1 IN THE HIGH COURT OF JHARKHAND AT RANCHI. W.P. (S) No. 3649 of 2003 … Ramji Singh, Son of Late Mohan Singh, resident of Vill. Baghi, P.S. Samastipur Mufassil, Distt. Samastipur, Bihar, presently resident of Mohalla-Bhubeneshwar Bagh, Dargah, P.O. & P.S. Mahendru, Distt. Patna, Bihar. … … Petitioner -V e r s u s- 1. The State of Jharkhand 2. Secretary, Water Resources Department, Jharkhand, Ranchi.
3. Chief Engineer, Design Advance Planning Hydrolic Circle, Ranchi.
4. Superintending Engineer, Design Advance Planning Hydrolic Circle, Ranchi.
5. Executive Engineer, Design Advance Planning Hydrolic Circle, Ranchi.
6. The State of Bihar through Secretary, Water Resources Department, Bihar, Patna. … Respondents … CORAM: - HON’BLE MR. JUSTICE PRAMATH PATNAIK. … For the Petitioner : - Mr. Sameer Saurabh, Advocate. For the Respondent-State of Jharkhand : - Mr. Rakesh Kumar Shahi, J.C. to A.A.G. For the Respondent-State of Bihar : - Mr. Pankaj Kumar, J.C. to Mr. S.P. Roy, (G.A., Bihar). … 09/12.12.2017 In the instant writ application, the petitioner has, inter alia, prayed for quashing the order dated 01.06.2002 and further prayer has been made for quashing the letter dated 29.06.2002, issued by the respondents pertaining to recovery of the differential amount paid to the petitioner on the basis of the wrong date of promotion and the petitioner also prays for issuance of writ of mandamus commanding upon the respondents for grant of arrears of dues including the statutory interest.
2. The brief facts, as averred in the writ application, are that the petitioner initially joined the services on 10.03.1973 on the post of the Supervisor Grade III in Work Charged Establishment and in the year 1978, the petitioner was absorbed on the post of the Junior Engineer from the date of his initial appointment i.e. since 10.03.1973 as per Annexure-3 to the writ petition. After rendering considerable length of services, the petitioner retired on 31.07.2001 from the post of the Junior Engineer from the office of the Superintending Engineer, Hydrolic Circle, Ranchi. Since the petitioner was not extended with the benefit of the Time Bound Promotion, the petitioner has approached this Court in W.P. (S) No. 1826 of 2002, which was disposed of on 29.03.2002 with a direction to the respondents to determine the issue as to whether the petitioner is entitled to any time Time Bound Promotion and also, as to why the retirement 2 benefits have not been paid in favour of the petitioner and with a further direction to pay the admitted dues, including retiral benefits, to the petitioner, within a period of four months. In pursuance to the order passed by this Court vide Annexure-5 to the writ petition, the respondent no. 6 has passed the order dated 01.06.2002, 29.06.2002 and 29.10.2002 vide Annexures-6, 7 and 8, which are under challenge in this writ application. Being aggrieved with the aforesaid orders, the petitioner has been constrained to approach this Court under Article 226 of the Constitution of India for redressal of his grievances.
3. Learned counsel for the petitioner during course of hearing has submitted that the action of the respondent no. 6 in issuing impugned orders vide Annexures-6, 7 and 8 of the writ application are without jurisdiction. After creation of the State of Jharkhand, since the petitioner has retired from the State of Jharkhand in the year 2001 and the State of Bihar is bereft of jurisdiction to pass order after retirement of the petitioner in view of the judgment rendered in the case of State of Bihar- versus-Arvind Bijay Billung & Anr. reported in 2002 (1) J.L.J.R.
697. Learned counsel for the petitioner further submits that the impugned order, so far as direction for recovery without issuance of show cause notice is not sustainable in the eyes of law. Learned counsel further submits that Annexure-3 to the writ application clearly states that the petitioner was absorbed in the Government post from the date of his initial appointment i.e. from 10.3.1973, therefore, the petitioner was entitled to the Time Bound Promotion after completion of ten year i.e. of the year 1983. Since the Time Bound Promotion has been given to the petitioner from the year 1988, it should have been ante dated to 1983.
4. Controverting the averments made in the writ application, a counter affidavit has been filed by the respondent nos. 2 to 4, wherein, it has been submitted that the petitioner has retired from the Office of the Master Planning Investigation and Hydrology Circle-I, Ranchi on 31.07.2001. He was appointed as a Junior Engineer by the Water Resources Department, Government of Bihar as per the Notification dated 27.09.1978. Before that, he was working as Supervisor, Grade-III, in Work-charged Establishment since 10.03.1973 as per letter dated 07.03.1973, issued by the Superintending Engineer, Tirhut Cancl Circle, Samastipur. He had been engaged on Muster Roll before being absorbed in Work-Charged 3 Establishment. However, he was promoted to the post of the Supervisor Grade-II as per the letter dated 22.11.1975 on the post of the Superintending Engineer, Tirhut Cancl Circle, Samastipur, but the order was cancelled by the then Chief Engineer-II, Gandak Project, Muzaffarpur through letter dated 22.6.1976 confirmed by the Superintending Engineer, Motihari through letter dated 15.07.1976. Later on, the Executive Engineer, Bagmati Division, Bagmati Nagar through his letter dated 22.03.1980 sanctioned increments by referring to the letter dated 10.03.1973, which has been superseded by the Water Resources Department, Bihar, Headquarters through letter dated 01.06.2002. The Headquarters of the Department has every right to rectify the actions of its Field Officers, whenever it comes to the notice of the Headquarters. Thereby, the Department of Water Resources, Bihar has ordered to recover the excess amount from Shri Singh due to wrong fixation of his pay since 10.03.1973. It has been confirmed by the Water Resources Department, Jharkhand too as per the letter dated 14.12.2002. The petitioner has been given first Time Bound Promotion through letter dated 29.06.2002 with reference to his date of joining as Junior Engineer i.e. 29.09.1978 as per appointment letter issued on 27.09.1978, issued from the Water Resources Department, Government of Bihar, as Junior Engineer. Hence, the actions of the Water Resources Department, Bihar/Jharkhand are quite justified, within the powers and jurisdiction and under the provisions of the Service Code.
5. Mr. Rakesh Kumar Shahi, learned J.C. to A.A.G. apartfrom reiterating the submissions made in the counter affidavit, has vociferously submitted that there is absolutely no infirmity or illegality in the impugned orders, passed by the respondents on the ground that the bona fide mistake can be rectified at any point of time. Since there has been wrong fixation of pay by wrongly misconstruing the date of initial appointment as the date of regularizing the services, therefore, the respondents are left with no option, but, to rectify the fixation of pay and the regular fixation of pay should have been on the date of regularization i.e. 1978 instead of the date of initial appointment i.e. 10.03.1973, therefore, there is absolutely no merit in the writ application and the same is liable to be dismissed in limine.
6. A counter affidavit has been filed on behalf of the respondent no. 6 4 more or less reiterating the submissions made by the respondent-State of Jharkhand.
7. Mr. Pankaj Kumar, learned J.C. to Mr. S.P. Roy, learned G.A., Bihar appearing on behalf of the Respondent-State of Bihar has submitted that the impugned orders have been passed by the State of Bihar on the clarification sought for by the State of Jharkhand vide order passed by the Deputy Secretary, State of Jharkhand, Ranchi.
8. Having heard the learned counsel for the respective parties and on perusal of the records, this Court feels inclined to interfere in the impugned orders vide Annexures 6 to 8 of the writ application on the following grounds : - Admittedly, the petitioner retired from the State of Jharkhand, on 31.07.2001 from the post of the Junior Engineer from the office of the Superintending Engineer, Hydrolic Circle, Ranchi and after bifurcation of the erstwhile State of Bihar and after creation of the State of Jharkhand. In view of the relevant provision of Sections 72 and 74 of the Bihar Re-organization Act, 2000 as has been referred to in the decision rendered in the case of State of Bihar-versus-Arvind Bijay Billung & Anr. reported in 2002 (1) J.L.J.R. 697, the State of Bihar is bereft of jurisdiction to pass any orders, so far as the employees of the State of Jharkhand is concerned on creation of the State of Jharkhand and on that score alone, the impugned orders are not sustainable in the eyes of law. On perusal of the order dated 19.03.2002, passed in W.P. (S) No. 1826 of 2002, this Court has been pleased to direct the Secretary, Water Resources Department, Government of Jharkhand to pass appropriate orders, but, as it appears that no order has been passed by the Respondent-State of Jharkhand and the impugned orders have been passed by the State of Bihar, which are not permissible in view of the aforesaid decision. Apartfrom the legal position on the jurisdiction point of view, as aforesaid the impugned orders, so far as recovery is concerned, is not sustainable in view of the fact that no notices have been issued to the petitioner, prior to issuance of the direction for recovery from the post-retirement benefits of the petitioner, which is also not sustainable in view of Section 43 (B) of the Pension Rules. So far as recovery part is concerned, the Hon'ble Apex Court in the judgment rendered 5 the case of State of Punjab And Others Vs. Rafiq Masih (white washer) And Others reported in (2015) 4 SCC334relying on various judgment including judgment rendered in the case of Chandi Prasad Uniyal And Others Vs. State of Uttarakhand And Others reported in (2012) 8 SCC417has been pleased to hold in paragraph 18 of Rafiq Masih (white washer) case (supra) 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 employer’s right to recover.”
9. In view of the reasons stated in the foregoing paragraphs and as a logical sequitor, the impugned orders dated 01.06.2002, 29.06.2002 and 29.10.2002 vide Annexures-6, 7 and 8 passed by the respondent no. 6 are not sustainable in the eyes of law. Accordingly, the same are hereby quashed and set aside.
10. The writ petition stands allowed. (Pramath Patnaik, J.) APK