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2018 DIGILAW 759 (JHR)

Dinesh Prasad Gupta v. State Of Jharkhand

2018-04-04

S.N.PATHAK

body2018
ORDER S.N. Pathak, J. - Heard learned counsel for the petitioner and learned counsel for the respondents. 2. Petitioner confines his prayer with respect to quashing of letter No. 3017 dated 17.07.2017 (Annexure-7) issued by the Agriculture Director, Govt, of Jharkhand, Ranchi, whereby the Block Development Officer, Gamharia is directed to calculate all the increments except the first increment after his appointment till 15.06.2017 without cumulative effect and recovery of the same from him. Further prayer has also been made for payment of entire increments and arrears of salary which were stopped pursuant to letter bearing memo No. 941 dated 21.12.2015 (Annexure-2). 3. The facts of the case lies in a narrow compass. The petitioner was appointed as Block Agriculture Officer on 17.03.1988 and posted at Shikari Para Block, Dumka. Thereafter, he was transferred to several Blocks of the State and finally, he was transferred to Gamharia Block in March, 2014 where he is working on the same post. It is the further case of the petitioner that he passed the local Santhali language exam in the year 1990 and also passed the Hindi Noting and Drafting Examination held in the year 1991. But he has not passed the departmental examination because in his entire service career the government has conducted examinations only in the years 2005 and 2007. In the year 2005, he came to know about the same after due date and in the year 2007, though the petitioner has also filled-up the form for appearing in the departmental examination but he was not allowed by the then Block Development Officer to leave the headquarter as he was deputed in the election work and as such, he was not able to appear in the said examination and more so the government has also not conducted the department examination for Agriculture Subordinate Services. Thereafter, vide his letter dated 30.11.2015, the Deputy Director, Administration, Agriculture has directed the Block Development Officer, Gamharia to send his report with his opinion as to how the petitioner has continuously been granted increments without passing the departmental examination, which is an essential criteria for grant of increment to an employee of Agriculture Sub-ordinate Service-01. In compliance of the said letter, the Block Development Officer withheld the salary of the petitioner vide memo No. 941 dated 21.12.2015. In compliance of the said letter, the Block Development Officer withheld the salary of the petitioner vide memo No. 941 dated 21.12.2015. It is the further case of the petitioner that on 28.12.2015, the petitioner has submitted his representation before the Block Development Officer, Gamharia mentioning therein that after constitution of Jharkhand State, departmental examination was conducted in the year 2007 for the Agriculture Officer and in the said examination, he was not allowed to appear as he was in the election duty. After withholding of the salary, the petitioner submitted his representation before the Block Development Officer that due to stoppage of his salary, he is in acute financial crisis and hence, prayed to start his salary as was being paid earlier but the authority concerned has not given any heed to the same. Meanwhile, the petitioner applied for grant of relaxation from the departmental examination, as he has already completed 50 years of age, which was accordingly granted vide memo No. 1967 dated 15.06.2017. Thereafter, the Agriculture Director vide his letter No. 3017 dated 17.07.2017 (Annexure-7) directed the Block Development Officer, Gamharia to calculate all the increments except the first increment after his appointment till 15.06.2017 without cumulative effect and recover the same from his salary as per the order. It is the further case of the petitioner that subsequently, he again filed representation on 25.07.2017 before the Agriculture Director stating that only six years of services is remaining and if the recovery order is passed, than all family member will suffer acute financial crisis and has also requested that the recovery may not be made from him but till date no decision has been taken and hence, the petitioner has no option but to knock the door of this Hon''ble Court for redressal of his grievances. 4. Mr. Manindra Kumar Sinha, learned counsel appearing for the petitioner strenuously urges that respondents have passed the orders of recovery withholding the entire increments which accrued to him and was paid since the year 1993. Learned counsel further submits that the order of recovery passed vide letter dated 17.07.2017 (Annexure-7) is not tenable in the eyes of law as the same has been passed after 20 long years when the petitioner has already received the increments for which he was entitled. Learned counsel further submits that the order of recovery passed vide letter dated 17.07.2017 (Annexure-7) is not tenable in the eyes of law as the same has been passed after 20 long years when the petitioner has already received the increments for which he was entitled. Learned counsel further argues that he was entitled for the increments which was rightly paid to him as no examinations were held before 2005 and he was receiving the increments from 1993 itself. Learned counsel further argues that as per the rules also in every six months, examination was to be held but the same was not done and even the petitioner has been exempted from passing of the examination after attaining the age of 50 years. It was only once i.e. in the year 2007, he did not appear in the exams and after that no exams were held for which he cannot be hold responsible. If at all examinations could have been held from 1993, he would have certainly appeared in the said examinations and as such, after 20 long years, the order of recovery cannot be justified. 5. Per contra, counter-affidavit has been filed by the respondents. Mr. Arbind Kumar, learned counsel appearing for the respondents submits that petitioner was not entitled for the increments, which he was receiving from the year 1993. Learned counsel further argues that since the departmental examination was last conducted in the year 2007 and as such, as per the instruction contained in letter dated 15.05.1972 issued by the Personnel and Administrative Reforms Department, Bihar, Patna, he has been exempted from passing the departmental examination vide office order dated 13.06.2017, issued under the signature of the Deputy Secretary, Agriculture, Animal Husbandry and Cooperative Department, Govt, of Jharkhand, Ranchi and a copy of the same has been forwarded to all concerned with a copy to the petitioner. Learned counsel places heavy reliance on Rule 392(1), which is annexed Annexure-A to the Counter Affidavit and argues that for getting annual increments, passing of departmental examinations within two years from the date of appointment is a must. Petitioner is entitled for increments only after grant of exemption and not prior to that and as per the Rules, he has to pass departmental examinations for entitlement of getting increments. Petitioner is entitled for increments only after grant of exemption and not prior to that and as per the Rules, he has to pass departmental examinations for entitlement of getting increments. Justifying the impugned order, learned counsel submits that there is no any illegality or infirmity in recovering the amount of which petitioner was not entitled for. 6. Be that as it may, having gone through the rival submissions of the learned counsel for the parties, this Court is of the considered view that petitioner cannot be said to be at fault for receiving the annual increments. Without issuance of any notice or show-cause, the order of recovery has been passed that too after 20 long years. The law is well settled on the point that any order of recovery passed without following principles of natural justice is not tenable in the eyes of law. The Full Bench of this Hon''ble Court in case of Normi Topno v. State of Jharkhand, reported in 2007 (4) JLJR 466 , has clearly held that any order visiting with civil or evil consequences, cannot be acted upon without affording an opportunity of hearing and without following the cardinal principles of natural justice. Admittedly, no examinations were held from 1993. It was only in the years 2005 and 2007, the examinations were held and the petitioner having cogent reasons for not participating in the said examination of the year 2007. Reliance of the learned counsel for the respondents on Rule 392(1), which stipulates that for getting annual increments, passing of departmental examinations within two years from the date of appointment is a must is not acceptable by this Court, inasmuch as, petitioner in the instant case was appointed in the year 1988 and he was getting increments from 1993 onwards and no exams were held till 2005. So arguments advanced by the learned counsel for the respondents is not at all tenable in the eyes of law as no opportunity was granted to the petitioner to appear in the exams within two years from the date of his appointment, as no exams were held at all from the date of his initial appointment. Clause-4 of Rule-392 clearly provides that in every six months examinations have to be held but in the instant case, in the entire service career of the petitioner only two exams were held. 7. Clause-4 of Rule-392 clearly provides that in every six months examinations have to be held but in the instant case, in the entire service career of the petitioner only two exams were held. 7. The Hon''ble Apex Court in para-18 of the judgment passed in case of State of Punjab v. Rafiq Masih (whitewasher) & Ors., reported in (2015) 4 SCC 334 has held 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, summarize 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 employer''s right to recover." 8. The Full Bench of this Hon''ble Court in case of Normi Topno v. State of Jharkhand (supra) has clearly held that any benefits which continued for 20 long years cannot be taken away without following the principles of natural justice. Here it was only in the year 2015, the respondents woke-up from the deep slumber for issuance of order of recovery without following the principles of natural justice. 9. As a cumulative effect of the aforesaid observations, rules, guidelines and the judicial pronouncements, the order of recovery dated 17.07.2017 (Annexure-7) issued by the Agriculture Director, Govt, of Jharkhand, Ranchi, is hereby quashed and set aside. 9. As a cumulative effect of the aforesaid observations, rules, guidelines and the judicial pronouncements, the order of recovery dated 17.07.2017 (Annexure-7) issued by the Agriculture Director, Govt, of Jharkhand, Ranchi, is hereby quashed and set aside. Needless to say that if any amount has been recovered from the petitioner, the same should be refunded to him within a further period of six weeks from the date of receipt/production of a copy of this order and if the amount has not been recovered, the same shall not be recovered in future. 10. Resultantly, the writ petition stands allowed.