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2021 DIGILAW 622 (JHR)

Arjun Prasad Singh v. State of Jharkhand

2021-08-12

DEEPAK ROSHAN

body2021
JUDGMENT : Heard learned counsel for the parties through V.C. 2. The instant writ application has been preferred by the petitioner praying therein for quashing and setting aside the order as contained in Memo No.2677 dated 18.05.2010 whereby the respondent No.3 has cancelled the Assured Career Progression (ACP) benefits already given to this petitioner. The petitioner has also assailed the order as contained in Memo No. 3034(s)WE dated 3.6.2010 whereby the ACP benefits already given to this petitioner were directed to be recovered. 3. Learned counsel for the petitioner draws attention of this Court towards the impugned order dated 18.05.2010 (Annexure-6) and submits that a completely non-speaking order has been passed by the concerned respondent and simply in two lines it has been held that since the petitioner has not passed any departmental examination as such he is not entitled for ACP benefits. Learned counsel further draws attention of this Court towards Annexure-3 which is the letter of Personnel and Administrative Reforms Department dated 15.05.1992 which indicates that if a person crossed 50 years of age and there is no examination in past five years then he would be exempted from the examination and as such the petitioner is duly entitled for ACP benefit. Learned counsel further draws attention towards the order dated 03.06.2010 (Annexure-7) and submits that this has been issued for recovery of amount which was paid to this petitioner as second ACP and which was subsequently cancelled pursuant to Annexure-6. Learned counsel contended that this order has been issued without issuing any show-cause notice and further in getting the benefit of ACP there was no fraud committed by this petitioner as such the amount should not be recovered from the petitioner. Learned counsel lastly submits that any recovery after retirement is hit by the provisions of Bihar Pension Rules and even otherwise, this impugned order dated 03.06.2010 has not been issued after following the principle of natural justice as such the same shall be quashed and set aside. 4. Mr. Tarun Mahto, learned counsel for the respondent-State tries to defend the impugned order and submits that since the petitioner has not passed the departmental examination as such he was not entitled for ACP benefits. 4. Mr. Tarun Mahto, learned counsel for the respondent-State tries to defend the impugned order and submits that since the petitioner has not passed the departmental examination as such he was not entitled for ACP benefits. He further relied upon the notification wherein it has been stated that the employees will be exempted from the departmental examination if they have crossed 50 years of age provided there is no examination in the preceding five years. He further submits that the petitioner never tried to pass the departmental examination even once during his active service period; though the departmental examination was regularly conducted. However, Mr. Mahto could not bring on record any document to show that before the order for recovery any show-cause notice has been issued to the petitioner. He is also not in a position to produce any document to show that the petitioner was involved fraudulently in getting the ACP benefits. 5. Having heard learned counsel for the parties and after going through the averments made in the respective affidavits and the documents annexed therein, it appears that the petitioner retired on 30.06.2004 from the post of Assistant Engineer. After his superannuation, 2nd financial benefit under the ACP scheme was provisionally granted to him vide office order contained in Memo No.2043 (S) dated 24.05.2006. The above 2nd financial benefit under ACP Scheme was granted to him in the pay scale of Rs.10000-15200, which was the pay scale of the Executive Engineer that is the next higher promotional post of the Assistant Engineer. As per rule 3(vii) of the resolution No.5207 dated 14.08.2002 of the Finance Department; for financial up gradation under the ACP Scheme, the eligibility for such financial up gradation is the same as necessary for the regular promotion. In course of review of the petitioner’s case, it was found that petitioner has not passed the departmental examination. Passing of the departmental examination is one of necessary requisite for promotion from Assistant Engineer to Executive Engineer; thus it was pointed out by the Finance Department that the 2nd financial benefit given to the petitioner was contrary to the rules laid for the same. In view of the aforesaid fact since the petitioner did not passed the departmental examination though it was conducted regularly; the 2nd financial benefit granted to the petitioner under the ACP Scheme was contrary to the rule as laid down for the same. In view of the aforesaid fact since the petitioner did not passed the departmental examination though it was conducted regularly; the 2nd financial benefit granted to the petitioner under the ACP Scheme was contrary to the rule as laid down for the same. Therefore, the same has rightly been cancelled vide order contained in memo No.2677(S) dated 18.05.2010. 6. In the case Union of India and Another Vs. Narendra Singh reported in (2008) 2 SCC 750 , the Hon’ble Apex Court has held that the department is entitled to correct a mistake which has been committed by it earlier. Paragraph 32 of the Judgment is cited herein below:- “32. It is true that the mistake was of the Department and the respondent was promoted though he was not eligible and qualified. But, we cannot countenance the submission of the respondent that the mistake cannot be corrected. Mistakes are mistakes and they can always be corrected by following due process of law. In ICAR V. T. K. Suryanarayan it was held that if erroneous promotion is given by wrongly interpreting the rules, the employer cannot be prevented from applying the rules rightly and in correcting the mistake. It may cause hardship to the employees but a court of law cannot ignore statutory rules.” 7. It is true that the department is entitled to correct a mistake which has been committed by it earlier but in no case the department is entitled to recover the amount already paid to its employee on any ground. Now the matter is no more res-integra, inasmuch as, if there is no misrepresentation or fraud committed by the delinquent employee in procuring any monetary benefit with regard to the promotion or ACP; the amount already paid to them cannot be recovered. As such the impugned order dated 3.6.2010 is not sustainable in the eye of law. In the case of State of Punjab & Ors Vs. Rafique Masih(White Washer) & Ors. reported in (2015) 4 SCC 334 wherein the Hon’ble Apex Court has given a guideline and circumstances when the recovery can be made. 8. In view of the aforesaid findings and the judicial pronouncements; the instant writ application is partly allowed and the impugned order as contained in Memo No. 3034(s)WE dated 3.6.2010 by which the order of recovery of ACP benefit has been passed, is hereby, quashed and set aside. 9. 8. In view of the aforesaid findings and the judicial pronouncements; the instant writ application is partly allowed and the impugned order as contained in Memo No. 3034(s)WE dated 3.6.2010 by which the order of recovery of ACP benefit has been passed, is hereby, quashed and set aside. 9. From the order sheet it appears that the order of recovery as contained in Memo No.3034 (S)WE dated 3.6.2010 was stayed vide order dated 02.11.2010 by this Court; as such the aforesaid stay order is made absolute. The Respondents shall not recover any amount from the petitioner which was already paid to him. 10. With the aforesaid terms, the instant writ application stands disposed of.