Subhas Kumar Bose Vs. Chief Secretory - Court Judgment

SooperKanoon Citationsooperkanoon.com/110912
CourtJharkhand High Court
Decided OnAug-09-2017
AppellantSubhas Kumar Bose
RespondentChief Secretory
Excerpt:
in the high court of jharkhand at ranchi w.p.(s)no.6846 of 2012 subhas kumar bose. … ...petitioner -versus- 1. the state of jharkhand through the chief secretary, government of jharkhand at project building, p.o. & p.s. dhurwa, district-ranchi.2. commissioner, south chhotanagpur division, ranchi, p.o. ranchi, p.s. ranchi, district-ranchi.3. deputy commissioner, khunti, p.o. & p.s.-khunti, district-khunti. … ...respondents with w.p.(s)no.5878 of 2013 bali bhadra sahu. … ...petitioner -versus- 1. the state of jharkhand through the chief secretary, govt.4. of jharkhand at project building, p.o. & p.s. dhurwa, 5. district-ranchi.6. commissioner, south chhotanagpur division, ranchi, p.o.- 7. ranchi, p.s.-ranchi, district-ranchi.8. deputy commissioner, khunti, p.o. & p.s.-khunti, 9. district-khunti. … ...respondents --------- coram: the hon'ble mr. justice dr. s.n.pathak for the petitioners: mr. a.k.sahani, advocate. [in both the writ petitions] for the respondents: mr. dhananjay kumar dubey, sr. s.c.i. [in both the writ petitions] --------- 08/ 09.08.2017 the petitioners have challenged the order of recovery dated 23.08.2012 passed by the deputy commissioner, khunti whereby the benefits granted under the scheme of assured career progression and modified assured career progression to the petitioner has been cancelled in complete violation of the principle of natural justice. factual matrix 2. the petitioners were initially appointed on the post of “paid manager” in co-operative lamps and consequent upon such appointment and on 01.08.1979, the petitioner joined on that post at co-operative cadre society, ranchi. in terms of letter no.141 dated 18.01.1994 issued by the registrar, co-operative society, bihar, patna the pay scale of the petitioner was fixed up at rs.975-1540 and the same has been entered in his service book on 12.12.1994.3. it is the case of the petitioners that bihar rajya sahkari prabandhak seva sangh, bihar, patna preferred a writ application on behalf of the “paid managers” regarding adjustment/absorption/regularization in their services before the hon'ble patna high court which was registered as c.w.j.c.no.2312/1991. the said writ application was disposed of 2. directing the state government to absorb the co-operative managers against equivalent posts in any other department of the state government in terms of the decision of the government dated 06.09.1986. the respondent-state being dissatisfied with the said order of the hon'ble patna high court preferred s.l.p. before the hon'ble apex court as civil appeal no.7357 of 1996. the aforesaid civil appeal was disposed of vide order dated 20.08.1998 in terms of the petition filed on behalf of the state government of bihar and others vide resolution no.805 dated 08.03.2000, the government of bihar directed the bihar public service commission as well as the jharkhand public service commission to hold limited examination and to recommend the names of successful candidates. consequent upon the said recommendation issued by the chief secretary, ranchi, and in terms of letter no.193 dated 08.03.2003 issued by the chief secretary, ranchi government of jharkhand absorbed 26 successful candidates including the present petitioner on the post of 'jan sewak' on the pay scale of rs.4000-6000/- vide office order issued under memo no.1254 (ii) dated 08.12.2003. the petitioners joined the post of 'jan sevak' on 10.12.2003 in arki block on the pay scale of rs.4000-6000/-. the petitioners having requisite qualification for which benefits of acp was considered by the state government and the same was extended on 19.03.2010 vide anneuxre-3 taking into account the date of entry in the service book as “paid manager” since 01.08.1979 but subsequently the order granting the benefits of acp was modified vide annexure-4 to the extent that the service of the petitioners shall be counted from the date of absorption on the post of 'jan sevak' i.e. 10.12.2003 and not on 07.08.1979 the date of entry as “paid managers”. the deputy commissioner, khunti vide order dated 23.08.2012 modified the order for grant of acp and also passed order that the amount which was paid in excess due to the wrong entry of date absorption in the service will be recovered. the petitioner made representation that he has rightly been paid the amount of benefit of acp as he was entitled for the same in view of the supreme court order but the said representation was not entertained and hence this writ petition has been preferred.4. mr. a.k.sahani, learned counsel for the petitioner argues that the respondents have illegally and arbitrarily passed an order of recovery of the amount of acp which was paid to the petitioners vide annexure-3 dated 19.03.2010.3. 5. in order to buttress his argument mr. sahani submits that the said benefit was granted to the petitioner in view of the order passed by the hon'ble apex court with an observation that service of the petitioner will be counted from the date of initial appointment and not from the date of absorption in the service of 'jan sevak'.6. mr. sahani argued that even the procedures were not followed for passing an order of recovery and the principles of natural justice was given a complete go bye and as such the order of recovery is illegal and arbitrary and fit to be set aside and the amount already recovered should be refunded to the petitioners.7. per contra counter-affidavit has been filed.8. mr. dhananjay kumar dubey, learned sr. s.c.i assisted by mrs. neelam tiwari argues that there is no illegality in the order passed by the deputy commissioner vide his order dated 23.08.2012 as the services of the petitioners were absorbed on the post of 'jan sevak' on 10.12.2003 itself benefit could not have been granted from the earlier dated i.e. 07.08.1979.9. justifying the impugned order mr. dhananjay kumar dubey argues that no interference is warranted in the impugned order.10. be that as it may, having gone through the rival submissions of the parties, this court is of the considered view that order of recovery is bad in law, the benefits which have been granted to the petitioners on 19.03.2010 could not have been recovered vide order dated 23.08.2012 without adhering to any procedure even the petitioners were not given any show-cause notice or notice regarding order of recovery without adhering to the principles of natural justice . the order is not sustainable in the eyes of law. any adverse order visiting civil consequences cannot be passed without following the principles of natural justice. as regards the order of date of absorption admittedly the petitioners were absorbed in the service of 'jan sevak' on 10.12.2003 and as such any benefit of assured career progression could have been given as per terms and conditions and as such there is no illegality in counting the period from the date of absorption.11. as a cumulative effect of the aforesaid rules, orders and guidelines, i hereby direct the respondents not to recover the amount already paid to the petitioners in view of the order dated 4. 19.03.2010, if any, already recovered but regarding payment of benefits of assured career progression it will be counted from the date of absorption on the post of 'jan sevak' not from the date of initial appointment to the post of “paid manager” i.e. 07.08.1979.12. let it be made clear that if the amount has already been recovered, the same should be refunded to the petitioners.13. the writ petitions stand disposed of. [dr.s.n.pathak,j.] p.k.s.
Judgment:

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S)No.6846 of 2012 Subhas Kumar Bose. … ...Petitioner -Versus- 1. The State of Jharkhand through the Chief Secretary, Government of Jharkhand at Project Building, P.O. & P.S. Dhurwa, District-Ranchi.

2. Commissioner, South Chhotanagpur Division, Ranchi, P.O. Ranchi, P.S. Ranchi, District-Ranchi.

3. Deputy Commissioner, Khunti, P.O. & P.S.-Khunti, District-Khunti. … ...Respondents With W.P.(S)No.5878 of 2013 Bali Bhadra Sahu. … ...Petitioner -Versus- 1. The State of Jharkhand through the Chief Secretary, Govt.

4. of Jharkhand at Project Building, P.O. & P.S. Dhurwa, 5. District-Ranchi.

6. Commissioner, South Chhotanagpur Division, Ranchi, P.O.- 7. Ranchi, P.S.-Ranchi, District-Ranchi.

8. Deputy Commissioner, Khunti, P.O. & P.S.-Khunti, 9. District-Khunti. … ...Respondents --------- CORAM: THE HON'BLE MR. JUSTICE DR. S.N.PATHAK For the Petitioners: Mr. A.K.Sahani, Advocate. [In both the writ petitions] For the Respondents: Mr. Dhananjay Kumar Dubey, Sr. S.C.I. [In both the writ petitions] --------- 08/ 09.08.2017 The petitioners have challenged the order of recovery dated 23.08.2012 passed by the Deputy Commissioner, Khunti whereby the benefits granted under the scheme of Assured Career Progression and Modified Assured Career Progression to the petitioner has been cancelled in complete violation of the principle of natural justice. Factual Matrix 2. The petitioners were initially appointed on the post of “Paid Manager” in Co-operative LAMPS and consequent upon such appointment and on 01.08.1979, the petitioner joined on that post at Co-operative Cadre Society, Ranchi. In terms of letter No.141 dated 18.01.1994 issued by the Registrar, Co-operative Society, Bihar, Patna the pay scale of the petitioner was fixed up at Rs.975-1540 and the same has been entered in his Service Book on 12.12.1994.

3. It is the case of the petitioners that Bihar Rajya Sahkari Prabandhak Seva Sangh, Bihar, Patna preferred a writ application on behalf of the “Paid Managers” regarding adjustment/absorption/regularization in their services before the Hon'ble Patna High Court which was registered as C.W.J.C.No.2312/1991. The said writ application was disposed of 2. directing the State Government to absorb the Co-operative Managers against equivalent posts in any other Department of the State Government in terms of the decision of the Government dated 06.09.1986. The respondent-State being dissatisfied with the said order of the Hon'ble Patna High Court preferred S.L.P. before the Hon'ble Apex Court as Civil Appeal No.7357 of 1996. The aforesaid Civil Appeal was disposed of vide order dated 20.08.1998 in terms of the petition filed on behalf of the State Government of Bihar and others vide resolution No.805 dated 08.03.2000, the Government of Bihar directed the Bihar Public Service Commission as well as the Jharkhand Public Service Commission to hold limited examination and to recommend the names of successful candidates. Consequent upon the said recommendation issued by the Chief Secretary, Ranchi, and in terms of letter No.193 dated 08.03.2003 issued by the Chief Secretary, Ranchi Government of Jharkhand absorbed 26 successful candidates including the present petitioner on the post of 'Jan Sewak' on the pay scale of Rs.4000-6000/- vide Office order issued under Memo No.1254 (ii) dated 08.12.2003. The petitioners joined the post of 'Jan Sevak' on 10.12.2003 in Arki Block on the pay scale of Rs.4000-6000/-. The petitioners having requisite qualification for which benefits of ACP was considered by the State Government and the same was extended on 19.03.2010 vide Anneuxre-3 taking into account the date of entry in the service book as “Paid Manager” since 01.08.1979 but subsequently the order granting the benefits of ACP was modified vide Annexure-4 to the extent that the service of the petitioners shall be counted from the date of absorption on the post of 'Jan Sevak' i.e. 10.12.2003 and not on 07.08.1979 the date of entry as “Paid Managers”. The Deputy Commissioner, Khunti vide order dated 23.08.2012 modified the order for grant of ACP and also passed order that the amount which was paid in excess due to the wrong entry of date absorption in the service will be recovered. The petitioner made representation that he has rightly been paid the amount of benefit of ACP as he was entitled for the same in view of the Supreme Court order but the said representation was not entertained and hence this writ petition has been preferred.

4. Mr. A.K.Sahani, learned Counsel for the petitioner argues that the respondents have illegally and arbitrarily passed an order of recovery of the amount of ACP which was paid to the petitioners vide Annexure-3 dated 19.03.2010.

3. 5. In order to buttress his argument Mr. Sahani submits that the said benefit was granted to the petitioner in view of the order passed by the Hon'ble Apex Court with an observation that service of the petitioner will be counted from the date of initial appointment and not from the date of absorption in the service of 'Jan Sevak'.

6. Mr. Sahani argued that even the procedures were not followed for passing an order of recovery and the principles of natural justice was given a complete go bye and as such the order of recovery is illegal and arbitrary and fit to be set aside and the amount already recovered should be refunded to the petitioners.

7. Per contra counter-affidavit has been filed.

8. Mr. Dhananjay Kumar Dubey, learned Sr. S.C.I assisted by Mrs. Neelam Tiwari argues that there is no illegality in the order passed by the Deputy Commissioner vide his order dated 23.08.2012 as the services of the petitioners were absorbed on the post of 'Jan Sevak' on 10.12.2003 itself benefit could not have been granted from the earlier dated i.e. 07.08.1979.

9. Justifying the impugned order Mr. Dhananjay Kumar Dubey argues that no interference is warranted in the impugned order.

10. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that order of recovery is bad in law, the benefits which have been granted to the petitioners on 19.03.2010 could not have been recovered vide order dated 23.08.2012 without adhering to any procedure even the petitioners were not given any show-cause notice or notice regarding order of recovery without adhering to the principles of natural justice . The order is not sustainable in the eyes of law. Any adverse order visiting civil consequences cannot be passed without following the principles of natural justice. As regards the order of date of absorption admittedly the petitioners were absorbed in the service of 'Jan Sevak' on 10.12.2003 and as such any benefit of Assured Career Progression could have been given as per terms and conditions and as such there is no illegality in counting the period from the date of absorption.

11. As a cumulative effect of the aforesaid rules, orders and guidelines, I hereby direct the respondents not to recover the amount already paid to the petitioners in view of the order dated 4. 19.03.2010, if any, already recovered but regarding payment of benefits of Assured Career Progression it will be counted from the date of absorption on the post of 'Jan Sevak' not from the date of initial appointment to the post of “Paid Manager” i.e. 07.08.1979.

12. Let it be made clear that if the amount has already been recovered, the same should be refunded to the petitioners.

13. The writ petitions stand disposed of. [Dr.S.N.Pathak,J.] P.K.S.