Allowed

Ganesh Prasad Singh v. Forest

Jharkhand HC4 Oct 2018WPC/4848/2017

Case brief

AI extract

What is this about?

In this writ petition, the High Court of Jharkhand quashed an office order cancelling the petitioner's promotion to Personal Assistant and reverting him to Typist one day before his retirement. The Court held that denying natural justice and attempting to recover excess salary at the time of retirement was illegal and arbitrary.

What did the court decide?

Impugned orders cancelling promotion and fixing salary as Typist quashed; petitioner entitled to pension based on retirement draw and arrears.

Ganesh Prasad Singh Vs Forest — Pension and Retirement Benefits | Jharkhand HC (2018)

¶1

¶2

IN THE HIGH COURT OF JHARKHAND AT RANCHI

¶3

W.P. (S) No. 4848 OF 2017

¶4

Ganesh Prasad Singh … … Petitioner

¶5

V E R S U S

¶6

The State of Jharkhand through the Principal Secretary, Department of Forest, Environment & Climate Change, Government of Jharkhand.

¶7

The Principal Secretary, Personnel, Administrative and Raj Bhasha Department, Ranchi

¶8

The Principal Secretary, Department of Planning & Finance, Government of Jharkhand, Ranchi

¶9

The Principal Chief Conservator of Forest, Jharkhand, Ranchi

¶10

The Accountant General, Jharkhand, Ranchi

¶11

… ... Respondents

¶12

CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK

¶13

For Petitioners : Mr. Rahul Kumar, Advocate. For the State: Mr. Atanu Bannerjee, GA For the Accountant General: Mr. Suresh Kumar, Advocate

¶14

02/04.10.2018 Heard learned counsel for the parties.

¶15

Petitioner has approached this Court with a prayer for quashing the office order issued vide Memo No. IIE/ 19(A)25/2015 – 480, dated 30.01.2017, issued under the signature of Principal Chief Conservator of Forests, Jharkhand, Ranchi whereby appointment of the petitioner to the post of Steno-Typist which was upgraded and merged as Personal Assistant, has been cancelled just one day before his retirement and petitioner has been reverted back to Typist and a direction has been made to recover arrears of salary of aforesaid promoted post. Petitioner has further prayed for quashing of office order as contained in Memo No. IIE/19A(I) 25/2015 – 1202, dated 15.03.2017, issued under the signature of Principal Chief Conservator of Forests, Jharkhand whereby after reverting the petitioner, his salary has been fixed in the scale payable to typist. Petitioner has further prayed to hold and declare that petitioner had rightly and validly been appointed as Steno-Typist and said post had been upgraded and merged with the post of Personal Assistant. Petitioner has further prayed for allowing him financial upgradation by granting him 2^nd ACP and 3^rd MACP on completion of requisite length of service. Petitioner has further prayed for grant of retiral dues including arrears etc.

¶16

¶17

¶18

The case of the petitioner lies in narrow compass. In the year 1980, the then Bihar Public Service Commission conducted an examination for appointment to the post of Typist. Petitioner appeared and was declared successful. Upon recommendation of Bihar Public Service Commission, petitioner was appointed as a Typist vide Memo No. 1225, dated 12.12.1984 of the Department of Personnel & Administrative Reforms, Government of Bihar, Patna and was posted in the office of Chief Conservator of Forest, Ranchi. Petitioner duly submitted his joining to the post of Typist on 21.12.1984. Further, the then Bihar Public Service Commission conducted an examination in the year 1982 for appointment to the post of Personal Assistant and Gazette Notification to that effect was published on 26.10.1983. Petitioner was declared successful for appointment to the post of Personal Assistant and his name found place at Sl. No. 95 amongst the list of successful candidates. The Chief Conservator of Forests, Bihar, Ranchi, vide office order no. 855, dated 26.08.1985 appointed the petitioner on temporary basis to the post of StenoTypist and since then petitioner continued as such in the grade of Steno-typist (Stenographer).

¶19

It is case of the petitioner that the then Personnel & Administrative Reforms Department, Government of Bihar, vide letter dated 23.02.1987 (Annexure-4) had taken a decision to merge the cadre of Steno-typist in the cadre of Personal Assistant and has accordingly directed the different departments in the Government to send the list of Steno-typist working under them with their comments about their working efficiencies together with their service books and Annual Confidential Report that a decision of the same may be taken. The Personnel and Administrative Reforms Department of the then Government of Bihar, vide its letter dated 18.09.1990 decided that services of those Steno-typists who had been appointed up to 10.11.1988, be upgraded in the cadre of Personal Assistants and further it was reiterated that after said cut-off date, the process of appointment to the said post of Steno-Typist be stopped. Further, vide letter dated 06.09.1991, the Personnel and Administrative Reforms

¶20

¶21

¶22

Department, Government of Bihar upgraded and merged as many as 40 posts of Steno-Typists in the cadre of Personal Assistants. In pursuant thereof, the Chief Conservator of Forests, Social Forestry, Bihar, Ranchi, vide office order no. 31, dated 28.08.1987, merged and renamed the post of Stenographer as Personal Assistant and petitioner continued to the post of Personal Assistant and was accordingly allowed the pay scale of Personal Assistant. Since no formal order of merger had been issued by the competent department of the Government in relation to Steno-Typist working in the office of Principal Chief Conservator of Forests, Jharkhand, the Principal Chief Conservator of Forests, Bihar, vide letter no. 2597, dated 13.05.1994 had written to the Personnel Department, for doing the needful which was followed by another letter dated 25.08.1995. Steps were duly taken by the Forest Department but it was kept pending by the Personnel and Administrative Reforms Department. After bifurcation of the State petitioner was allocated Jharkhand Cadre and petitioner was allowed ACP benefits w.e.f. 08.09.1999.

¶23

It is further averred that upon decision of the State of Jharkhand, as contained in memo no. 6341, dated 20.11.2002, the ex-cadre posts of Secretariat Personal Assistant was merged with the cadre of Personal Assistant of the Administrative Department but no decision has been taken in the case of petitioner and others working in the office of Principal Conservator of Forests, Jharkhand, Ranchi. Various correspondences were made by the office of Principal Chief Conservator of Forests, Ranchi and suddenly, vide letter no. 5425, dated 10.10.2006, reasons for merger of cadre were sought by the Secretary, Forest Department, which was duly replied by the Additional Principal Chief Conservator of Forest vide letter dated 28.12.2006. Again vide letter dated 28.03.2007, the Principal Chief Conservator of Forest requested the Secretary, Forest Department for merger of cadre of petitioner and others with the cadre of Personal Assistant.

¶24

¶25

¶26

Petitioner is aggrieved by non-merger of the post of Stenotypist (Stenographer) to the post of Personal Assistant though he has been discharging the duties as a Personal Assistant. In spite of several communications between the Forest Department and the Personnel Department, no decision has been taken by the respondents and just one day before his retirement, the Principal Chief Conservator of Forests, Jharkhand, Ranchi, vide Order IIE/ 19(A)25/ 2015 – 30, dated 30.01.2017, cancelled appointment (so called promotion granted to the petitioner) to the post of StenoTypist (Stenographer) and Personal Assistant and further petitioner has been reverted to the post of Typist and further direction has been made to recover excess paid salary. After decision of reversion, the Principal Chief Conservator of Forest, vide office order dated 30.01.2017, issued show-cause notice to the petitioner in relation to his reversion to the post of Typist. Since impugned order has been passed without giving reasonable opportunity of hearing to the petitioner and without considering that laches, if any, was on the part of the respondents themselves in taking decision in merger of cadre, the petitioner has knocked door of this Court.

¶27

Mr. Rahul Kumar, learned counsel for the petitioner submits that the Personnel and Administrative Reforms Department of the then Government of Bihar, vide its letter dated 18.09.1990 decided that services of those Steno-typists who had been appointed up to 10.11.1988, be upgraded in the cadre of Personal Assistants and petitioner’s case is fully covered by the said letter. Since petitioner was appointed to the post of Stenotypist on 26.08.1985, much before the cut-off date of 10.11.1988, as such the respondents cannot be allowed to revert the petitioner. Learned counsel submits that though no formal order of merger had been issued by the competent department of the Government in relation to Steno-Typist working in the office of Principal Chief Conservator of Forests, Jharkhand but the Principal Chief Conservator of Forests, Bihar, vide letter no. 2597, dated 13.05.1994 had written to the Personnel Department, for doing the needful which was followed by another letter dated

¶28

¶29

¶30

25.08.1995. Learned counsel submits that though steps were duly taken by the Forest Department but it was kept pending by the Personnel and Administrative Reforms Department. Learned counsel submits that order of reversion has been passed in gross violation of the principles of natural justice and on the strength of direction and objection issued by the Finance Department, copies whereof has never been served to the petitioner. Learned counsel submits that no show-cause has ever been served by the employer or by the Finance Department and illegally and arbitrarily petitioner has been reverted to the post of Typist. Learned counsel further submits that the action of the respondents seeking post facto show cause cannot justify their stand in taking a decision wherein after working for 30 long years, petitioner can be reverted to a lower grade. Learned counsel submits that impugned action has been taken by the respondents hastily in order to harass the petitioner without following the due process of law just a day before retirement of the petitioner. Learned counsel submits that petitioner is at no fault nor this is a case wherein an employee has taken any undue benefits, it is delay and laches on part of the respondents in taking decision in merger of cadre. Petitioner cannot be harassed at the last day of his service when he had unblemished service career throughout and the petitioner has served the department for more than 30 long years of service. Learned counsel further submits that considering merits of the case, vide order dated 13.11.2017 already direction has been issued and operation/ execution/ implementation of impugned order dated 30.01.2017 has been stayed. Learned counsel has placed reliance on the Judgment rendered by the Hon’ble Apex Court in the case of

¶31

State of Punjab & Others Vs. Rafiq Masih (White Washer) & Others reported in (2015)4 SCC 334, and submits that the State cannot be allowed to recover the amounts already paid to the petitioner.

¶32

Per contra counter affidavit has been filed by the respondents.

¶33

¶34

¶35

Mr. Atanu Bannerjee, learned GA submits that the formal order of merger of post was never issued by the competent department of the Government in relation to Steno-Typist working in the office of Principal Chief Conservator of Forests, Jharkhand. Learned counsel submits that though case of the petitioner was recommended for the post of Personal Assistant by the then Government of Bihar on the basis of results published by Bihar Public Service Commission, but he was never appointed as a Personal Assistant. Petitioner was actually appointed as a Typist and erroneously given appointment to the post of Stenotypist in the enhanced pay scale but later on when it came to the knowledge of respondents, he has been reverted to his original post of Typist. However, the Chief Conservator of Forest, Bihar again appointed petitioner as Steno-typist vide office order no. 855, dated 26.08.1985, but the same was illegal. Learned GA submits that so far as merger of decision of Government of Bihar to induct steno-typist into the cadre of Personal Assistant is concerned, name of petitioner was never recommended for the same which shows that there was no steno-typist in the Department. Learned GA submits that though the nomenclature of Stenographer Category-I was changed as Personal Assistant vide Resolution no. 3374, dated 03.08.1987 but as the petitioner was illegally continuing with the designation of steno-typist, he cannot claim the post of Personal Assistant. Learned GA submits that the case of the petitioner was duly considered and thereafter he has been reverted to his original post as illegality cannot be allowed to be perpetuated. Learned GA submits that already the Secretary, Forest and Environment, vide letter dated 23.06.2005 has directed the PCCF, Jharkhand to cancel appointment of petitioner to the post of Personal Assistant. Further, vide letter no. 1202, dated 07.03.2007, the State of Jharkhand took a decision to cancel promotion of the petitioner and others and further to recover irregularly paid excess amount to them. Again the Government of Jharkhand, Department of Forest, vide letter no. 1513, dated 11.04.2012, reminded and directed the PCCF, Jharkhand to cancel promotion of petitioner to the post of

¶36

¶37

¶38

Personal Assistant and recover irregularly paid excess amount. Similar direction was passed by the Finance Department and in light thereof, the Principal Secretary, Department of Forest, vide letter no. 151, dated 13.01.2015, and letter no. 1837, dated 06.04.2015, reminded the PCCF, Jharkhand to cancel the said promotion and recover excess amount paid to the petitioner. Again the Principal Secretary, Department of Forest, Environment and Climate Change, Jharkhand, vide letter no. 3766, dated 04.08.2016, directed the PCCF Jharkhand to revoke promotion of the petitioner and recover excess amount paid to him. Learned GA submits that after entire exercise and chain of events, the PCCF, Jharkhand, vide Officer Order No. 30, dated 30.01.2017, reverted the petitioner to the post of Typist. Learned GA further submits that petitioner himself has accepted in his reply to showcause that he had knowledge regarding his case being under consideration of Department of Personnel and Administrative Reforms and as such, the claim of the petitioner that no notice was served to him is not sustainable. Learned GA submits that when the concerned party clearly knows the case against him, the requirement of notice would not be insisted upon. Learned GA has relied upon the decision of the Hon’ble Apex Court passed in the case of Keshav Mills Company. Vs. Union of India reported in AIR 1973 SC 389 as also in the case of Maharashtra State

¶39

Financial Corporation Vs. Suvarna Board Mill reported in (1994) 5 SCC 566 . Learned GA further submits that reversion to original post was not a penalty but just a correction of irregular appointment and payment of salary and as such, there was no requirement of any show-cause before reverting the petitioner to original post.

¶40

Mr. Suresh Kumar, learned counsel appearing on behalf of the respondents – Accountant General submits that Office of the Accountant General has no role to play.

¶41

Be that as it may, having gone through fair submission of the parties, this Court is of the considered opinion that impugned action has been taken after 30 years of long and continuous service of the petitioner and that too just a day before his

¶42

¶43

¶44

retirement without following principles of natural justice, which is absolutely illegal and arbitrary and as such the same is not sustainable in the eyes of law. It is settled principles of law that no order visiting with civil consequences can be withdrawn/ cancelled without following the principles of natural justice. The Hon’ble Full Bench of this Court in the case of Normi Topno Vs. State of Jharkhand reported in 2007(4) JLJR 466 has clearly held that any promotion which continued for more than 20 long years, cannot be abruptly withdrawn/ cancelled without following the principles of natural justice and as such any order causing prejudice to a person cannot be passed without giving any opportunity of hearing. In the instant case the same has not been done which is clear violation of principle of natural justice and the order of cancellation/ withdrawal is null and void in the eyes of law.

¶45

In the case of State of Punjab & Others Vs. Rafiq Masih (White Washer) & Others reported in (20150 4 SCC 334, the recoveries in following circumstances has been declared impermissible in law:

¶46

(i) Recovery from the employees belonging to Class-III and ClassIV service (or Group C and Group D service);

¶47

(ii) Recovery from the retired employees or the employees who are due to retire within one year of the order of recovery;

¶48

(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;

¶49

(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;

¶50

(v) In any other cases, where the court arrives at the conclusion, that recovery if made from the employees, 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.

¶51

As a cumulative effect of the aforesaid facts and circumstances, guidelines, judicial pronouncements this Court is

¶52

¶53

¶54

of the view that impugned office order issued vide Memo No. IIE/ 19(A)25/2015 – 480, dated 30.01.2017 as well as office order as contained in Memo No. IIE/19A(I) 25/2015 – 1202, dated 15.03.2017, both issued under the signature of Principal Chief Conservator of Forests, Jharkhand are not sustainable as case of the petitioner falls within the ambit of circumstances mentioned hereinabove in the case of State of Punjab & Others Vs. Rafiq Masih & others and as such the same are quashed and set aside. Resultantly, the writ petitioner is entitled for all consequential benefits and for fixation of pension in the last pay drawn by him at the time of his retirement, in accordance with law. Petitioner is further entitled for the financial upgradation by granting him 2^nd ACP and 3^rd MACP on completion of requisite length of service and fulfilling other required terms and conditions, if there is no other legal impediments. Needless to say, if any amount has been recovered pursuant to impugned order, the same must be refunded to the petitioner within a period of eight weeks from the date of receipt/ production of a copy of this order.

¶55

With the aforesaid observations and directions, this writ petition stands allowed.

¶56

(Dr. S.N. Pathak, J.)

¶57

Ganesh Prasad Singh v. Forest

Case brief

What is this about?

What did the court decide?

Ganesh Prasad Singh v. Forest

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Shambhu Nath Munda And Ors. Vs Education

Om Prakash And Ors. Vs Forest

Dr Birendra Kumar Vs Human Resources Department

Nutan Kumari And Ors. Vs Education

Nagendra Kumar Tiwary Vs Education

Ramapati Pandey And Ors. Vs Education