JUDGMENT : I.A. No. 5871 of 2021 1. This interlocutory application has been preferred under Section 5 of the Limitation Act for condoning the delay of 476 days in preferring this Letters Patent Appeal. 2. Heard learned counsel for the appellants. 3. Having regard to the averments made in the application and submissions made on behalf of the appellants, we are of the view that the appellants were prevented from sufficient cause in filing the appeal within the period of limitation. As such, the delay of 476 days in preferring the appeal is hereby condoned. 4. I.A. No. 5871 of 2021 stands allowed. L.P.A. No.773 of 2018 5. The instant intra-court appeal, preferred by the State of Jharkhand under Clause 10 of the Letters Patent, is directed against the order/judgment dated 25.07.2018 passed by learned Single Judge of this Court in W.P.(S) No.3481 of 2011 whereby and whereunder, while allowing the writ petition, the order as contained in letter dated 05.12.2014, issued by the Director, Higher Education wherein the University has been directed to send a proposal of pay-fixation of the petitioner in the pay-scale of Reader in the 6th UGC pay-scale and not against the post of University Professor, as is being claimed by the petitioner as also for payment of family pension in the last pay-scale drawn by the original petitioner i.e. late husband of the petitioner, namely, Dr. Dhaneshwar Jha in revised pay-scale, has been quashed and set aside with a direction upon the respondent University to pay the entire benefits accrued to the petitioner by way of family pension and to fix the pension/family pension of the petitioner under revised pay-scale. If the amount has already been recovered, the same has been directed to be refunded to the petitioner. The respondent-University has also been directed to pay the legally due amount to the petitioner with interest @ 5% per month within three months from the date of receipt/ production of a copy of the order, failing which respondents will be liable to pay penal interest @ 10% apart from statutory interest and additional cost of Rs.5,000/-in favour of the petitioner. 6. 6. Brief facts of the case as per the pleadings made in the writ proceeding, which are required to be enumerated herein, read as under :- The original writ petitioner joined the service on 31.03.1975 as a Lecturer of Chemistry in S.P. College, Dumka on the basis of recommendation made by the University Service Commission, Patna, Bihar vide notification dated 14.02.1981. The original writ petitioner was promoted to the post of Reader on 31.03.1985 on completion of 10 years of service and the same was duly approved by the Bihar State Service Commission, Patna, Bihar. It is the case of the original writ petitioner that the promotion of the petitioner was due since 31.03.1991 to the post of University Professor from the post of Reader and vide notification dated 09.12.2006, the respondent-University had recommended the name of the original writ petitioner for abovementioned promotion with retrospective effect i.e., 31.03.1991 to the Jharkhand Public Service Commission, Ranchi. Subsequently, on 18.12.2007, a letter was issued by the Secretary, Jharkhand Public Service Commission by which the services of the original writ petitioner as University Professor was approved subject to fulfillment of certain criteria laid down by the Jharkhand Public Service Commission. However, when the salary of the original writ petitioner and others was not fixed they submitted representation before the Principal Secretary, Human Resources Development Department for consideration of their cases and upon which, the Principal Secretary vide its letter dated 22.11.2008 directed the Secretary to take appropriate decision with regard to the representation of the original writ petitioner for fixation of salary on the post of Professor after obtaining opinion of the Advocate General on the matter. Thereafter, a letter dated 16.09.2009 was issued by the respondent-University addressed to the Director, Higher Education, Government of Jharkhand for fixation of salary of the original writ petitioner to the post of Professor. The respondent-University also forwarded the representation of the original writ petitioner, late Dr. Dhaneshwar Jha dated 03.10.2009. It is the further case of the petitioner before writ court that on 22.12.2009 a notification was issued by the respondent-University stating therein that, the Vice Chancellor has been pleased to withdraw the promotion of the readers whose names appears in the said notification to the post of University Professor under 16 years continuous service scheme as their cases do not conform with the conditions laid down by the JPSC, Ranchi. Subsequently, the petitioner retired from his service on 28.02.2010, on attaining the age of superannuation. A letter was issued on 28.10.2010 by the Human Resource Department, whereby the pay-scale of the original writ petitioner was fixed in the UGC Pay-scale of Rs.16,400-22,400/- with effect from 01.01.1996. It is the further case of the original writ petitioner that on the representation dated 14.04.2011 filed by the petitioner, it has been stated by the Director, Human Resources Department vide his letter dated 07.06.2011 that the pay-scale of the original writ petitioner to the post of Professor has already been fixed vide letter dated 28.10.2010 and directed the respondent-University to make payment of all the legally payable dues of the original writ petitioner. However, when the respondent-University has not turned-up for making legally admissible due of the original writ petitioner, the petitioner had no option but to invoke the jurisdiction of this Court by filing writ petition under Article 226 of the Constitution of India taking the ground that the respondent-authorities have no right to recall the promotion already granted in favour of the original writ petitioner to the post of University Professor at this belated stage that too after retirement of the husband of the original writ petitioner as also after his death. The further point was taken that the part of the letter dated 18.12.2007 is bad in law, as the same has been held to be an extra qualification and the date of registration of the scholar for Ph.D. was to be counted for promotion to the post of University Professor. The action of the respondent-JPSC in not removing/eliminating the rider of “obtaining the Ph.D. degree by a scholar prior to 22.09.1995”, while granting promotion to the petitioner is wholly illegal, arbitrary and unjust as well as bad in law. While on the other hand, the respondent State of Jharkhand as well as University has vehemently opposed the contention advanced on behalf of the writ petitioner by taking the ground that the husband of the writ petitioner was given promotion from the post of Reader to the post of University Professor provisionally on temporary basis subject to the recommendation of the Jharkhand Public Service Commission vide notification dated 09.12.2006. It was the further ground that the Jharkhand Public Service Commission through its letter dated 18.12.2007 has given a conditional recommendation for promotion of the original writ petitioner to the post of University Professor with a rider that he completes 16 years of continuous service before 22.09.1995 and a scholar has obtained Ph.D. prior to 22.09.1995 under his guidance. The name of Late Dr. Dhaneshwar Jha appears at Sl. No. 1 of the aforesaid letter dated 18.12.2007. Therefore, in view of the aforesaid conditional recommendation by the JPSC through its letter dated 18.12.2007, the matter relating to the promotion of Late Dr. Dhaneshwar Jha was examined by the University in the light of direction of the JPSC along with other similarly situated teachers and thereafter, the provisional promotion granted to Late Dr. Dhaneshwar Jha along with some other teachers was withdrawn vide notification dated 22.12.2009 and, therefore, there is no infirmity in the aforesaid order. The learned Single Judge, after considering the rival submission advanced on behalf of the parties, has quashed and set aside the decision of the administrative authority as contained in letter dated 05.12.2014, issued by the Director, Higher Education by which direction was issued upon the University to send a proposal of pay-fixation of the original writ petitioner in the pay-scale of Reader in the 6th UGC pay-scale and not against the post of University Professor as is being claimed by the petitioner. The respondent-University has further been directed to pay the entire benefit accrued to the petitioner by way of family pension. The University has also been directed to fix the pension/ family pension of the writ petitioner under revised pay-scale. If the amount has already been recovered, the same has been directed to be refunded in favour of the writ petitioner. The petitioner has been held entitled for pension on the basis of last pay drawn by the original writ petitioner, her deceased husband. Further, the respondent-University has also been directed to pay the legally due amount to the petitioner with interest @ 5% per month within three months from the date of receipt/ production of a copy of the order, failing which the respondents will be liable to pay penal interest @ 10% apart from statutory interest and additional cost of Rs.5,000/-in favour of the petitioner. The aforesaid order is under challenge in the instant intra-court appeal. 7. Mr. The aforesaid order is under challenge in the instant intra-court appeal. 7. Mr. Sachin Kumar, learned A.A.G.-II, appearing for the appellant-State of Jharkhand, has submitted that the order passed by the learned Single Judge suffers from infirmity, reason being that the original writ petitioner, even though was not entitled to get promotion from the post of Reader to the post of Professor, but he has been granted such promotion provisionally subject to fulfilment of certain conditions. The fact about non-fulfilment of the condition when came to the notice of the authority concerned, the decision has been taken to revert the original writ petitioner from the post of Professor to the post of Reader by passing the impugned decision as contained in letter dated 05.12.2014, basis upon which direction was issued upon the University to refix the pay of the original writ petitioner and accordingly, also directed to disburse the family pension and other consequential benefits on the basis of pay fixation based upon the pay scale attached to the post of Reader. The submission has been made that since the original writ petitioner was not eligible to hold the post, therefore, if such decision has been taken by the authority concerned as contained in letter dated 05.12.2014, it cannot be said to suffer from infirmity but, the learned Single Judge, without appreciating the said aspect of the matter, has quashed the order as contained in letter dated 05.12.2014. Therefore, the order impugned cannot be said to be justified decision and hence, the same is fit to be quashed and set aside. 8. None appears for the respondent-writ petitioner. 9. We have heard the learned counsel for the appellants, perused the documents available on record as also considered the finding recorded by the learned Single Judge in the impugned order. 10. This Court, before entering into the legality and propriety of the impugned order, deems it fit and proper to refer certain admitted fact which has got bearing for proper adjudication of this lis, i.e. :- The original writ petitioner, namely, Dr. Dhaneshwar Jha was appointed as joined as Lecturer of Chemistry on 31.03.1975 in S.P. College, Dumka on the basis of recommendation made by the University Service Commission, Patna, Bihar vide notification dated 14.02.1981. Dhaneshwar Jha was appointed as joined as Lecturer of Chemistry on 31.03.1975 in S.P. College, Dumka on the basis of recommendation made by the University Service Commission, Patna, Bihar vide notification dated 14.02.1981. The original writ petitioner, thereafter, was promoted to the post of Reader on 31.03.1985, i.e., on completion of 10 years of service which was also approved by the Bihar State Service Commission, Patna, Bihar. The claim of the original writ petitioner was that even though the promotion of the petitioner was due since 31.03.1991 to the post of University Professor from the post of Reader, taking into consideration the aforesaid aspect of the matter, the University had recommended the name of the original writ petitioner to the Jharkhand Public Service Commission, Ranchi for promotion to the post of Professor vide notification dated 09.12.2006 to be granted with effect from 31.03.1991. Subsequently, a letter was issued on 18.12.2007by the Secretary, Jharkhand Public Service Commission by which the services of the original writ petitioner as University Professor was approved subject to fulfillment of certain criteria laid down by the Jharkhand Public Service Commission. However, when the salary of the original writ petitioner and others was not fixed, they ventilated their grievance by filing representation before the Principal Secretary, Human Resources Development Department for consideration of their cases and upon which, the Principal Secretary vide its letter dated 22.11.2008 directed the Secretary to take appropriate decision with regard to the representation of the writ petitioner for fixation of salary on the post of Professor after obtaining opinion of the Advocate General on the matter. Thereafter, a letter was issued on 16.09.2009 by the respondent-University addressed to the Director, Higher Education, Government of Jharkhand for fixation of salary of the original writ petitioner to the post of Professor. But, the writ petitioner was informed about a notification dated 22.12.2009 issued by the University concerned stating that the Vice Chancellor has been pleased to withdraw the promotion of the readers whose names appear in the said notification to the post of University Professor under 16 years continuous service scheme as their cases do not conform with the conditions laid down by the JPSC, Ranchi. Subsequently, the original writ petitioner retired from his service on 28.02.2010, on attaining the age of superannuation and thereafter he died. Subsequently, the original writ petitioner retired from his service on 28.02.2010, on attaining the age of superannuation and thereafter he died. The present petitioner has been substituted since the original writ petitioner i.e., here the deceased husband, namely, late Dr. Dhaneshwar Jha, had died in course of pendency of the writ petition. The writ petitioner, being aggrieved with the decision of the University approached this Court by filing writ petition being W.P.(S) No.3481 of 2011 which was decided in favour of the writ petitioner by quashing the order impugned contained in letter dated 05.12.2014, with the following directions :- (i) The respondent-University has been directed to pay the entire benefit accrued to the petitioner by way of family pension. The University has also been directed to fix the pension/ family pension of the writ petitioner under revised pay-scale. (ii) If the amount has already been recovered, the same has been directed to be refunded in favour of the writ petitioner. (iii) The petitioner has been held entitled for pension on the basis of last pay drawn by the original writ petitioner, her deceased husband. (iv) The respondent-University has also been directed to pay the legally due amount to the petitioner with interest @ 5% per month within three months from the date of receipt/ production of a copy of the order, failing which the respondents will be liable to pay penal interest @ 10% apart from statutory interest and additional cost of Rs.5,000/-in favour of the petitioner. 11. It appears from the impugned order that the writ petitioner has taken the ground so far as recovery part is concerned, that no such recovery can be made from an employee after retirement without following the procedure of law. The learned Single Judge has come to a conclusive finding about the order of recovery having been passed against the legal representative of the original writ petitioner, i.e., from the widow of Late Dhaneshwar Jha, that too without adhering to the provisions of law. The learned Single Judge has come to conclusion that when the original writ petitioner has died, it was not open for the respondents to raise the issue regarding legality and propriety of the promotion. The learned Single Judge has come to conclusion that when the original writ petitioner has died, it was not open for the respondents to raise the issue regarding legality and propriety of the promotion. The original writ petitioner, i.e., the deceased husband of the present petitioner, was given promotion long back by the competent authority and he has got the benefit of promotion and there was no misrepresentation or suppressions of facts. The order/notification of the Jharkhand Public Service Commission, which becomes a basis of recovery and fixation of pay scale was never served to the original writ petitioner prior to his death. Not a chit of paper has been brought on record to show that the petitioner was informed regarding notification of University with respect to alteration or change in the pay scale. The learned Single Judge has further observed before coming to such conclusion that it is one thing to say that original writ petitioner was not entitled for promotion to the post of Professor and he did not fulfil the requisite qualification but the original writ petitioner was considered, recommended and approved for promotion to the post of Professor and was getting the benefit which is not in dispute and rather it is admitted by the respondents. The learned Single Judge has relied upon the judgment rendered by the Hon'ble Apex Court in N.D.P. Namboodripad (Dead) By Lrs. v. Union Of India & Ors, [ (2007) 4 SCC 502 ] wherein it has been laid down that if any excess payment has been made to the deceased appellant, it shall not, however, be recovered from the legal representatives of the deceased appellant. So far as the aforesaid finding is concerned, we find no reason to disagree with the same for the reason that the original writ petitioner was promoted to the post of Professor from the post of Reader, thereafter, his promotion was approved by the Jharkhand Public Service Commission although, subject to certain conditions. But the question arises that when the original writ petitioner was not having requisite qualification, why such promotion was granted? No reason has been explained in the counter affidavit by the respondent State of Jharkhand before the learned Single Judge as also in this memo of appeal. But the question arises that when the original writ petitioner was not having requisite qualification, why such promotion was granted? No reason has been explained in the counter affidavit by the respondent State of Jharkhand before the learned Single Judge as also in this memo of appeal. There is no dispute that the promotion cannot be claimed as a matter of right but the question is that when the original writ petitioner was not entitled depending upon the condition stipulated by the Jharkhand Public Service Commission, why such promotion was granted and once it was approved by the Jharkhand Public Service Commission, there was no occasion to recall it without following the principle of natural justice. Admittedly, before recall of the order of promotion, principle of natural justice was not followed while the original writ petitioner was in service, since he retired on 28.02.2010 as also not during his life time since he died on 26.03.2013. The further question will arise that as to whether the Jharkhand Public Service Commission can be said to be an authority to make out a rule. However, such point was not one of the issues before the learned Single Judge but the question which came to the mind of this Court is whether Public Service Commission can be said to be a law making authority and whether any condition can be stipulated by the Commission, the answer of this Court is that no such power can be exercised by the Public Service Commission reason being that the Public Service Commission, being a constitutional body constituted under Article 315 of the Constitution of India, for the purpose of conducting examination on the basis of the Rule framed by the rule making authority, here the Personnel, Administrative Reform and Rajbhasha Department of the State of Jharkhand. It is not the case of the State that the Personnel, Administrative Reforms and Rajbhasha Department has ever made any Rule for granting promotion from the post of Reader to the post of Professor, subject to continuous service of 16 years, rather, specific case of the State of Jharkhand is that it is Jharkhand Public Service Commission which has formulated such Rule. Further question arises that when the Jharkhand Public Service Commission has formulated such condition, then why such promotion was granted and thereafter approved. Further question arises that when the Jharkhand Public Service Commission has formulated such condition, then why such promotion was granted and thereafter approved. The original writ petitioner since was granted promotion to the post of Professor and thereafter he claimed salary attached to the post of Professor, but when such salary was not paid, due representation was filed and in response thereto, the impugned decision has been passed by the concerned authority. 12. This Court, therefore, is of the considered view that the decision of the authority suffers from patent illegality for the following reasons :- (i) The decision of granting promotion in favour of the original writ petitioner from the post of Reader to the post of Professor has already been given effect to and, as such, before its recall, it was incumbent upon the concerned authority to follow the principle of natural justice. But no such notice was issued during the service period of the original writ petitioner as also during his lifetime. Therefore, the impugned decision is bad in the eyes of law due to want of observance of principle of natural justice. (ii) The Jharkhand Public Service Commission has taken the ground of not having continuous service of 16 years which is required to hold the post of Professor but from where such power has been exercised by the Jharkhand Public Service Commission when it has got no power to make such Rule. The State Government has not come out with any plea that such Rule has been notified by the competent department of the State of Jharkhand. Therefore, raising such ground by the Jharkhand Public Service Commission is nothing but without any basis and without any conferment of power and, as such, on this ground also the impugned decision is bad in the eyes of law, since the State authority has acted on the basis of the opinion of the Jharkhand Public Service Commission regarding non-fulfilment of the aforesaid eligibility criteria. (iii) So far as the issue of recovery is concerned, the learned Single Judge after taking into consideration the judgment rendered by the Hon'ble Apex Court in N.D.P. Namboodripad (Dead) By Lrs. (iii) So far as the issue of recovery is concerned, the learned Single Judge after taking into consideration the judgment rendered by the Hon'ble Apex Court in N.D.P. Namboodripad (Dead) By Lrs. v. Union Of India & Ors, (Supra) wherein it has been laid down that there cannot be any recovery from the legal representative, and in the given facts of this case, the order of recovery has been passed against the writ petitioner who has been substituted after death of the original writ petitioner, and, therefore, if the learned Single Judge, on applying the principle laid down by the Hon'ble Apex Court in N.D.P. Namboodripad (Dead) By Lrs. v. Union Of India & Ors, (Supra), has come to the conclusion about illegality in passing the order of recovery, the same cannot be said to suffer from any error. (iv) It is the State Government which has recommended to the Jharkhand Public Service Commission for promotion and thereafter the recommendation of the State Government has been acted upon by granting the original writ petitioner promotion from the post of Reader to the post of Professor as also the same was approved, however, subject to certain conditions, then the question arises that when the original writ petitioner was not having the eligibility criteria, then why such promotion was granted and approved by the Jharkhand Public Service Commission. There is no dispute about the fact that if illegality has been committed in granting promotion, the same can be rectified but this principle depends upon the facts involved in each and every case. In the instant case, such action, had it been taken in course of lifetime of the original writ petitioner, the matter would had been different, but the concerned authority had sat idle after allowing the original writ petitioner to act as Professor in view of the promotion granted to such post and after his death, such action has been taken which cannot be said to be justified. The learned Single Judge, after taking into consideration the facts in entirety, has interfered with the impugned order, which according to our considered view, cannot be said to suffer from any error. 13. Accordingly, the instant appeal fails and is dismissed. 14. Consequently, I.A. No. 11531 of 2018 also stands disposed of.