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2015 DIGILAW 901 (JHR)

Shiv Chandra Singh v. State of Jharkhand

2015-08-03

RONGON MUKHOPADHYAY

body2015
Judgment R. Mukhopadhyay, J. In this writ application, the prayer of the petitioner is for quashing the letter no. 850 dated 17.04.2010, issued by the respondent no. 4, whereby and whereunder, the First Time Bound Promotion granted to the petitioner with effect from 10.10.1990 has been cancelled and a direction has been issued to recover the difference of excess salary given to the petitioner due to the said First Time Bound Promotion. Further prayer has been made by the petitioner for a direction upon the respondents to grant the petitioner benefits of 2nd Time Bound Promotion with effect from 13.12.1995, First and Second ACP with effect from 09.08.1999 as also to revise the pay scale of the petitioner in view of 6th Pay Revision Committee’s Report and thereafter to re-fix the pension of the petitioner as also grant of consequential benefits. 2. The petitioner was initially appointed as Operator in work charge establishment on 29.08.1966 and subsequently the service of the petitioner was absorbed in regular establishment vide Memo No. 7357 dated 09.11.1978 issued by the Chairman cum Managing Director, Bihar Water Development Corporation, Patna with effect from 29.08.1976. The petitioner was thereafter promoted to the post of Revenue Moharir in the cadre of Lower Division Clerk vide letter no. 8236 dated 4.10.1980. The services of the petitioner was transferred to General Provident Fund Directorate, Bihar, Patna, vide order no. 390 dated 18.10.1986 and accordingly the petitioner joined in the office of the District Provident Fund, Dhanbad. By virtue of letter no. 897 dated 25.11.1992, the petitioner was granted First Time Bound Promotion with effect from 10.10.1990. On 30.06.2007, the petitioner retired on attaining the age of superannuation. 3. It is the case of the petitioner that since petitioner was not granted Second Time Bound Promotion as well as the benefits of ACP and revisions of scales of pay, he had represented the authorities on several occasions but instead of redressing his grievances, the petitioner was served with letter no. 850 dated 17.04.2010 issued by the respondent no. 4, wherein the First Time Bound Promotion granted to the petitioner with effect from 10.10.1990 was cancelled and a direction was made for recovery of the excess amount paid to the petitioner on account of such grant of time bound promotion. 4. Heard Mr. Prabhat Kumar Sinha, learned counsel for the petitioner and learned J.C. to G.P. II, for the respondents-State. 5. 4. Heard Mr. Prabhat Kumar Sinha, learned counsel for the petitioner and learned J.C. to G.P. II, for the respondents-State. 5. Mr. Prabhat Kumar Sinha, learned counsel for the petitioner, has submitted that the respondents had granted First Time Bound Promotion on 25.11.1992 with effect from 10.10.1990 and the same could not have been cancelled after more than 18 years without there being any valid reasons whatsoever. It has been submitted that admittedly there was no misrepresentation on the part of the petitioner leading the respondents to grant First Time Bound Promotion. The petitioner was never issued any prior notice or show cause before passing of the impugned order dated 17.04.2010 and in absence of the same, impugned letter deserves to be quashed and set aside for violating the principles of natural justice. It has also been submitted that the petitioner had superannuated on 30.06.2007 and after almost 3 years from his date of superannuation, the impugned letter has been issued and the petitioner cannot be permitted to recover the alleged excess amount from the retiral dues of the petitioner including pension. 6. Learned J.C. to G.P. II has submitted that since the petitioner did not pass the departmental examination and which escaped the notice of the authorities, as such the impugned letter dated 17.04.2010 was issued canceling the grant of such Time Bound Promotion. It has also been submitted that the petitioner had appeared in the departmental accounts examination in the year 1996 but even in the said examination, the petitioner did not succeed in second paper of accounts, which debars the petitioner from being granted the Time Bound Promotion. Learned J.C. to G.P. II has also referred to letter no. 493 (Finance) dated 22.02.2007, issued by the Deputy Secretary, Department of Finance, Government of Jharkhand, following Circular No. 4178 dated 12.08.1992, 8094(F) dated 21.11.2000 and 4116 dated 29.11.2001 of Special Secretary, Department of Finance, Patna, which makes it clear that the staffs, whose promotion was due on or before 1.9.1983 but could not pass the departmental examination were entitled to promotion but after 1.9.1983 eligibility for promotion shall depend on qualifying in the accounts examination in both the papers. 7. It is not in dispute that the petitioner was granted First Time Bound Promotion with effect from 10.10.1990. 7. It is not in dispute that the petitioner was granted First Time Bound Promotion with effect from 10.10.1990. It is also not in dispute that the Time Bound Promotion so given was cancelled vide letter dated 17.04.2010 without there being any notice upon the petitioner or without giving any opportunity of hearing to the petitioner. 8. The First Time Bound Promotion, which was granted to the petitioner was not on account of any fraud played on the part of the petitioner or any misrepresentation. Sans the misrepresentation or fraud, the petitioner was granted First Time Bound Promotion. The petitioner raised the issue with respect to several other benefits, which he claimed to have been deprived and on recommendation by the authorities subsequently it was detected with respect to his alleged illegal grant of First Time Bound Promotion resulting in issuance of the letter dated 17.04.2010. After completion of 50 years of age, the petitioner automatically becomes entitled for relaxation from passing the departmental examination. The petitioner had appeared in the departmental examination although at a later stage but as has been stated by the respondents, the petitioner did not succeed finally in accounts paper. The respondents in a whimsical manner had cancelled the First Time Bound Promotion granted to the petitioner without giving him any opportunity of hearing. This also is one of the grounds, by which the impugned order should be interfered with. Moreover, since the petitioner has already superannuated on 31.07.2010, the respondents are precluded from taking any action with respect to cancellation or recovery of the alleged excess payment made to the petitioner in absence of any misrepresentation on the part of the petitioner or in absence of any proceeding under Rule 43(b) of the Jharkhand Pension Rules. 9. In this context, reference may be made to the case of Raj Kishore Prasad Vs. The State of Jharkhad & Ors., reported in 2015 (1) JCR 339 (Jhr) and the relevant portion for the purposes of the present case is quoted hereinbelow:- "6. Having considered the rival submissions of the parties and the materials on records as also the judgment rendered in the case of Ayoddhya 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. Having considered the rival submissions of the parties and the materials on records as also the judgment rendered in the case of Ayoddhya 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 28.5.2002, 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". 10. So far as the claim of the petitioner with respect to grant of Second Time Bound Promotion, ACP and the arrears arising out of revision of scales of pay as well as other consequential benefits is concerned, it is for the authorities to decide the same at the first instance. 11. As a cumulative result of the discussions made hereinabove, the letter no. 850 dated 17.04.2010, issued by the respondent no. 4 is hereby quashed and set aside. So far as rest of the benefits which the petitioner has enumerated in prayer-II of the writ application, the petitioner is at liberty to make a representation before the respondent no. 3 within a period of two weeks and if any such representation is filed, the respondent no. 3 is directed to dispose of the same by a speaking and reasoned order within a period of eight weeks from the date of receipt of representation. 12. It is further made clear that if any recovery has been made pursuant to letter no. 850 dated 17.04.2010, the same shall be refunded back to the petitioner within a period of two weeks from the date a copy of this order is produced before the respondent no. 4. 13. This writ application is disposed of in terms aforesaid. 14. Pending I.As, if any, also stand disposed of.