Umeshwar Prasad Singh Vs Drinking Water and Sanitation

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(S). No. 355 of 2014

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Umeshwar Prasad Singh ………. Petitioner Versus

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1. The State of Jharkhand 2. Upper Mukhya Sachiv, Department of Drinking Water & Sanitation, Govt. of Jharkhand, Ranchi.

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1. The Regional Chief Engineer, Peyjal-Aur-Swachhta Vibag, Jharkhand State, Ranchi.

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1. Regional Chief Engineer, Department of Drinking Water and Sanitation, Jharkhand State, Ranchi.

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1. The Executive Engineer, Department of Drinking Water and Sanitation, Jharkhand State, Ranchi.

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………. Respondents.

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

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----------- For the Petitioner : Ms. Bakshi Vibha, Advocate For the Resp. : Mr. Kishore Kr. Singh, SC-V ----------

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06/ 08.01.2024 Heard the parties.

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2. Petitioner has thrown challenge to the order contained in letter No. 733 dated 29.05.2012 (Annexure-1), passed by respondent No. 2 whereby promotion granted to the petitioner has been recalled and rescinded on the ground that he was not senior to one Dewashish Singh and as such, the gradation list was not prepared in accordance with law and illegally and arbitrarily the petitioner has been granted promotion.

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3. Earlier the petitioner has approached this Court in W.P.(S). No. 5388 of 2005 and there was a specific observation of the Court to consider the claim of petitioner since he has been given promotion w.e.f. 28.11.1990. Since the petitioner was superannuated, the Court was of the view that prima facie petitioner is entitled to difference of salary, re-fixation of pension and gratuity and therefore, direction was given to send all the necessary papers including the service book and sanction order etc. to the office of Accountant General, Ranchi so that revised pension and revised gratuity may be finalized and the same may be paid to the petitioner. However, to the utter surprise of the petitioner instead of complying the

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order of the Court, the respondents have come-out with an order dated 29.05.2012, rejecting the claim of petitioner for promotion.

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Aggrieved by the same, petitioner has knocked the door of this Court. 4. Ms. Bakshi Vibha, learned counsel for the petitioner vociferously argues that order dated 29.05.2012 is whimsical, arbitrary and malafide. The denial of promotion to the grade of Special Foreman to the petitioner and putting Dewashish Singh above the petitioner in seniority list was not based on any departmental rules, policy and norms. Learned counsel further argues that denial of extending the retiral benefits after revising the pension and gratuity is illegal and arbitrary and action of the respondents is against the order passed by this Court.

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5. On the other hand, it has been argued by learned counsel for the respondent-State that petitioner is claiming seniority over one Dewashish Singh but he has not been made party in the instant writ application and as such, writ application is not maintainable for misjoinder/ non-joinder of the necessary party. It has been further argued that the post of Pump Khalasi and Assistant Pump Mistri are not the same. Sri Umeshwar Prasad Singh (Petitioner herein) was working as Pump Khalasi (work charge) in the payscale of Rs.770-5-85 and he was given promotion to the post of Assistant Plumbing Mistry (work charge) carrying pay-scale of Rs.75-5-85. In the light of above stated promotion, the petitioner joined the post of Assistant Plumbing Mistry (work charge) on 10.06.1967. Whereas, Dewashish Singh has been appointed to the post of Assistant Plumbing Mistri vide order dated 02.04.1967 and he joined the post on 03.06.1967. Thus, it is amply evident that entry of petitioner in the cadre at a later stage from that of Sri Dewashish Singh, so he cannot claim for seniority over the said Dewashish Singh. Justifying the impugned order, learned counsel argues that it is evident from the order passed by this Court that a direction was given to decide the matter which has already been complied with and vide letter No. 733 dated 30.05.2012 the claim of petitioner has been rejected by passing a reasoned order and as such, the present writ application is not maintainable and liable to be dismissed by this Court.

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6. This Court fails to understand as to when a specific order was passed by this Court for fixation of pension and gratuity since the petitioner has already retired, why the respondents have withdrawn the promotion earlier granted to the petitioner.

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7. Now, the issue to be decided is whether after retirement that too after 10 years of retirement, whether any order can be passed without following the procedure for recalling/ rescinding the order of promotion?

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8. Similar issue has fell into consideration in the case of Normi Topno v. State of Jharkhand , reported in 2007 SCC OnLine Jhar 501 : (2007) 4 JLJR 466, wherein the Full Bench of this Court has held as under:

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47. When the specific powers have been given to the competent Authority to recover the pension under certain conditions through Rule 43(b) of the Bihar Pension Rules, the said recovery can be done only under the said specific provision by following the conditions contemplated under the same and no other provision can be invoked in the garb of inherent powers. Therefore, decision of the Patna High Court Full Bench would not be of any use.

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48. In view of the above discussions, we arrive at the following conclusion. To sum up:

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After retirement, there is no relationship of employer and employee and as such no recovery can be made from the retrial benefits without following procedure of law as provided under Rule 43(b) of the Bihar Pension Rules. Hence, without fulfilling the conditions under Rule 43(b) and without cancelling the Order of promotion after enquiry by the competent Authority, pension and other retiral benefits cannot be recovered that too without giving opportunity to the retired employee and without giving any finding with reference to the mis-representation or misconduct on the part of the concerned employee or any other employee merely on the recommendation of audit objection.

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9. Any order visiting with civil or evil consequences, the provisions of audi alteram partem has to be followed and in case of a retired employee, it is the Pension Rules which comes into picture. Nothing has been brought on record to show that whether petitioner was given an opportunity before passing the impugned order to present his case. The impugned order is

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mechanical, cryptic and non-speaking order inasmuch as without adhering to the cardinal principal of natural justice and without following the provisions of Pension Rules, the order has been passed, which is not tenable in the eyes of law and the same is fit to be quashed and set.

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10. As a sequitur to the aforesaid observations, rules, guidelines and legal propositions, the impugned order dated 30.05.2012 is hereby quashed and set aside. This Court reiterated the same view that has been taken earlier by this Court in W.P.(S). 5388 of 2005. The respondents are directed to consider the case of petitioner for re-fixation of pension and gratuity within a period of two weeks from the date of receipt/ production of a copy of this order.

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11. Resultantly, the writ petition stands allowed.

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kunal/-

Umeshwar Prasad Singh v. Drinking Water and Sanitation

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Umeshwar Prasad Singh v. Drinking Water and Sanitation

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