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2017 DIGILAW 195 (JHR)

Bindhyachal Devi v. State of Jharkhand

2017-01-27

S.N.PATHAK

body2017
ORDER : At the very outset learned counsel for the petitioner fairly concedes that there is no grievance in respect of compassionate appointment as petitioner's daughter has already been appointed on compassionate ground and as such, he confines his arguments towards revised pension including benefits of AGP. 2. Heard the parties. 3. The petitioner has filed the instant writ petition seeking direction upon the respondents to pay pension of the petitioner on the basis of enhanced pay scale after promotion of the deceased husband as he was promoted twice on the basis of AGP but pension is being paid after deduction of the enhanced pay of her late husband. 4. The facts in short as has been delineated in the writ petition is that petitioner's husband Shiv Govind Ram was appointed in the office of Superintending Engineer, Education Department, Government of Bihar vide memo no. 129 dated 18.10.1981 on the post of Clerk-cum-typist. After his joining on 16.1.1982, he continued to work under the Executive Engineer, Education Department, Ranchi till his transfer to the office of Assistant Engineer, Singhbhum, Chaibasa where he joined on 8.6.1985. First time bound promotion was granted to him vide order no. 92, memo no. 2741, dated 30.12.1992. The Government of Bihar, vide order no. 1327, dated 7.4.1998, ordered for adjustment of the employees of the Education Department in the Building Construction Department and thereafter, petitioner's husband joined office of the Executive Engineer, Building Construction Department, Hazaribagh On 1.7.1998. Thereafter, he was transferred in the office of the Building Construction Department, Chatra on 23.2.1999. The Executive Engineer, Chatra, Building Construction Department, cancelled the first time bound promotion given to him on 16.1.1992 and further ordered for recovery of Rs. 33,956/-, however allowed the similarly situated employees without canceling their time bound promotion. Thereafter, Government of Jharkhand, vide letter no. 5207, dated 14.8.2002, announced to give AGP to all the Government employees and on the basis of the same, the Superintending Engineer, Building Construction Department, Hazaribagh Circle, vide memo no. 2392, dated 12.11.2003, confirmed his first ACP since 9.8.1995 and on the basis of the same, the salary was directed to be paid to him. In spite of the same, the Executive Engineer did not pay the enhanced salary to the employee (petitioner's husband). Thereafter, the Superintending Engineer, Building Construction Department, Hazaribagh Circle, vide memo no. 2392, dated 12.11.2003, confirmed his first ACP since 9.8.1995 and on the basis of the same, the salary was directed to be paid to him. In spite of the same, the Executive Engineer did not pay the enhanced salary to the employee (petitioner's husband). Thereafter, the Superintending Engineer, Building Construction Department, Hazaribagh Circle, vide memo no. 710, dated, 26.6.2008, announced for the 2nd ACP from 16.1.2006 but again the Executive Engineer Building Construction Department, Chatra did not allow the payment of salary on the basis of enhanced salary. Due to arbitrary action of respondents, the petitioner's husband suffered from acute depression and frustration resulting his death in harness on 17.4.2007. Even after his death, the Executive Engineer, Building Construction Department. Chatra deducted Rs. 8,550/- from the death benefits which is against the principles of natural justice. 5. The petitioner, after death of her husband, approached Executive Engineer, Building Construction Department, Chatra requesting him for payment of due amount. The Petitioner also represented before the Superintending Engineer, Building Construction Department, Hazaribagh Circle with a copy to the Deputy Commissioner, Hazaribagh, but to no effect. The Accountant General, Jharkhand also confirmed time bound promotion of the late husband of the petitioner. The Deputy Commissioner, Hazaribagh confirmed ACP of the deceased i.e. 1st ACP from 9.8.1999 and 2nd ACP since 16.1.2006 and the same was mentioned in the service record of the petitioner. After confirmation of ACP, the District Accounts officer requested for revised pay scale and confirmed the same but the Executive Engineer did not act on the same. 6. The petitioner, thereafter, approached office of the Superintending Engineer, Building Construction Department, Hazaribagh on 5.4.2010 and requested for doing the needful but he also ordered to cancel the 1st and 2nd ACP dated 1.1.1996 and 1.2.2006 respectively without any show-cause or opportunity of being, heard. On the basis of petitioner's representation, the Superintending Engineer directed the Executive Engineer, Chatra to act upon her representation. Even after confirmation of the AGP and requests made by the District Accounts officer for revised pay scale, the Executive Engineer did not do the same. 7. Learned counsel for the petitioner submits that AGP was given to the deceased employee without any misrepresentation while the same has been cancelled without any show-cause. Even after confirmation of the AGP and requests made by the District Accounts officer for revised pay scale, the Executive Engineer did not do the same. 7. Learned counsel for the petitioner submits that AGP was given to the deceased employee without any misrepresentation while the same has been cancelled without any show-cause. The ground taken by the respondents that the deceased employee had not passed the Accounts Examination is a frivolous ground as the same is not necessary for getting time bound promotion. Learned counsel has further relied on the Judgment reported in 2001 (1) PLJR 228 wherein it has been categorically stated that the time bound promotion cannot be denied on the ground of not passing of departmental examination. Learned counsel further relied in the Judgment passed in C.W.J.C. No. 42 of 1989(R). Learned counsel further relied in the Judgment passed in C.W.J.C. No. 1824 of 1995(R) wherein it has been held that the employee is entitled to get the first and second time bound promotion without even passing the accounts examination. By referring the Judgment passed in W.P.(S) No. 3793 of 2004, it is pointed out that the Full Bench of this Court has held that in absence of material to show that excess amount was received without misrepresentation, collusion, fraud or negligence, the said excess amount cannot be recovered out of the retiral dues without following the procedures contemplated under Rule 43(b) of the Bihar Pensions, Rule. Learned counsel submits that action of the respondents authorities was totally illegal, void and without jurisdiction as passing of examination in relation to the time bound promotion is not essential in view of the orders passed by this Hon'ble Court in catena of decisions and on frivolous grounds widow cannot be harassed for a long period of time. 8. On the other hand, counter affidavit has been filed by the respondents-State. Learned counsel for the State submits that petitioner's daughter has already been appointed as Accounts Clerk vide memo no. 225, dated 2.2.2010. The deceased employee could not have been granted AGP as he had not passed the departmental accounts examination to make him eligible for the said benefits. The claim of the petitioner does not survive and as such instant writ petition is fit to be dismissed. 225, dated 2.2.2010. The deceased employee could not have been granted AGP as he had not passed the departmental accounts examination to make him eligible for the said benefits. The claim of the petitioner does not survive and as such instant writ petition is fit to be dismissed. Learned counsel further submits that the State Government has got right of withholding or withdrawing the pension and has got the right of recovery from the pension where there is any pecuniary loss caused to the Government. 9. I have heard the counsel for the parties and gone through records of the case. So far claim for appointment on compassionate ground is concerned, it is already submitted by learned counsel for the petitioner that daughter of the deceased employee has already been granted employment on compassionate grounds and as such, the same is not pressed. 10. So far other claim of the petitioner is concerned, I have gone through the Judgments cited by the petitioner and the guidelines which could be culled out from those decisions are as under: (i) When the excess payment was made not on account of the misrepresentation made by the employee and due to the wrong calculation made by some other employee, the alleged excess amount cannot be recovered from the Pension and Gratuity of the said employee after retirement or death. (ii) After retirement or death and after long lapse of several years from the date of promotion, it is not open to the department to raise the question of legality and propriety of promotion. (iii) The issue cannot be reopened with reference to the legality of the promotion given to the employee when he was in service at the belated stage nor the authorities can recover any amount where there is no proceeding' under Rule 43(b) of the Bihar Pension Rules, having been initiated. (iv) After a period of more than twenty years from the date of promotion and after retirement, the retired employee cannot be deprived of all these benefits in absence of any misrepresentation or fraud attributable to him. (v) Action for recovery from pension and gratuity, without affording any opportunity of being heard to the employee, would cause great. prejudice to the said employee. (vi) Any order causing prejudice to a person cannot be passed without giving an opportunity of hearing. (v) Action for recovery from pension and gratuity, without affording any opportunity of being heard to the employee, would cause great. prejudice to the said employee. (vi) Any order causing prejudice to a person cannot be passed without giving an opportunity of hearing. (vii) The order passed violating the principles of natural justice is null and void. (viii) Before recovery or adjustment of any amount from the pension and gratuity in the case of mistaken calculation or payment in excess, the retired employee must be given opportunity of hearing to state as to why the amount be not recovered from his pension or gratuity and in that event, .it would be open to the retired employee to show that such recovery or adjustment is uncalled for or barred by limitation. (ix) While the ACP granted on the basis of a wrong impression, the department ought to conduct an inquiry regarding the validity of promotion and should give the findings that the same is invalid and liable to be cancelled. 11. The above guidelines would clearly indicate that though the Government has got powers to recover the excess amount paid by mistake or on wrong promotion, it can recover the same after retirement or death from his pension and gratuity only under the procedure as contemplated under Rule 43(b). Admittedly, no amount/excess amount was received by the petitioner or her deceased husband on misrepresentation, collusion, fraud or negligence. Admittedly, without giving opportunity to the petitioner to defend her case, a decision has been taken behind her back mechanically depriving her rights. The Supreme Court has held in the case of Sahib Ram vs. State of Haryana [1995 Suppl. (1) SCC 18] that unless the excess amount was paid due to any misrepresentation made by the employee, the amount paid cannot be recovered from the employee. It is also settled law that any order causing prejudice to a person cannot be passed without giving any opportunity of being heard. 12. The questions involved in this writ petition is no more res integra in the cases of Syed Abdul Qadir vs. State of Bihar and Others [ (2009) 3 SCC 475 ] [: 2009 (2) JLJR (SC) 32], Chandi Prasad Uniyal VS. 12. The questions involved in this writ petition is no more res integra in the cases of Syed Abdul Qadir vs. State of Bihar and Others [ (2009) 3 SCC 475 ] [: 2009 (2) JLJR (SC) 32], Chandi Prasad Uniyal VS. State of Uttrakhand and Others [ (2012) 8 SCC 417 ] [: 2012 (4) JLJR (SC) 93], State of Punjab and Others vs. Rafiq Masih and Others [ (2015) 4 SCC 334 ] [: 2015 (1) JLJR (SC) 323], wherein it has been held by the Apex Court that the recovery from the employees belonging to Class-III and IV services, is not permissible in law. Relying upon the aforesaid decisions same view has been taken by the Division Bench of this Court in United India VS. Basant Kumar Mandai and. Others passed in W.P.(S) No. 3108 of 2016 decided on 11.8.2016. Similar view has been taken in the case of Normi Topno VS. State of Jharkhand and Others [ 2007 (4) JLJR 466 ]. In the case of N.D.P. Namboodripad VS. Union of India [ (2007) 4 SCC 502 ], the Hon'ble Apex Court has held that in case of excess payment made to the deceased, the said payment would not be recovered from the legal representatives. 13. In the present case, it is admitted fact that recovery has been made after death of the employee and widow (petitioner) has approached this Court. Without giving any opportunity to the petitioner, decision has been taken by the respondents depriving her legitimate right after death of her husband. 14. As a cumulative, effect of the aforesaid rules, guidelines and judicial pronouncements, particularly in the case of N.D.P. Namboodripad (supra), it is held that no recovery can be made from the widow or legal representatives and as such, this writ petition is allowed. The respondents are directed to pay pension of the petitioner on the basis of enhanced pay scale after promotion of the deceased husband as he was promoted twice on the basis of ACP. 15. This writ petition is accordingly allowed.