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2018 DIGILAW 1997 (JHR)

Jeoti Tirkey v. State Of Jharkhand

2018-08-31

PRAMATH PATNAIK

body2018
JUDGMENT Pramath Patnaik, J. - Heard Mr. Praveen Kumar Pandey, learned counsel for the petitioner, Mr. D.K. Dubey, learned Sr. S.C. I appearing for the Respondent-State as well as Mr. Sudarshan Shrivastava, learned counsel for the Respondent No. 6. 2. In the captioned writ application, the petitioner has sought for issuance of a writ of mandamus for quashing the order of the respondent No. 3 vide letter dated 20.03.2009 in Annexure-1, pertaining to recovery of the amount of Rs. 49,086/- from the salary of the petitioner for the period from 29.04.1987 to 2000-2001 for the excess amount of salary in view of the order of the Deputy Accountant General (Respondent No. 6). 3. Bereft of unnecessary details, the facts, as has been disclosed in the writ application are that initially the petitioner was appointed as ''A'' Grade Nurse in the year 1987 and from the date of her appointment, the petitioner has been discharging her duties with utmost sincerity and to the satisfaction of the higher authority. While continuing, as such, the respondent no. 3 vide letter dated 20.03.2009 has directed for recovery of the excess amount of Rs. 49086/- during the period 29.04.1987 to 2000-2001 from the salary of the petitioner due to non-passing of the examination of Hindi Noting and Drafting as per the impugned order vide Annexure-1 to the writ petition. Being aggrieved by the aforesaid order, the petitioner submitted representations raising her objections for such unilateral decision in absence of principles of natural justice. The said representation has been followed with another reminder vide Annexure-3, wherein, the stand has been taken that there is no necessity for passing of the Hindi Noting and Drafting Examination for the post of Auxiliary Nursing Midwife, hereinafter in short to be referred as ''ANM'' but the representation of the petitioner has been rejected vide order dated 08.07.2009 without considering the same in the right perspective. Thereafter, the petitioner also filed further representations vide Annnexure-5 and 5/1 but the said representations seem to have fallen on the deaf ears of the respondents. Thereafter, the petitioner also filed further representations vide Annnexure-5 and 5/1 but the said representations seem to have fallen on the deaf ears of the respondents. It has been averred in the writ application that vide letter dated 26.06.2007 of the Secretary, Health Department, Bihar, which has been adopted by the State of Jharkhand, which, inter alia, envisages that the technical post including the post of ''A'' Grade Nurse, the passing of the examination of Hindi Noting and Drafting is not a condition precedent for grant of increment. Also, the Circular dated-28.02.1972 indicates that the post of the Auxiliary Nursing Midwife is exempted from passing the examination of Hindi Noting and Drafting. Again the Circular dated 30.05.1992 of the Director, Health, Bihar about passing of the Hindi Noting and Drafting has been referred to. The petitioner successfully qualified the Examination of Hindi Noting and Drafting in the year 2003, as per Annexure-10 and 10/1 to the writ application. It has further been submitted in the writ application that the case of the petitioner is covered by the decision rendered in C.W.J.C. No. 9431 of 2006 (Kiran Kumari and others -vs.- State of Bihar and others), wherein, the Hon''ble Court by allowing the writ application has directed for refund of the recovered amount. Being aggrieved by the impugned order vide Annexure-1 to the writ application, the petitioner left with no alternative and efficacious remedy, has been constrained to approach this Court under Article 226 of the Constitution of India for redressal of her grievances. 4. Learned counsel for the petitioner has strenuously urged that the action of the respondents in directing for recovery of the amount of Rs. 49086/- after a long lapse of 22 years is unsustainable in the eyes of law. Learned counsel further submits that the post of ANM, being a technical post and the incumbent holding the post of ANM, is not required to pass Hindi Noting and Drafting Test as per the Government Circulars. Learned counsel further submits that the case of the petitioner is squarely covered by the decision rendered in the case of Kiran Kumari and others -vs.- State of Bihar and others, therefore, the petitioner ought to be extended with the same benefit, as has been extended in the aforesaid case. Learned counsel further submits that the case of the petitioner is squarely covered by the decision rendered in the case of Kiran Kumari and others -vs.- State of Bihar and others, therefore, the petitioner ought to be extended with the same benefit, as has been extended in the aforesaid case. Learned counsel further submits that the action of the respondents being violative of Article 14 and 300 A of the Constitution of India, on the ground that the order of recovery has been passed without issuance of any show cause notice and the impugned order being unsustainable and on that score, the impugned order is liable to be quashed and set aside. 5. Controverting the averments made in the writ application, a counter affidavit has been filed by the respondents. In the counter affidavit, it has been, inter alia, submitted that the petitioner, who is presently working as ''A'' grade nurse had to pass Hindi Noting and Drafting Examination, which is essential condition for grant of increment as per Hindi Examination Rules, 1968 as Annexure-A to the counter affidavit. It has further been submitted that every government servant has to prepare a report and returns in Hindi (Deonagri) script and has to pass the examination for the said post within a period of one year. It has been further averred that the petitioner has not passed the said examination during the said period from 29.04.1987 to 2001 and it is also mandatory for the Government employee (''A'' grade nurse) to prepare report etc. It has further been averred that on perusal of inspection report no. OAD (NC) I 44/2000-01 conducted by the Accountant General Office, it was found that the petitioner was allowed increment without passing Hindi Noting and Drafting Examination and due to which excess payment of salary to the tune of Rs. 49086/- has been made, as evident from Annexure-B to the counter affidavit. Further, it has been submitted that the respondent No. 3 has passed the order under challenge on the basis of the Inspection Report and as per Rule 7 of Hindi Examination Rule, 1968, it is mandatory for every government servant except Grade IV employee to pass Hindi Noting and Drafting Examination and the decision relied upon by the petitioner in C.W.J.C. No. 9431 of 2006 has no application to the present case. 6. 6. Learned counsel for the Respondents-State apart from reiterating the submissions made in the counter affidavit has submitted that passing of the Hindi Noting and Drafting Examination is a condition precedent for grant of increment as per the Hindi Examination Rule, 1968 and since the petitioner did not pass the said examination, prior to 2001, basing on the objection by the respondent no. 6, the impugned order has been passed, directing for recovery of the excess amount from the salary of the petitioner, therefore, there is no illegality on the part of the respondent No. 3 to have issued such order for recovery of the lawful dues from the petitioner. 7. Mr. Sudarshan Shrivastava, learned counsel for the Respondent No. 6 submits that if the passing of the Hindi Noting and Drafting Examination is not required, then why the petitioner appeared in the said examination and passed the same in the year 2003, as per Annexure-10 and 10/1 and therefore, the respondent no. 6 has raised an audit objection for grant of illegal increment to the petitioner from 29.04.1987 to 2000- 2001. 8. Having bestowed my anxious consideration to the rivalised submissions and on perusal of the records, I am of the considered view that the petitioner has been able to make out a case for interference due to the following facts and reasons : - (i) Admittedly, the impugned order has been passed in the year 2009 and the petitioner has been granted the benefit of increment in the year 1987 till 2001 and the order of recovery has been passed by the respondent after a considerable lapse of time and that too without issuing any show cause and on that score, the impugned order cannot be sustained. (ii) Nothing has been brought on record that the petitioner has resorted to any fraudulent means or is a beneficiary of any fraud or misrepresentation for grant of any increment to her salary on the post of Auxiliary Nursing Midwife since the petitioner has enjoyed the benefit of increased salary, even without non-passing of the Hindi Noting and Drafting Examination till 2001, it would not be proper and justifiable on the part of the respondents to recover from the salary of the petitioner. The view of this Court gets fortified by the decision rendered by the Full Bench of this Court in Smt. Normi Topno Vs. The view of this Court gets fortified by the decision rendered by the Full Bench of this Court in Smt. Normi Topno Vs. The State of Jharkhand & Others , (2007) 4 JLJR 466 subsequently applicable to the case of the petitioner. In the aforesaid decision, it has been held by the Full Bench of this Court that once the monetary benefits is already paid to the employees and there is no allegation of misrepresentation or fraud, the amount cannot be recovered. Similar view has been taken by this Court in case of Amar Nath Singh Vs. State of Bihar and others , (2004) 2 JCR 342 (Jhr). Recently, The Hon''ble Apex Court in the judgment in the case of State of Punjab And Others Vs. Rafiq Masih (white washer) , (2015) 4 SCC 334 And Others relying on various judgment including judgment rendered in the case of Chandi Prasad Uniyal And Others Vs. State of Uttarakhand And Others , (2012) 8 SCC 417 has been pleased to hold in paragraph 18 of Rafiq Masih (white washer) case as under:- 18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employers right to recover. 9. (v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employers right to recover. 9. In view of the reasons stated in foregoing paragraphs and as cumulative effect of the aforesaid reasons and judicial pronouncement, the impugned order vide Annexure-1 to the writ petition is hereby quashed and set aside. 10. Resultantly, the writ petition stands allowed.