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2014 DIGILAW 68 (MAN)

T. Thangsuanlian v. State of Manipur and Anr.

2014-05-29

L.K.MOHAPATRA

body2014
JUDGMENT (ORAL) Heard Mr.Th. Khagemba, learned counsel appearing on behalf of the petitioner as well as Mr.K. Jagat Singh, learned State counsel appearing for the respondents. 2. The petitioner in this writ application challenges the order in Annexure-A/9 dated 31.10.2013 in which not only he had been reverted to the post of Draughtsman Grade-II but also a direction has been issued for recovery of the excess salary drawn by him while serving in the post of Draughtsman Grade-I. 3. The petitioner was initially appointed as Draughtsman Grade-II by order of the Chief Engineer(Power) on 30.07.1990. After serving in the said post for a considerable length of time, he was recommended by the DPC for promotion to the post of Draughtsman Grade-I, and accordingly an order was issued on 29.11.2005 by the Chief Engineer(Power) appointing the petitioner on promotion to the post of Draughtsman Grade-I. The said promotion was challenged by one, Smt. V.S. Lungmila(ST) in a writ petition bearing W.P.(C) No.574 of 2006. The petitioner was not made a party in the said writ petition. However, the writ application was disposed of on 23.03.2009 and the recommendation of the DPC as well as the consequential promotion of the petitioner to the post of Draughtsman Grade-I were set aside. Even after disposal of the writ application, the Department allowed the petitioner to continue in the post of Draughtsman Grade-I and the said Smt.V.S. Lungmila filed another writ petition before this Court by W.P.(C) No.183 of 2012 for implementation of the judgment and order of this Court passed in W.P.(C) No.574 of 2006. In the second writ application also the petitioner was not made a party. The said writ petition W.P.(C) No.183 of 2012 was disposed of on 12.09.2012 directing the State respondents to implement the earlier judgment as expeditiously as possible preferably by 30.11.2012. 3.1. In compliance of the said judgment and order, the State respondents conducted a review DPC on 21.02.2013 and on the recommendation of the said review DPC, the said Smt. V.S. Lungmila was promoted to the post of Draughtsman Grade-I along with other incumbents. Subsequently, the petitioner was reverted on 31.10.2013 to the post of Draughtsman Grade-II. 3.1. In compliance of the said judgment and order, the State respondents conducted a review DPC on 21.02.2013 and on the recommendation of the said review DPC, the said Smt. V.S. Lungmila was promoted to the post of Draughtsman Grade-I along with other incumbents. Subsequently, the petitioner was reverted on 31.10.2013 to the post of Draughtsman Grade-II. In the reversion order in Annexure-A/9, a further direction has been issued to the Executive Engineer, IED-II, Electricity Department, Manipur to take necessary action for calculation of excess pay drawn by the petitioner from 29.11.2005 in the post of Draughtsman Grade-I and recover the same. 4. Mr.Th. Khagemba, learned counsel appearing for the petitioner submits that on the basis of the recommendation of the DPC, the petitioner had been given promotion to the post of Draughtsman Grade-I and had joined to the post on 29.11.2005. Subsequently, in compliance of the court’s orders passed in the above two writ petitions he was reverted to the post of Draughtsman Grade-II under Annexure-A/9 dated 31st October, 2013. In the above two writ petitions the petitioner was not made a party to contest. He had neither any role to play for his promotion nor reversion and accordingly no direction need be issued for recovery of excess salary drawn by him while working as Draughtsman Grade-I. 5. Mr.K. Jagat Singh, learned State counsel submits that since the promotion given to the post of Draughtsman Grade-I was on the basis of the recommendation of the DPC in the year 2005 and the recommendation was set aside by the Court, the petitioner was not entitled to hold the post and accordingly order of reversion was passed and recovery of excess salary drawn was directed. 6. The sole question for consideration in this writ application is as to whether any direction for recovery can be issued when the petitioner was given promotion on the basis of the recommendation of the DPC and the order of reversion was passed in compliance of the court’s order. In this connection, reference may be made to a decision of the Apex Court in the case of Syed Abdul Qadir & Ors. –vrs – State of Bihar & Ors. reported in (2009) 3 SCC 475 . In this connection, reference may be made to a decision of the Apex Court in the case of Syed Abdul Qadir & Ors. –vrs – State of Bihar & Ors. reported in (2009) 3 SCC 475 . In the said case, the Supreme Court held that if any amount was paid to the employee in excess mistakenly on the part of the employer, the excess payment is not recoverable from the person concerned. It was further held that if the excess payment was paid by applying wrong calculation, such excess amount cannot be recovered specially when the employee has not contributed any role in fixation of higher pay. If those principles are applied in this case it would appear that the petitioner was promoted to the post of Draughtsman Grade-I on the basis of the recommendation of the DPC and he was reverted back to the post of Draughtsman Grade-II in compliance with the court’s orders passed in the above two writ petitions. He had no contribution either in getting the promotion to the post of Draughtsman Grade-I nor he had any contribution for his reversion from the post of Draughtsman Grade-I to Draughtsman Grade-II. I therefore, applying the principles laid down by the Apex Court in the above case allow the writ application in part, the direction contained in Annexure-A/9 for recovery of the excess salary drawn by the petitioner while working in the post of Draughtsman Grade-I from 29.11.2005 till 31.10.2013 is set aside, and it is directed that no recovery of the excess payment given to the petitioner towards salary while working as Draughtsman Grade-I for the above period shall be made by the State respondents. However, the order of reversion in Annexure-A/9 is not interfered with. The writ application is disposed of accordingly.