Dismissed

Ramawtar Purbey v. the State of Bihar and Ors.

Patna HC17 Apr 2013CWJC/5986/2012

Case brief

AI extract

What is this about?

Patna High Court dismissed a writ petition filed by a retired Water Resources Department employee challenging the cancellation of his time-bound promotion. The court held he was ineligible as the scheme was abolished in 1996 before he passed the requisite exam.

What did the court decide?

Application dismissed; petitioner retained liberty to claim benefit of ACP under 2003 Rules; order placed in pending application regarding last pay fixation.

`IN THE HIGH COURT OF JUDICATURE AT PATNA` `CIVIL WRIT JURISDICTION CASE NO.5986 OF 2012` `===================================================`
`1. RAMAWTAR PURBEY SON OF LATE TURI PURBEY RESIDENT` `OF MOHALLA SHANTI NAGAR P.S. BANKA IN THE DISTRICT` `OF BANKA`
`.... .... PETITIONER/S` `VERSUS`
`1.THE` `STATE` `OF` `BIHAR` `THROUGH` `THE` `PRINCIPAL` `SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT` `OF BIHAR, PATNA` `2.THE` `ENGINEER-IN-CHIEF,` `WATER` `RESOURCES` `DEPARTMENT, GOVERNMENT OF BIHAR, PATNA` `3.THE CHIEF ENGINEER, WATER RESOURCES DEPARTMENT,` `BHAGALPUR`
`4.THE` `EXECUTIVE` `ENGINEER,` `WAETER` `RESOURCES` `(MECHNICAL) DEPARTMENT SAMASTIPUR`
`,` `.... .... RESPONDENT/S` `===================================================` `Appearance :` `For the Petitioner/s:Mr. Braj Nandan Kumar Tiwary` `For the Respondent/s:Mr. Avnish Nandan Sinha GP11` `===================================================`
`CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA` `ORAL ORDER`
`10/` `17-04-2013` `Heard counsel for the parties.`
`2. Having regard to the fact that the`
`petitioner` `has` `assailed` `the` `order` `dated`
`12.11.2007 by filing this writ application on`
`27.03.2012, this Court would not be in a`
`position to now consider the grievance of the`
`petitioner as against the impugned order,`
`inasmuch as, there is inordinate delay of more`
`than four and a half years in filing of the`
`writ` `application.` `In` `fact,` `there` `is` `no`
`explanation of the petitioner as with regard`
`to the aforementioned delay.`

IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL WRIT JURISDICTION CASE NO.5986 OF 2012
===================================================

1. RAMAWTAR PURBEY SON OF LATE TURI PURBEY RESIDENT
OF MOHALLA SHANTI NAGAR P.S. BANKA IN THE DISTRICT
OF BANKA

.... .... PETITIONER/S
VERSUS

1.THE
STATE
OF
BIHAR
THROUGH
THE
PRINCIPAL
SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT
OF BIHAR, PATNA
2.THE
ENGINEER-IN-CHIEF,
WATER
RESOURCES
DEPARTMENT, GOVERNMENT OF BIHAR, PATNA
3.THE CHIEF ENGINEER, WATER RESOURCES DEPARTMENT,
BHAGALPUR

4.THE
EXECUTIVE
ENGINEER,
WAETER
RESOURCES
(MECHNICAL) DEPARTMENT SAMASTIPUR

,
.... .... RESPONDENT/S
===================================================
Appearance :
For the Petitioner/s:Mr. Braj Nandan Kumar Tiwary
For the Respondent/s:Mr. Avnish Nandan Sinha GP11
===================================================

CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA
ORAL ORDER

10/
17-04-2013
Heard counsel for the parties.

2. Having regard to the fact that the

petitioner
has
assailed
the
order
dated

12.11.2007 by filing this writ application on

27.03.2012, this Court would not be in a

position to now consider the grievance of the

petitioner as against the impugned order,

inasmuch as, there is inordinate delay of more

than four and a half years in filing of the

writ
application.
In
fact,
there
is
no

explanation of the petitioner as with regard

to the aforementioned delay.

3. Having held so this Court was not even required to go into the merits of the order but then as learned counsel for the petitioner has also tried to submit that the petitioner is a retired employee and the order of recovery will spell doom for him, this Court has gone into the aspect relating to such recovery. From the reading of the impugned order it becomes manifest that such recovery was continuing in active service of the petitioner who retired only 31.03.2008 whereas the impugned order has been passed on 12.11.2007.

4. From the impugned order it is also clear that the petitioner before being subjected to such order of recovery which is on account of cancelling of his time bound promotion was given a show cause notice vide letter no. 2845 dated 14.08.2007. The finding of the authority is that the petitioner did not file the show cause reply within the prescribed period. This aspect of the matter is also not controverted by the petitioner, inasmuch as, in paragraph no. 8 the petitioner has even failed to disclose the date on which such show cause reply was filed by him. In

paragraph no. 8 of the writ application by itself would be evident of the fact that the petitioner did not avail the opportunity of personal hearing which was given to him by way of show cause notice. The plea of violation of the principles of natural justice also therefore is not available to the petitioner. 5. That apart the petitioner was a correspondence clerk in the Water Resources Department and for such promotion in terms of Rule-157(J) of Bihar Board Miscellaneous Rules, is admissible to the person only if he had passed the departmental examination. The time bound promotion, which was by way of removal of stagnation on account of denial of regular promotion, in terms of Government Resolution dated 30.12.1981 had itself envisaged that for being granted time bound promotion a person concerned will have to fulfill all the condition and requirement of regular promotion whereas it is an admitted fact that the petitioner had not passed the departmental examination on the date of grant of his first time bound promotion till 13.11.1987 w.e.f 01.09.1983. Thus this Court

6. The submission of learned counsel for the petitioner that the petitioner eventually had passed the departmental examination on 27.05.1998 will also be of no help and avail so far it relates to the grant of time bound promotion. The scheme of time bound promotion was in vogue from 01.04.1981 to 31.12.1995 and the same got abolished w.e.f 01.01.1996. If the petitioner, therefore, had not passed the departmental examination till 31.12.1995, he would not be entitled to get such time bound promotion. Therefore, the authority has also not committed any error in cancelling the time bound promotion. Moreover, the date on which the said order was passed, the petitioner was in active service and therefore, he can not raise plea of recovery being not permissible as has been held by the Apex Court in the case of Chandi Prasad Uniyal

& Ors. Vs. State of Uttarakhand & Ors. reported in 2012(8) SCC 417 wherein after considering all the earlier judgments including the case of Syed Abdul Quadir Vs. State of Bihar reported in 2009(3)SCC 475, it was held as follows:-

*`“13.`*`We` `are` `not`
`convinced that this Court in`
`various judgments referred to`
`hereinbefore has laid down any`
`proposition of law that only`
`if the State or its officials`
`establish` `that` `there` `was`
`misrepresentation or fraud on`
`the part of the recipients of`
`the excess pay, then only the`
`amount` `paid` `could` `be`
`recovered. On the other hand,`
`most of the cases referred to`
`hereinbefore` `turned` `on` `the`
`peculiar` `facts` `and`
`circumstances of those cases`
`either because the recipients`
`had retired or were on the`
`verge of retirement or were`
`occupying lower posts in the`
`administrative hierarchy.`
*`14.`* `We are concerned`
`with the excess payment of`
`public money which is often`
`described` `as` `“taxpayers’`
`money” which belongs neither`
`to` `the` `officers` `who` `have`
`effected overpayment nor to`
`the recipients. We fail to see`
`why the concept of fraud or`
`misrepresentation` `is` `being`
`brought in in such situations.`
`The question to be asked is`
`whether excess money has been`
`paid or not, may be due to a`
`bona fide mistake. Possibly,`
`effecting excess payment of`
`public money by the government`
`officers may be due to various`
`reasons` `like` `negligence,`
`carelessness,` `collusion,`
`favouritism,` `etc.` `because`
`money in such situation does`
`not belong to the payer or the`
`payee.` `Situations` `may` `also`
`arise where both the payer and`
`the payee are at fault, then`
`the` `mistake` `is` `mutual.`
`Payments are being effected in`
`many situations without any`
`authority of law and payments`
`have` `been` `received` `by` `the`

“13.We
are
not

convinced that this Court in

various judgments referred to

hereinbefore has laid down any

proposition of law that only

if the State or its officials

establish
that
there
was

misrepresentation or fraud on

the part of the recipients of

the excess pay, then only the

amount
paid
could
be

recovered. On the other hand,

most of the cases referred to

hereinbefore
turned
on
the

peculiar
facts
and

circumstances of those cases

either because the recipients

had retired or were on the

verge of retirement or were

occupying lower posts in the

administrative hierarchy.

14.
We are concerned

with the excess payment of

public money which is often

described
as
“taxpayers’

money” which belongs neither

to
the
officers
who
have

effected overpayment nor to

the recipients. We fail to see

why the concept of fraud or

misrepresentation
is
being

brought in in such situations.

The question to be asked is

whether excess money has been

paid or not, may be due to a

bona fide mistake. Possibly,

effecting excess payment of

public money by the government

officers may be due to various

reasons
like
negligence,

carelessness,
collusion,

favouritism,
etc.
because

money in such situation does

not belong to the payer or the

payee.
Situations
may
also

arise where both the payer and

the payee are at fault, then

the
mistake
is
mutual.

Payments are being effected in

many situations without any

authority of law and payments

have
been
received
by
the

recipients also without any authority of law. Any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.

15.We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case and in Col. B.J. Akkara case, the excess payment made due to wrong/irregular pay fixation can always be recovered.”

8. Learned counsel for the State at this stage has informed this Court that the petitioner has already filed the writ application being C.W.J.C No. 13230 of 2011 for fixation of his last pay after giving him the benefit of first time bound promotion. As this Court has found the petitioner ineligible for grant of first time bound promotion while dismissing this writ application. The respondents will have the liberty to place this order in the aforesaid pending writ application.

9. Nothing said in this order however will come in the way of the petitioner in claiming grant of benefit of ACP which became admissible from the year 1999 in terms of 2003 Rules and since the petitioner has already passed the departmental examination in the year 1998 and therefore if he is otherwise eligible in terms of 2003 ACP Rules he may be given the benefit of ACP, if not already given to him.

Ramawtar Purbey v. the State of Bihar and Ors.

Case brief

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Ramawtar Purbey v. the State of Bihar and Ors.

Case brief

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