules were followed nor any show cause was issued before cancellation of the said 1st time bound promotion granted to the petitioner earlier. In the instant case also it appears that no proceedings under Rule 43(b) of the Bihar Pension Rules were followed nor any show cause was issued before cancellation of the said 1st time bound promotion granted to the petitioner earlier. The relevant extracts of the judgment passed in the case of Ayodhya Prasad Singh (Supra) is being quoted herein-under:- “Nowhere it has been stated in the counter affidavit that any enquiry was made as provided under Rule 43(b) of the Bihar/Jharkhand Service Code nor it has been stated that prior to issue of such punitive nature of order any notice to show cause or a chance of being heard was given to the petitioner. The Full Bench of this Court in the case of “Smt. Normi Topno”(Supra) has held that after retirement there is no relation ship of employ errand employee and as such no recovery can be made from the retiral benefits without following procedure of law as provided under Rule43(b) of the Bihar Pension Rules. Without fulfilling the conditions under Rule 43(b) and without cancelling the order of promotion after enquiry by the competent authority, pension and other retrial benefits can not be recovered that too without giving opportunity to the retired employee and without giving any finding with reference to the misrepresentation or misconduct on the part of the concerned employee. Therefore, in my view, the present case is fully covered by the aforesaid decision of the Full Bench of this Court. Accordingly, this writ petition is allowed. The order dated 28/05/2002, contained in Annexure-1 to the writ petition, passed by the Chief Engineer, Public Construction Department, Road Construction, Patna is here by quashed.” 7. It further appears that in the earlier writ petition, which was preferred by the petitioner, there was no determination on the merits of the matter though the challenge was made to the same impugned order dated 28.05.2002. Therefore, the petitioner cannot be non suited in this writ petition for making a challenge to the said order dated 28.05.2002 which adversely affects his post retirement benefits. Accordingly, the order dated 28.05.2002, so far it relates to the petitioner is concerned, is also quashed. Therefore, the petitioner cannot be non suited in this writ petition for making a challenge to the said order dated 28.05.2002 which adversely affects his post retirement benefits. Accordingly, the order dated 28.05.2002, so far it relates to the petitioner is concerned, is also quashed. The respondents shall have to fix and finalize the pension of the petitioner and other post retirement dues consequent thereupon in correct scale and pay arrears arising therefrom along with interest @ 6 % per annum within a period of 10 weeks from the date of receipt of a copy of this order. 8. The writ petition is allowed in the manner and to the extent indicated hereinabove.