Quashed

Sri Devendra Singh and Ors. v. the State of Bihar and Ors.

Patna HC14 Dec 2012CWJC/1726/2001

Case brief

AI extract

What is this about?

High Court quashed an order cancelling time-bound promotions of Tourism Department employees due to alleged failure to pass accounting exams, holding departmental error should not penalize innocent employees and recovery of past payments is barred.

What did the court decide?

Annexure 4 quashed to the extent of depriving petitioners of time-bound promotion; no recovery for past period; order operates prospectively.

Sri Devendra Singh and Ors. Vs the State of… — Pension and Retirement Benefits | Patna HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.1726 of 2001

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====================================================== 1 Sri Devendra Singh, „Typist Clerk‟, son of late Rasdeep Singh, Tourism Information Centre, Sitamarhi, resident of village – Narkatia, PO – Bhabhangama, via Riga, PS – Majorganj, District – Sitamarhi 843 327

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2 Sri Mokhtar Singh, son of late Saryug Singh, Tourism Department (Headquarters), Patna, resident of village & PO – Manikpur, PS – Gopalganj, District – Gopalganj

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3 Sri Rameshwar Bharti, son of late Nathuni Bharti, Tourism Department (Headquarters), Patna, resident of village & PS – Garkha, District – Saran

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4 Sri Raj Narayan Mahto, son of late Bramhdeo Mahto, Tourism Department (Headquarters), Patna, resident of Mohalla – Harnichak, PO – Anisabad, PS – Phulwari, District – Patna

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5 Smt Leena Kumari, wife of Sri Vijay Kumar Sinha, Tourism Department (Headquarters), Patna c/o Sri Sidhnath Singh, Mohalla – Aambagicha, PO – GPO, PS – Gardanibagh, District – Patna

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6 Sri Krishna Prasad, son of Sri Ramkhelari Yadav, Tourism Department (Headquarters), Patna, resident of North Mandiri, PO – GPO, PS – Budha Colony, District – Patna

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7 Sri Laxmi Sah, son of late Parmeshwar Sah, Tourism Department (HO), Patna, resident of Kharmanchak, PS – Kotwali, District – Bhagalpur

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8 Sri Jwala Prasad Kaparia, son of late Saryug Prasad Kaparia, Tourism Department (HO), Patna, resident of Mohalla – Sheikhpura, PO – Veterinary College, District – Patna, 800 004

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9 Sri Nagendra Mandal, son of Sri Jamun Mandal, Tourism Department (HO), Patna, resident of c/o Sri Gopal Prasad Gupta, Mohalla – Kahartoli, Old Jakkanpur, District – Patna

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10 Sri Anant Kumar Srivastava, son of late Ramnandan Prasad, Tourism Department (HO) Patna, c/o Sri Raja Sah, Yarpur, District – Patna

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11 Sri Jaglal Thakur, son of late Rajbansi Thakur, Tourism Department (HO) Patna, resident of village – Narayanpur, PS – Hasua, PS – Nautan, District – Siwan

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12 Sri Dhrubdeo Prasad, son of Sri Ramnath Prasad, Tourism Department (HO) Patna, resident of c/o Sri Ramasarai Singh, „Ram Niwash‟, Purandarpur, District – Patna 800 001

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13 Sri Ashraf Ali, son of Sri Md Yusuf, Tourism Department (HO), Patna, resident of village & PO & PS – Hussainganj, District – Siwan

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14 Sri Kapileshwar Jha, son of late Baidnath Jha, Tourism Department (HO), Patna, resident of village – Deohar (Bidulia), PO – Deoghar, PS – Andhradhahi, District – Madhubani

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15 Sri Parishan Yadav, son of late Newa Yadav, Tourism Department (HO), Patna, resident of village & PO – Jagban, via Kamtaul, PS – Bisfi, District – Madhubani

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16 Sri S Jiwan, son of late M Shiv Shankar, Tourism Department (HO) Patna, resident of c/o Sri R N Swami, Mohalla – Bakarganj, Bajaja, Patna – 800 004

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17 Sri Dhan Raj Ram, son of late Ram Dhari Ram, Tourism Department, resident of village & Post – Sahuli, PS – Hussaingunj, District - Siwan .... .... Petitioner/s

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Patna High Court CWJC No.1726 of 2001 (9) dt.14-12-2012

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Versus 1 The State Of Bihar 2 The Commissioner –cum- Secretary –cum- Director, Tourism Department, Bihar, Barrack No 14, Old Secretariat, Patna 3 The Secretary, Department of Tourism, Barrack No 14, Old Secretariat, Patna 4 The Secretary, Board of Revenue, Old Secretariat, Patna 5 The Commissioner –cum- Secretary, Department of Finance, Old Secretariat, Patna .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : M/s Madhuresh Prasad, Prabhat Ranjan & Ravi Verma, Advocates For the Respondent/s : Mr Gautam Bose, AAG 8 with Mr Sanat Kumar Mishra, AC to AAG 8 ====================================================== CORAM: HON’BLE MR JUSTICE NAVANITI PRASAD SINGH ORAL ORDER

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9 14-12-2012 In this writ petition, the petitioners are Class III employees employed in the Tourism Department, Government of Bihar. They are aggrieved by order as contained in Annexure 4 being order dated 09.11.2000 issued by the Commissioner –cumSecretary –cum- Director, Department of Tourism, Bihar whereby the time bound promotions granted to these petitioners without their passing the Accounts Departmental Examinations have been cancelled with a further direction that any amount that had been paid to them would be recovered.

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Counter affidavit is on record with rejoinder filed. With consent of parties, this writ petition has been heard for

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Patna High Court CWJC No.1726 of 2001 (9) dt.14-12-2012

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its final disposal at this stage itself.

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The petitioners‟ stand is that, as would be evident from various contemporaneous documents, the stand of the Tourism Department itself was that the employees of the Tourism Department were not bound by Rule 157J of the Board‟s Miscellaneous Rules which made it obligatory on employees of the State Government in the Secretariat and attached offices as well as Mufassil offices to pass departmental examinations in Accounts before becoming eligible for promotion. In that view of the matter, the employees having been precluded from taking examinations because of the stand of the Department at the highest level itself, they cannot be made to suffer the consequences of such a wrong decision. On the other hand, on behalf of State, it is submitted that even a wrong committed by the State cannot be allowed to be perpetuated and continued. It must be set at right and any undue amount paid must be recovered.

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Having considered the matter, in my view, both the submissions of the two sides are correct but they have been very broadly stated. The undisputed facts of this case would show that notwithstanding the notification issued by the Government through the Board of Revenue, the Department, at the highest level, was of the view that the employees of the Tourism Department were a separate cadre and the said notification or the Board‟s Miscellaneous Rules in that regard did not apply. This stand was

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Patna High Court CWJC No.1726 of 2001 (9) dt.14-12-2012

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clearly communicated by the Department to the Board of Revenue. The Board of Revenue opined to the contrary. The Department still continued with the same stand till ultimately accepting the views of the Board of Revenue, the impugned decision was taken. From this, it would be clearly established that the employees had no choice nor any option in view of the stand consistently taken by the Department. They were deprived of opportunity to take the Departmental Examinations on the ground that they were not so required. Now they are being told that the departmental head, the controlling authority took a wrong decision and that being so for that wrong decision, they must now suffer. In my view, this cannot be permitted. I am remanded on what Chief Justice Chagla said more than five decades back in

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the case of All India Groundnut Syndicate Limited -Versus- Commissioner of Income Tax, Bombay City, AIR 1954 Bombay 232 :

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“But the most surprising contention is put forward by the Department that because their own officer failed to discharge his statutory duty, the assessee is deprived of his right which the law has given to him under sub-section (2) of S 24. In other words, the Department wants to benefit from and wants to take advantage of its own default. It is an elementary principle of law that no person - we take it that the Income-tax Department is included in that definition - can put forward his own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because “I have committed a default and the right is lost because of that default.”

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In my view, the matter does not end there.

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Once the mistake was realized then the petitioners cannot urge that the mistake goes uncorrected. A mistake cannot be permitted to be continued to be perpetuated. Department is duty bound to

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Patna High Court CWJC No.1726 of 2001 (9) dt.14-12-2012

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correct the mistake. Thus, I also hold that once the Department realized the mistake then and thereafter, it is at liberty to refix the pay scale correctly and require the employees to clear the Departmental Examination or face consequences of non-grant of time bound promotion.

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Now coming to the aspect of recovery. Learned counsel for the State relies on a recent decision of the Apex Court in the case of Chandi Prasad Uniyal and Others Versus State of Uttarakhand and Others since reported in (2012) 8 Supreme Court Cases 417 for the proposition that a wrong benefit granted not only cannot be permitted to continue but the State has an authority to recover all excess payments made. I have gone through the judgment. The proposition on behalf of the State is again too broad to be accepted. A reference to the said judgment of the Apex Court would show that it had clearly carved out exceptions.

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In my view, this case falls within those exceptions. Some of the employees have already superannuated, some are about to superannuate. They had been receiving the benefits under the time bound promotion scheme, though now found wrongly, for almost two decades. As noted above, they had nothing to do with the wrong decision rather they became victims

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Patna High Court CWJC No.1726 of 2001 (9) dt.14-12-2012

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of the wrong decision. Had they been told earlier that they would get the time bound promotion only after clearing the Departmental Examination, they would have readily accepted the same and taken the said examination. Now, it would be highly inequitable to permit recoveries to be made. One must not forget that remunerations received by employees do not go into savings. They are spent. According to their pay structure, they make social and economic commitments. If recoveries at this belated stage are ordered to be made, it would upset their whole basis of surviving. Their families would have to suffer for no fault of theirs rather for fault of the departmental heads. That cannot be permitted. It would clearly be in the exception, as noted by the Apex Court itself.

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Thus, I hold that Annexure 4 to the extent of

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depriving the petitioners and their like of time bound promotion for failure to take the departmental examinations would, in the peculiar facts and circumstances, operate prospectively only and no recoveries for past period would be made.

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To that extent, Annexure 4 is quashed. The writ petition is, thus, disposed of in the aforesaid terms.

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M.E.H ./-

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(Navaniti Prasad Singh)

Sri Devendra Singh and Ors. v. the State of Bihar and Ors.

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Sri Devendra Singh and Ors. v. the State of Bihar and Ors.

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