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Ram Prasann Singh v. The State Of Jharkha...
Factual and Procedural Background
The petitioner, originally appointed as Forest Guard on 4.4.1965, was promoted to the rank of Range Officer of Forest by notification No. 6064 dated 9.11.1993 issued by the Department of Forest & Environment, Government of Bihar. He retired on 31.1.2001 and received retiral benefits (gratuity, provident fund and pension). Long after retirement, the petitioner was informed by Office Order No. 36 dated 6.11.2003 that his date of promotion was being altered from 9.11.1993 to 22.10.1999 (and the Departmental notification No. 5265 dated 1.10.2003 indicated an alteration to 23.10.1999). Thereafter the respondent issued letter No. 30 dated 21.1.2004 seeking recovery of the alleged excess promotional benefits paid to the petitioner for the period from 9.11.1993 to the new date of promotion.
The petitioner filed this writ application seeking quashment of: (i) notification No. 5265 dated 1.10.2003 (Annexure 2); (ii) Office Order No. 66 dated 6.11.2003 (Annexure 1); and (iii) letter No. 30 dated 21.1.2004 (Annexure 3). He also sought a direction to the respondents to release all retiral dues, including leave encashment, on the basis of the last pay drawn.
Legal Issues Presented
- Whether amounts paid to the petitioner by virtue of a promotion can be recovered from his retiral dues when there is no allegation of misrepresentation or fraud in obtaining that promotion.
- Whether the respondents were legally entitled to alter/shift the petitioner's date of promotion after his retirement and to recover alleged excess payments without giving the petitioner notice and an opportunity of hearing (i.e., in light of principles of natural justice).
Arguments of the Parties
Petitioner's Arguments
- The petitioner asserted that promotion to Forest Range Officer was granted by a competent authority with effect from 9.11.1993 and that he discharged duties on that basis and received pay accordingly.
- There was no allegation of fraud or misrepresentation by the petitioner in obtaining the promotions.
- Consequently, reliance was placed on the Supreme Court decision in Sahib Ram v. State of Haryana (1995 Supp (1) SCC 18) and a decision of this Court in Arjun Prasad Yadav v. State of Jharkhand [(2003) 4 JCR 682], both of which, the petitioner argued, preclude recovery of amounts paid in the absence of fraud or misrepresentation.
- The impugned orders shifting his promotion date and seeking recovery were contended to be arbitrary, illegal and violative of natural justice because they were issued without notice or opportunity of hearing.
Respondents' Arguments
- Respondents filed a counter-affidavit explaining the departmental and seniority adjustments: the petitioner had been given a paper promotion to Forester with effect from 1.8.1973 (date of passing the Forest Guard Training Examination) but, by letter No. 5519 dated 29.11.2002, the Government of Jharkhand fixed seniority rules which resulted in shifting the petitioner's date of promotion to Forester from 1.8.1973 to 25.5.1982 (the date of routine channel promotion).
- On account of that alteration, a corresponding change in the date of promotion to Range Officer followed; the Principal Chief Conservator of Forest was requested to rectify the date and the Government of Jharkhand notified the date of promotion to Range Officer with effect from 23.10.1999.
- Subsequently pay was refixed (Office Order No. 44 dated 19.12.2003) and excess payment was computed at Rs. 97,324/-, communicated to the petitioner by letter No. 30 dated 21.1.2004.
- The respondents relied on State of Jharkhand v. Smt. Girish Kumari Prasad (2004 (2) JLJR 426) to support their entitlement to recover unauthorized/overpaid amounts after modifying dates of promotion and pay fixation.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sahib Ram v. State of Haryana, 1995 Supp (1) SCC 18 | The principle that in absence of fraud or misrepresentation by an employee, amounts paid on the basis of a higher pay scale or promotion cannot be recovered from the employee. | The Court held that the recovery order (Annexure 3) was contrary to Sahib Ram and therefore not sustainable; the principle was applied to prohibit recovery where there was no allegation of fraud or misrepresentation. |
| Arjun Prasad Yadav v. State of Jharkhand, (2003) 4 JCR 682 | Followed the Sahib Ram principle that absent misrepresentation, amounts paid on higher pay fixation cannot be recovered. | The petitioner relied on this Court's decision; the opinion notes this decision as following Sahib Ram and treating it as supportive of the petitioner's case. |
| State of Jharkhand v. Smt. Girish Kumari Prasad, 2004 (2) JLJR 426 | Authority relied upon by respondents for the proposition that recovery of unauthorized payments is permissible. | The Court found that this Division Bench decision did not apply to the facts of the instant case and therefore did not assist the respondents; the Court held it had "absolutely no application" to these facts. |
Court's Reasoning and Analysis
The court's analysis proceeded on the following lines, using only the facts and legal material presented in the opinion:
- Absence of fraud or misrepresentation: The court noted that there was no allegation anywhere that the petitioner obtained promotions by misrepresentation or fraud. Promotions and pay fixation were made by competent authorities long before retirement.
- Acceptance and reliance during service: The petitioner had received pay on the promoted scales and had discharged the duties of the promoted posts during his service, with no dispute raised while he was in service.
- Violation of natural justice: The court emphasized that orders which cause prejudice cannot be passed without giving the affected person an opportunity of hearing. The modification of promotion dates and the recovery order were issued after retirement and without giving notice or hearing to the petitioner; for that reason those orders were said to violate principles of natural justice and were declared null and void.
- Precedential constraint on recovery: The court applied the Supreme Court's decision in Sahib Ram to hold that an order of recovery is not sustainable where there is no misrepresentation or fraud. The recovery sought in Annexure 3 was therefore contrary to Sahib Ram.
- Distinguishing the respondents' authority: The court considered the Division Bench decision cited by respondents (State of Jharkhand v. Smt. Girish Kumari Prasad) but concluded that it had no application to the facts of this case and could not justify the impugned orders.
- Not a case of admitted mistake or inadvertence: The court observed that this was not a case where promotions were given inadvertently or by mistake; the promotions and corresponding pay fixation had been acted upon for years. Therefore respondents could not, by administrative fiat after retirement and without notice, shift promotion dates to the petitioner's disadvantage.
- Remedial and supervisory relief: On that combined basis of procedural unfairness and applicable precedent, the court quashed the impugned orders and directed restoration of retiral dues calculated on last pay drawn plus statutory interest, with further directions concerning timing and compensatory interest in case of default.
Holding and Implications
Holding: The writ petition is allowed and the impugned orders (Annexures 1, 2 and 3) are quashed.
Direct Consequences and Directions
- The respondents are directed to release all retiral benefits, inclusive of leave encashment, on the basis of the last pay drawn by the petitioner.
- The petitioner is entitled to receive all retiral dues with statutory interest from the date of his retirement until actual payment.
- All retiral dues must be paid within two months from the date of receipt/production of a copy of the court's order.
- If payments are not made within that two-month period, the petitioner shall be entitled to compensatory interest at the rate of 10% per annum on the dues, in addition to the statutory interest.
- The Government is at liberty to fix responsibility and recover the amount of compensatory interest paid to the petitioner from the official(s) found responsible for the delay.
- There is no order as to costs.
Broader Implications
The opinion enforces the principle that, absent fraud or misrepresentation, departmental demands for recovery of sums paid on the basis of promotions applied and acted upon during service are not sustainable; it also reiterates the requirement that any administrative action that prejudices a person must observe principles of natural justice. The Court did not indicate that it was creating a new legal precedent beyond applying the binding principle from Sahib Ram and related authority; accordingly, the decision's practical effect is to provide relief to the petitioner and to prohibit the particular recoveries and date-shifting undertaken here.
Narendra Nath Tiwari, J.:— In this writ application, the petitioner has prayed for quashing: (i) the notification No. 5265 dated 1.10.2003 (Annexure 2) issued by the Department of Forest & Environment, Government of Jharkhand, whereby the promotion given to the petitioner to the post of Forest Range Officer with effect from 9.11.1993 has been sought to be shifted and made effective from 23.10.1999 (ii) the Office Order No. 66 dated 6.11.2003 (Annexure 1) issued by the respondent No. 3 pursuant to the said order (Annexure 2) shifting the date of promotion from 9.11.1993 to 22.10.1999 and for quashing the letter No. 30 dated 21.1.2004 (Annexure 3) issued by the respondent No. 3 whereby the difference of amount given to the petitioner as promotional benefits since the date of promotion with effect from 9.11.1993 has been sought to be recovered out of the amount of the leave encashment payable to the petitioner, after his retirement. The petitioner has also prayed for a direction to the respondents to make payment of all his retiral dues including the leave encashment amount on the basis of last pay drawn by him.
2. The petitioner's case is that he was appointed as Forest Guard on 4.4.1965 In course of his service, he was promoted to the post of Forest Range Officer by notification No. 6064 dated 9.11.1993 issued by the Department of Forest & Environment, Government of Bihar.
3. The petitioner attained the age of superannuation and retired on 31.1.2001 from the post of Forest Range Officer. After his retirement, retiral benefits were paid to the petitioner, such as gratuity, provident fund and the pension. Long after his retirement, the petitioner received office order No. 36 dated 6.11.2003 whereby his date of promotion has been sought to be shifted and modified from 9.11.1993 to 22.10.1999 It was mentioned that by notification No. 5265 dated 1.10.2003 issued by the Department of Forest & Environment, Government of Jharkhand a decision was taken to alter the date of the petitioner's promotion from 9.11.1993 to 22.10.1999 The petitioner was, thereafter, served with letter No. 30 dated 21.1.2004 (Annexure 3) issued by the respondent No. 3 whereby the alleged excess amount paid to the petitioner on account of promotion from 9.11.1993 till 22.10.1999 was sought to be recovered. The grievance of the petitioner is that the said impugned orders have been passed arbitrarily and illegally and even without giving any notice or opportunity of hearing to the petitioner. No reason, whatsoever, has been assigned for altering/shifting the date of promotion of the petitioner from 9.11.1993 to 22.10.1999 While doing so, it has not been alleged that the petitioner obtained the said promotion order by mis-representation or fraud. It has been claimed that once promotion was given to the petitioner by the competent authority, the same cannot be cancelled or the date cannot be altered/shifted to the disadvantage of the employee without giving him any notice and opportunity of hearing. And as such the impugned orders are wholly illegal and arbitrary and are violative of principles of natural justice. The petitioner discharged his duties as Forest Range Officer with effect from 9.11.1993 and in lieu thereof he was given the pay scale of Forest Range Officer and that the same cannot be recovered from the petitioner long after the date of his retirement. It has been claimed that the impugned orders shifting his date of promotion from 9.11.1993 to 22.10.1999 are wholly arbitrary and illegal and as there was no mis-representation or fraud on the part of the petitioner, the promotional, benefits given to the petitioner cannot be recovered after his retirement and as such the impugned orders are liable to be quashed.
4. A counter affidavit has been filed on behalf of the respondent Nos. 1, 2 and 3. The respondents tried to justify the impugned orders and contested the petitioner's claim on the ground, interalia, that the petitioner was given promotion to the rank of Forester in compliance of the Office Order No. 396 dated 1.5.1982 of the Chief Conservator of Forests, Bihar (Annexure ‘A’). The petitioner was posted in State Trading Circle, Jamshedpur. The petitioner was given paper promotion to the rank of Forester since 1.8.1973, the date of his passing the Forest Guard Training Examination. The Forest and Environment Department, Government of Bihar, by its notification No. 6064 dated 9.11.1993 had given promotion to the petitioner to the rank of Range Officer of Forest on the basis of his seniority since 1.8.1973 in the rank of Forester. The Government of Jharkhand, vide its letter No. 5519 dated 29.11.2002 fixed the seniority of Forest Guards from the date of passing the Training Examination with Honours or standing first with Honours or simply standing first, whereby the Forest Guards passing with Honours in examinations held before 17.12.1986, were held to be eligible for quick promotion. In the light of the said decision, the petitioner's promotion to the rank of Forester given to him with effect from 1.8.1973 was withdrawn and by letter No. 5519 dated 29.11.2002 and date of his promotion to the rank of Forester' was shifted from 1.8.1973 to 25.5.1982 which was the date of his routine channel promotion. After the said alteration in the date of promotion to the rank of Forester corresponding change in the date of promotion to the rank of Range Officer of Forest was a natural consequence/The Principal Chief Conservator of Forest of Jharkhand was, thus, requested by the Regional Conservator of Forest, East Singhbhum by letter No. 761 dated 11.3.2003 to rectify the date of promotion of the petitioner accordingly. The Government of Jharkhand, notified the date of promotion of the Forest Range Officer with effect from 23.10.1999 On the basis of the said change in the date of promotion, annual pay increment of the petitioner was revised in the pay scale of Forest Guard and his pay was refixed by Office Order No. 44 dated 19.12.2003 After the said revised pay fixation, the excess payment, has been worked out to the sum of Rs. 97,324/- which has been communicated to the petitioner by Conservator of Forest, State Trading Circle, Singhbhum by letter No. 30 dated 21.1.2004
5. The short question, which arises for consideration in this writ application is, as to whether any payment made after giving promotion, to the petitioner without any misrepresentation or fraud committed by him can be recovered from his retiral dues.
6. Mr. Sunil Kumar Sinha, learned counsel appearing on behalf of the petitioner relied on the decision of the Supreme Court of India in Sahib Ram v. State of Haryana reported in 1995 Supp (1) SCC 18. Learned counsel submitted that since there was no fraud or misrepresentation by the petitioner in obtaining the promotion to the rank of Forester or, Forest Range Officer, he cannot be made liable for recovery of the excess payment and the amount of salary paid to him by virtue of his promotion to the higher rank cannot be recovered. Learned counsel submitted that order of promotion was issued by the competent authority and his pay scale, after promotion, was fixed by the department. There is absolutely no allegation of any misrepresentation by the petitioner and as such the petitioner cannot be held to be at fault. Mr. Sinha urged that the case of the petitioner is squarely covered by the said decision of the Supreme Court. Learned counsel also referred to a decision of this Court in Arjun Prasad Yadav v. State of Jharkhand, [(2003) 4 JCR 682] which followed the said decision of Sahib Ram (supra) and this Court also held that in absence of any misrepresentation by an employee to get a higher pay scale, any amount paid on the basis of the fixation of higher pay scale cannot be “recovered.”
7. Mr. Pradip Modi, learned G.P.I on the other hand, contested the claim of the petitioner and cited a decision of a Division Bench of this Court in State of Jharkhand v. Smt. Girish Kumari Prasad reported in, 2004 (2) JLJR 426. Learned counsel submitted that the respondents are entitled to recover the unauthorized amount paid to the petitioner from his retiral dues calculated after modification of the dates of promotion to the rank of Forester and consequently to the Forest Range Officer. Learned counsel emphatically supported the impugned order of shifting the date of the petitioner's promotion to the rank of Forester as well as to the rank of the Range Officer as also the order of recovery and submitted that there is no illegality or infirmity in the impugned orders and the writ application has no merit.
8. From the submissions made by the learned counsel and the facts appearing on record, it is evident that there is no allegation of any misrepresentation by the petitioner at any stage when the order of promotion to the rank of Forester and there after to the rank of Forest Range Officer were issued. The said orders were issued long back when the petitioner was promoted to the rank of Forester by office order No. 396 dated 1.5.1982 and dated 25.9.1989 and to the rank of Range Officer of Forest by notification No. 6064 dated 9.11.1993 Thereafter, pay scales were fixed by the authorities concerned and the petitioner got his salary on the basis of the said orders of the competent authorities. He also discharged the duties of the promoted rank(s) and office(s). No dispute was ever raised regarding his promotion or pay scale during his service period and after his retirement, the date of promotion to (the rank of Forester and the Forest Range Officer, have been sought to be shifted forward to his disadvantage by the impugned Annexures 1 and 2, and the order of recovery has also been issued (Annexure 3) and that too without giving him any notice and opportunity of hearing. It is now well settled that any order causing prejudice to a person cannot be passed without giving him an opportunity of hearing. The impugned orders having been issued violating the principles of natural justice are, thus, null and void. The order of recovery, as contained in Annexure 3, is also in the teeth of the decision of the Supreme Court in Sahib Ram (supra) and is not sustainable also-on that count. Since the instant case is not a case of an inadvertence or mistake in giving promotion, the orders were issued by the competent authorities on the basis of the departmental decision, and the scales were fixed after the respective promotions by the competent authority, and payments of the salary were made on the promoted scales for years till the retirement of the petitioner, the respondents cannot now shift the dates of promotion according to their own volition without giving any notice and opportunity of hearing to the petitioner. It is not a case of admitted mistake/position and as such the decision of the Division Bench in the State of Jharkhand v. Smt. Girish Kumari Prasad (supra) has absolutely no application in the facts and circumstances of the instant case and the same does not help the respondents so as to justify the said arbitrary orders, as contained in Annexure 1, 2 and 3.
9. In the result, this writ application is allowed; the impugned orders, as contained in Annexures 1, 2 end 3 are quashed. The respondents are directed to release all the retiral benefits inclusive of leave encashment on the basis of the last pay drawn by the petitioner. The petitioner is held entitled to get all the retiral dues with statutory interest from the date of his retirement till the date of actual payment thereof. All the retiral dues of the petitioner must be paid within a period of two months from the date of receipt/production of a copy of this order; if the payments, aforesaid, are not made within the said period, the petitioner shall be further entitled to get compensatory interest at the rate of 10% per annum on the dues, over and above the statutory interest payable thereon. The Government shall be at liberty to fix responsibility and recover the amount of compensatory interest paid to the petitioner from the erring official(s) found causing delay in payment of the petitioner's dues.
10. Order accordingly. There shall be no order as to costs.
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