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2020 DIGILAW 1111 (JHR)

Baldeo Singh v. State of Jharkhand

2020-11-26

DEEPAK ROSHAN

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ORDER : Deepak Roshan, J. 1. Heard learned counsel for the parties through V.C. 2. Since common issue is involved in all these writ applications, as such all of them have been heard together and disposed of by this common order. 3. All these writ applications were filed for quashing the letter No. 4026 dated 31.12.2007 whereby, the salary which was being paid to these petitioners on the basis of their promotion were stopped and further direction was made to recover the excess amount already paid. The details of the petitioners of all these writ applications are in the tabular form as under:-- "The service details of the petitioners are as under: Sl. No. Name of the petitioner Date of appointment Date of Grant of Graduate Trained Seniority position In the Graduate Trained Scale (Ann-1) Date of Promotion as Headmaster Correction in the date Of promotion as Headmaster (Shifting of dates as per office order Dated 12.06.2003) (Ann-3) Date of retirement Name of School From Where retired. 1. Baldeo Singh 17.10.1973 03.02.1983 249 01.04.1983 31.01.2008 Govt. Middle School, Churchur, Sadar, Hazaribagh 2. Suresh Prasad Singh 22.03.1975 05.03.1981 170 08.10.1986 From 08.10.1986 to 01.04.1982 31.07.2008 Middle School Garikala, Keredari, Hazaribagh 3. Ram Naresh Kumar 01.07.1975 05.03.1981 173 08.10.1986 From 08.10.1986 to 01.04.1982 28.02.2010 Middle School, Bishnugarh. 4. Nehal Gope 18.10.1973 05.03.1981 162 08.10.1986 From 08.10.1986 to 01.04.1982 31.07.2009 Middle School, Barkattha. 5. Ganesh Ram 01.04.1976 23.10.1981 179 04.10.1986 From 04.10.1986 to 01.04.1982 30.04.2013 Middle School, Mandu, Ramgarh 6. Minnatullah Anr. Petitioner No.1 (Minnatullah) Petitioner No.2 (Ramdas Gope) 15.10.1973 20.10.1973 03.02.83 07.12.83 247 01.04.1983 01.04.1984 Working 30.01.2010 Aadarsh Middle School, Katkamsandi Middle School, Barhi 7. Vijay Kumar Singh 24.10.1973 05.03.1981 167 08.10.1986 From 08.10.1986 01.04.1982 30.09.2013 Govt. Middle School, Keredari, Hazaribagh 8. Iqbal Ahmad 07.04.1975 05.03.1981 172 08.10.1986 From 08.10.1986 01.04.1982 30.06.2011 Govt. Middle School, Orya, Sadar Hazaribagh. 9. Chandramauli Singh Mahendra Kumar Rana 18.10.1973 10.02.1976 05.03.1981 22.11.1981 223 209 01.04.1982 01.04.1982 30.06.2012 31.05.2014 10. Maheshwar Singh 13.02.1976 12.05.1982 24.05.03 4. Learned counsel for the petitioners submits that the issue has already been decided in the case of Md. Usman and Others vs. The State of Jharkhand; W.P.(S) No. 655 of 2008, wherein this Court after hearing the parties and after going through the Finance Department Circular dated 4.4.1985, allowed the writ application and quashed the impugned order. Learned counsel for the petitioners submits that the issue has already been decided in the case of Md. Usman and Others vs. The State of Jharkhand; W.P.(S) No. 655 of 2008, wherein this Court after hearing the parties and after going through the Finance Department Circular dated 4.4.1985, allowed the writ application and quashed the impugned order. Learned counsel further contended that all these writ applications may be disposed of in the light of direction made in the case of Md. Usman (supra). Learned counsels for the State do not object to the aforesaid submissions of the petitioners. 5. Having heard learned counsel for the parties and after going through the order passed in the case of Md. Usman (supra), it appears that this Court after going through the various documents including the Circular dated 04.04.1985 quashed the impugned order and the said impugned order has also been impugned in all these writ applications. For better appreciation of the case, the relevant portion of the order is quoted herein-below: "Heard learned counsel for the parties. It is an admitted position that these petitioners are entitled for promotion to the post of Headmaster and as such, they had been promoted. More so also, their promotion has not been questioned till date. The only dispute has been raised by the respondents on the basis of audit objection regarding the shifting of date of promotion from 1986 to 1982. So far as permission from the Finance Department is concerned, they have relied upon circular dated 04.04.1985, which is annexed as Annexure-B to the counter affidavit dated 12.8.2008. The only dispute has been raised by the respondents on the basis of audit objection regarding the shifting of date of promotion from 1986 to 1982. So far as permission from the Finance Department is concerned, they have relied upon circular dated 04.04.1985, which is annexed as Annexure-B to the counter affidavit dated 12.8.2008. Sub-Clause-2 of the circular dated 4.4.1985 is quoted herein-below: ^^¼2½ laoxZ ds duh; ljdkjh lsod dh mPprj in ij ÁksUufr gksus ds i'pkr~ ojh; dks ÁksUufr dk ykHkA dqN ekeyksa esa laoxZ ds duh; inkf/kdkjh dks mPprj in ij ÁksUufr ns nh tkrh gSA ijUrq ojh; inkf/kdkjh ds fo#) dqN vkjksi yfEcr jgus ds pyrs ;k mudh pfj= ifjr esa Áfrdwy vH;fqDr;ksa ds pyrs ;k fdlh Á'kklfud Hkwy ds pyrs mUgsa le; ij ÁksUufr ugha fey ikrh gS] fdUrq muds fy, in lqjf{kr j[kk tkrk gaSA ;fn Á'kklh foHkkx Lo;a vFkok yksd lsok vk;ksx dh vuq'kalk ij lEc) inkf/kdkjh ds ekeys ij iw.kZ fopkjksijkUr mUgsa duh; dks nh xbZ ÁksUufr dh frfFk ls ÁksUufr ds ;ksX; le>rs gksa] rks lacaf/kr ojh; ljdkjh lsod dks duh; dks nh xbZ dh frfFk ls ÁksUufr nsrs gq, mudk osru mPprj osru esa bl Ádkj fuf'pr fd;k tk,xk ekuks os duh; dks nh xbZ ÁksUufr dh frfFk ls ÁksUur gks] ijUrq ojh; ljdkjh lsod ds }kjk fofgr ÁfØ;k dk vuqlj.k djrs gq, fuxZr l{ke vkns'k@vf/klwpuk ds vk/kkj ij in Hkkj xzg.k djus dh frfFk ds iwoZ dk dksbZ cdk;k vuqekU; ugha gksxkA** Thus, this clause clarifies that if seniors are being adjusted as per their inter se seniority, no prior permission is required to be taken from the Finance Department and this argument advanced by the learned counsel for the respondent is contrary to their own circular. So far as availability of the post is concerned, petitioners have brought on record the enquiry report submitted by the enquiry officer, which had been initiated against the then District Superintendent of Education. The then District Superintendent of Education had been charged for giving promotion in excess of service strength, but thereafter it has been found that promotion had been given within the strength of service and as such, no illegality has been committed by the then District Superintendent of Education. Objection raised by the Auditor gives a ground to the department to initiate a proceeding and on the basis of the said audit objection, no order can be passed. Objection raised by the Auditor gives a ground to the department to initiate a proceeding and on the basis of the said audit objection, no order can be passed. This issue had been raised in writ petition filed by Ranchi Zila Jharkhand Prathamik Bigyan Shikshak Sangh in C.W.J.C. No. 473 of 1996(R). As per the judgment passed in C.W.J.C. No. 473 of 1.996(R), it has been clarified that the vacancies following in the higher grade between the period 1.4.1981 to 31.12.1985 will be filled up in accordance with the Government Notification No. 2440 of 1984 and the 1993 Rules would come into operation after 1.1.86. Thereafter, pursuant to the order of this Hon'ble Court, the District Superintendent of Education upon the decision of the District Education Establishment Committee vide Memo No. 2318 dated 12.6.2003 notified and shifted the date of promotion of the petitioners from 1986 to 1982. In the present case, before passing the impugned order, petitioners were never noticed, thus principle of natural justice has been violated. From the discussion made hereinabove, it is evident that the impugned letter No. 4026 dated 31.12.2007 has been passed in violation of principle of natural justice and further respondents themselves had found that the promotion has been given within the sanctioned strength. The retrospective promotion is as per rule, if it has not been found that any juniors have been promoted." 6. After going through the aforesaid order it is crystal clear that the issue involved in all these writ applications has already been decided by this Court. As such, all these writ applications are hereby allowed and the respective impugned orders are hereby quashed and set-aside. Needless to say that the petitioners were never noticed before passing of the respective impugned orders and thus, the principle of natural justice was also violated. Further, the respondents themselves have found that the promotion has been given within the sanctioned strength and the retrospective promotion was as per Rule. 7. In view of the aforesaid facts, since the impugned order has already been quashed in all these writ applications, the concerned respondents are hereby directed to refund the excess amounts which were recovered from the respective petitioners of respective cases within a period of twelve weeks from the date of receipt/production of copy of this order. 8. With the aforesaid observations and directions all these writ applications are hereby allowed and disposed of. 8. With the aforesaid observations and directions all these writ applications are hereby allowed and disposed of. The pending I.As also stands disposed of.