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2014 DIGILAW 338 (PAT)

Binay Shankar Shukla v. State Of Bihar

2014-03-11

AJAY KUMAR TRIPATHI

body2014
Oral Order Petitioner has superannuated from the post of Lower Division Clerk from Civil Court, Bhagalpur. He was appointed on the said post and thereafter joined on 2.3.1979. Since the petitioner did not get any avenues of promotion, he demanded and claimed benefit of stagnation in terms of the Assured Career Progression Scheme 2003. Petitioner was given benefit of 1st ACP with effect from 9.8.1999 and the 2nd ACP with effect from 2.3.2003. He drew advantage thereof monetarily but when the matter was placed before District Accounts Officer, a serious objection was raised therein that since the petitioner had not passed the requisite departmental examination, in terms of Rule 4 (5) of the ACP Rules 2003, he was not entitled for such benefit as passing of departmental examination was a must. Petitioner has passed the departmental examination only on 29.6.2003. Even an order of recovery as per Annexure- 5 has been issued, which has led to filing of the present writ application. 2. Besides the recovery and re-fixation, which has been ordered in terms of Annexure- 5, for which petitioner is aggrieved and is seeking quashing, petitioner is also looking for payment of arrears of salary of the 6th Pay Revision Committee recommendation which has come into effect from 1.4.2007 as well as the benefit of Modified ACP Rules 2010, which is loosely termed as 3rd ACP. 3. It is the stand of the petitioner that his right to beget benefit of stagnation flowing from the ACP Rules cannot be contested by the respondents looking at the number of years petitioner had put in on the post without any substantive orders of promotion. He was granted 1st and 2nd ACP and the corresponding pay scale flowing from the said benefits. There has been no objection from any of the authorities till Annexure- 5 came to be passed in the year 2011 on an objection raised by the District Accounts Officer. 4. Learned counsel for the petitioner was confronted with Rule 4 (5) of ACP 2003 provision where it is clearly indicated that every employee has to fulfill the same requirements, which are laid down for substantive promotions even for benefit of ACP. He does not quarrel with the Rules but his contention is that there was no occasion and requirement of passing of departmental examination. He does not quarrel with the Rules but his contention is that there was no occasion and requirement of passing of departmental examination. He relies on Rule 21 (1) of Bihar Civil Court Staff (Class III and Class IV) Rules, 1998 in support of such a proposition and contention. The Rule is quoted herein below :- “21. Promotion – (1) A candidate shall not be promoted to the Junior Selection Grade or to a Super-time scale in service unless he qualifies in the examination as prescribed by the High Court.” 5. The interpretation which is sought to be given by the petitioner is that the Civil Court Rules of 1998 talked about a concept which has come to an end as far back as on 1.1.1996. The requirement of passing the departmental examination, therefore, is not there. The same again came into play when an amendment was brought about in the year 2009. If there was a vacuum with regard to such requirements, the benefit must accrue to the petitioner and the respondents cannot insist upon passing of departmental examination and on non-passing, having consequences for him. 6. In addition to contention of the petitioner about non- requirement of passing an examination, he also submits that since no examination was conducted by the respondents, the petitioner cannot be held responsible for not passing it. He has cleared the examination on the first given opportunity. 7. While reading 21(1) no doubt the words “Junior Selection Grade” or “Supertime Scale” has been talked about, but the requirement of passing the qualifying examination, as prescribed by the High Court, is a requirement, which is evident from reading of the said provision. 8. The concept of Junior Selection Grade or Supertime Scale was a concept introduced by the 4th Pay Revision Committee. This was a provision for removal of stagnation and naturally when recommendation of the 5th Pay Revision Committee came into play, the earlier concept had to be given a go-bye. But from a reading of Rule, the basic essence that there was a requirement of passing a departmental examination even for getting the benefit of stagnation as an underlying concept cannot be overlooked. The 2009 amended Rules again talks in terms of requirement of passing of departmental examination. But from a reading of Rule, the basic essence that there was a requirement of passing a departmental examination even for getting the benefit of stagnation as an underlying concept cannot be overlooked. The 2009 amended Rules again talks in terms of requirement of passing of departmental examination. In addition to that, counsel representing the State has drawn the attention of the Court to some other provisions of the Civil Court Rules, which are Rule 14 (3), Rule 21 (1), already noticed above, and Rule 21 (5) and 21 (6). The reading of these Rules, put together, does drive the point that an employee before getting benefit in service of a higher order, must also prove his mettle by achieving higher standards. He cannot be expected to remain at the level, which formed the basis for his initial recruitment and appointment. A higher benefit also entails a higher level of competence, efficiency and delivery, which is integral part of good governance as well as administration. 9. In totality, therefore, keeping the above provisions and Rules in mind, there is no escape for the petitioner from his obligation and duty to pass a departmental examination, if he is looking for a higher pay scale even under the stagnation scheme. If that is so then obviously the benefit of 1st and 2nd ACP cannot accrue to the petitioner contrary to the requirements of the Rules and the obligation cast upon the petitioner. It is in this background that the respondent authorities have given notional benefit of 1st and 2nd ACP to the petitioner till he passed the departmental examination. The monetary benefit had accrued to the petitioner with effect from 29.6.2003, but the past benefit, which the petitioner has drawn, was contrary to the requirements of the Rules and, therefore, there was occasion to either re-fix as well as demand recovery of the benefit drawn by the petitioner. 10. Court has reason to say so further and is in agreement with the stand taken by the counsel for the State that the law being what it is now as enunciated by the Hon’ble Apex Court in the case of Chandi Prasad Uniyal and others V. State of Uttarakhand and others, reported in 2012(8) SCC 417 recovery can be effected. The Apex Court has concluded in paragraph 14 the proposition, which is quoted herein below :- “14. The Apex Court has concluded in paragraph 14 the proposition, which is quoted herein below :- “14. We are concerned with the excess payment of public money which is often described as “taxpayers’ money” which belongs neither to the officers who have effected overpayment nor to the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in in such situations. The question to be asked is whether excess money has been paid or not, may be due to a bona fide mistake. Possibly, effecting excess payment of public money by the government officers may be due to various reasons like negligence, carelessness, collusion, favoritism, etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.” (emphasis added) 11. In view of the above proposition, there is no reason to interfere with Annexure- 5 or the decision to recover the amount illegally drawn by the petitioner prior to 29.6.2003. 12. However, if the petitioner has not been paid the difference of salary after the 6th pay revision recommendation, with effect from 1.4.2007 as notified by the State of Bihar, there is an obligation upon respondent no.4, the District and Sessions Judge, Bhagalpur to take steps to pay the difference of pay scale, if not paid to the petitioner so far. It would be paid from 1.4.2007 till the date of his superannuation. 13. The entitlement of the petitioner under Modified ACP 2010 will also be examined taking into consideration the length of service and the requirements needed under the 2010 Rules. 14. The two exercises with regard to arrears as well as MACP must be carried out within a period of three months from the date of production/communication of a copy of this order. 14. The two exercises with regard to arrears as well as MACP must be carried out within a period of three months from the date of production/communication of a copy of this order. The writ application is allowed only to the extent of payment of difference of salary as well as examination of entitlement of the petitioner for 3rd ACP. Annexure 5, however, is not interfered with.