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2014 DIGILAW 687 (JHR)

S. Naseemuddin v. State of Jharkhand

2014-07-03

APARESH KUMAR SINGH

body2014
Judgment Heard learned counsel for the petitioner and the State. The petitioner has come forward with two fold grievances ; (i) that his post retirement benefits should be revised as implemented under 6th Pay revision on 1st January, 2006 and be paid along with its arrear since his retirement from the post of Section Officer on 31st July, 2007 from the Forest and Environment Department, Government of Jharkhand and (ii) he has challenged the show cause notice dated 23.2.2010, Annexure 8 under which he was asked to reply as to why he be not reverted to the post of Assistant having not cleared the departmental examination, which was a prerequisite for getting time bound promotion, which had been granted to him on 11.8.1987, Annexure 1. The petitioner has enclosed an information obtained under RTI, Annexure 10, according to which he claims that the show cause was only a formal letter and the decision has already been taken. In order to consider the controversy raised herein, the facts, which were not in dispute, are as follows:- Petitioner's date of birth is 10th July, 1947. He was appointed on the post of Assistant on 1.7.1977. He was granted first time bound promotion w.e.f. 1.3.1987 vide Annexure 1 dated 11.8.1987. The petitioner had admittedly cleared two papers of the Departmental Examination in the year 1985 and 1995 but he could not clear the third paper in the year 1997. However, on completion of 50 years of age on the recommendation of the Principal Chief Conservator of Forest he was granted exemption from passing the Departmental Examination vide Annexure 4, the order dated 28.12.2002 issued by the Personnel and Administrative Reforms Department, Government of Jharkhand. The petitioner, thereafter, got promotion to the post of Section Officer in the year 2004. Before his retirement he was also granted the benefit of first and second A.C.P., vide Annexure 2 dated 16.10.2006 w.e.f. 9.8.1999 and second from 1.3.2001 in the scale of Rs.6500-10500/- and Rs.10000-15200/-. The said order was issued under the signature of the Joint Secretary, Department of Personnel and Administrative Reforms, Government of Jharkhand. After his retirement on 31.7.2007 recommendations were made by the Principal Chief Conservator of Forest Jharkhand for grant of 6th pay revision, vide letter dated 29.4.2009, Annexure 6. The said order was issued under the signature of the Joint Secretary, Department of Personnel and Administrative Reforms, Government of Jharkhand. After his retirement on 31.7.2007 recommendations were made by the Principal Chief Conservator of Forest Jharkhand for grant of 6th pay revision, vide letter dated 29.4.2009, Annexure 6. However, thereafter he was served a show cause notice on 23.2.2010, Annexure 8, as to why he be not reverted to the post of Assistant for having not passed the Departmental Examination at the time when he was granted first time bound promotion. According to the petitioner, as per information furnished under RTI, Annexure 10, after consideration of the petitioner's reply and the matter being referred to the Department of Personnel and Administrative Reforms, Government of Jharkhand, the petitioner has been informed that Department has found no reason to reconsider the said decision to revert him to the post of Assistant. The impugned noting obtained under RTI has also been challenged on behalf of the petitioner, inter alia, on the ground that for grant of time bound promotion, passing of Departmental Examination was not a requirement. In this connection he has relied upon a judgment rendered by Learned Single Bench of the Patna High Court in the case of Lala Devendra Prasad Vs. the State of Bihar & Ors, reported in 2000(1) PLJR 228 and in the case of Bhola Nath Pattanayak Vs. the State of Jharkhand & Ors., reported in 2004(1) JLJR 306 . He has further submitted that there are no departmental proceedings against him during his service period and on fulfillment of necessary criteria i.e. on completion of 50 years of age he has been granted exemption w.e.f. 28.12.2002. Thereafter he was granted promotion to the post of Section Officer also, which is wholly proper in the eye of law. It has further been submitted that the impugned action has been taken after his retirement and that too in respect of the event which took place more than two decades back i.e. at the time of grant of first time bound promotion w.e.f. 1.3.1987, Annexure 1. He has also relied upon a judgment rendered in the case of Alok Prasad Vs. the State of Jharkhand & Ors., passed in W.P. (S) No.2027 of 2009, Annexure 11, in support of his aforesaid contention. He has also relied upon a judgment rendered in the case of Alok Prasad Vs. the State of Jharkhand & Ors., passed in W.P. (S) No.2027 of 2009, Annexure 11, in support of his aforesaid contention. In response, the respondents have submitted that in terms of the circular dated 19.2.1986 it was incumbent upon an employee, who has been granted time bound promotion without passing the Departmental Examination, to clear the same in subsequent two attempts. Service Rule 1992 is in respect of employees under the Secretariat and its attached offices. It is submitted that the promotion to the post of Section Officer requires passing of Departmental Examination. Counsel for the respondents has, therefore, submitted that the grant of first time bound promotion without passing the departmental examination could not have been confirmed and in absence of which the petitioner does not have legal right to be promoted to the post of Section Officer. Therefore, he has been reverted after giving due show cause notice to him. The petitioner admittedly did not pass the departmental examination, however, he was granted exemption in the year 2002. On these grounds the prayer of the petitioner has been rejected. I have heard counsel for the parties and gone through the relevant materials on record. The issue raised in the present writ application is not one which has come for the first time before this Court. It is to be observed at the outset that such issue of grant of time bound promotion more than one or two decades back and, thereafter its cancellation at the fag end of the service of the employee or even after his retirement has engaged sufficient time and attention of this Court. By a conscious decision the petitioner was granted time bound promotion w.e.f. 1.3.1987. Be that as it may, this Court, however, is called upon to decide such an issue once again in the present facts of the case. The facts, which have been noticed hereinabove in respect of the petitioner's service records, are not in dispute. He was granted time bound promotion w.e.f. 1.3.1987 but he had not passed the departmental examination till then. The petitioner has strongly relied upon the judgments rendered in the case of Lala Devendra Prasad (supra) and Bhola Nath Pattanayak (supra) in support of his contention that passing of departmental examination was not a pre requisite for grant of such promotion. He was granted time bound promotion w.e.f. 1.3.1987 but he had not passed the departmental examination till then. The petitioner has strongly relied upon the judgments rendered in the case of Lala Devendra Prasad (supra) and Bhola Nath Pattanayak (supra) in support of his contention that passing of departmental examination was not a pre requisite for grant of such promotion. It is also not disputed that the petitioner was not able to complete the third part of the departmental examination in the year 1997. However, he was granted exemption by a conscious decision taken by the respondents by order dated 28.12.2002 issued by the Personnel and Administrative Reforms Department, Government of Jharkhand on the recommendation of the Principal Chief Conservator of Forest, Jharkhand, Annexure 4. After the said decision the petitioner has been granted promotion in the year 2004 to the post of section officer. It fails to stand to reason that when the exemption was already granted on 28.12.2002 the promotion granted to the petitioner thereafter should not be questioned on the ground that the petitioner did not pass the departmental examination. However, that was not the end of the matter. The respondents chose to grant him the benefit of first and second ACP also by order dated 16.10.2006, Annexure 2 issued by the Personnel and Administrative Reforms Department, Government of Jharkhand. The entire impugned exercise has been done after his retirement on 31.7.2007 by issuance of impugned notice on 23.2.2010. The impugned show cause notice shows that his promotion is invalid for the reason that he was given time bound promotion in 1987 without passing the departmental examination. I am afraid such a ground taken after almost 27 years of the grant of time bound promotion is neither reasonable nor proper in the eye of law, more so when there is no fraud or misrepresentation on the part of petitioner. The Supreme Court in the case of Kushswar Nath Pandey Vs. State of Bihar & ors, reported in (2013) 12 SCC 580 had occasion to deal with one such instance where grant of time bound promotion 11 years earlier were cancelled by the respondents authorities in similar circumstances. Such acts of the respondents were disapproved and the judgment of the learned Single Judge quashing the same was up held. The relevant extracts of the said judgment are appropriate to be quoted herein-below : “6. Mr. Such acts of the respondents were disapproved and the judgment of the learned Single Judge quashing the same was up held. The relevant extracts of the said judgment are appropriate to be quoted herein-below : “6. Mr. Rai, learned Senior Counsel for the appellant points out that there was no fraud or misrepresentation on the part of the appellant. The appellant was given a timebound promotion by the Department concerned. If at all the examination was required to be passed, he had passed it subsequently in 2007 much before the cancellation orders were issued in 2009. Mr. Rai relied upon two judgments of this Court in Bihar SEB v. Bijay Bhadur (2000) 10 SCC 99 : 2000 SCC (L&S) 394 and Purshottam Lal Das v. State of Bihar (2006) 11 SCC 492 : (2007) 1 SCC (L&S) 508 wherein it has been held that recovery can be permitted only in such cases where the employee concerned is guilty of producing forged certificate for the appointment or got the benefit due to misrepresentation. 7. The learned counsel for the State of Bihar submitted that under the relevant rules passing of this examination was necessary. He referred us to the counter affidavit of Respondent 1 wherein a plea has been taken that under the particular Government Circular dated 26.12.1985 the amounts in excess are permitted to be recovered. He relied upon Clause (j) of the Government Circular dated 1.4.1980 to the same effect. 8. Mr. Jain learned Additional Solicitor General appearing for the Accountant General drew our attention to another judgment of this Court in Chandi Prasad Uniyal v. State of Uttarakhand (2012) 8 SCC 417 : (2012) 4 SCC (Civ) 450 and particularly para 14 thereof which states that there could be situations where both the payer and the payee could be at fault and where mistake is mutual then in that case such amounts could be recovered. 9. In our view, the facts of the present case are clearly covered under the two judgments referred to and relied upon by Mr. Rai. The appellant was not at all in any way at fault. 9. In our view, the facts of the present case are clearly covered under the two judgments referred to and relied upon by Mr. Rai. The appellant was not at all in any way at fault. It was a timebound promotion which was given to him and some eleven years thereafter, the authorities of the Bihar Government woke up and according to them the timebound promotion was wrongly given and that the relevant rules are being relied upon and that too after the appellant had passed the required examination. 10. In our view, this approach was totally unjustified. The learned Single Judge was right in the order that he has passed. There was no reason for the Division Bench to interfere. The appeal is therefore allowed. The judgment of the Division Bench is set side. The writ petition filed by the appellant will stand decreed as granted by the learned Single Judge. The parties will bear their own costs. Further it appears from Annexure 10, which is an information under RTI that the respondents had found no reason to reconsider the decision of reverting the petitioner to the post of Assistant on the same ground of having not passed the departmental examination when the time bound promotion was granted in the year 1987. Therefore, in totality, considering the aforesaid facts and circumstances, reasons recorded hereinabove and the judgment rendered by the Hon’ble Supreme Court on similar issues, the impugned action of the respondents in seeking to annul a promotion granted to the petitioner to the post of section officer in the year 2004 cannot be sustained in the eye of law. Accordingly, the said show cause notice dated 23.2.2010 is quashed. Consequently the information obtained under RTI, Annexure 10, also shall be of no effect. Since the petitioner has retired on 31.7.2007 and 6th Pay Revision was implemented w.e.f. 1.2.2006, he would be entitled to the benefit of revision on his post retirement dues as may be admissible along with its arrears in accordance with law. Let the admissible consequential benefits of such pay revision be given to the petitioner within a period of 10 weeks from the date of receipt of a copy of this order. This writ petition is allowed in the aforesaid manner.