Lal Das & Ors Vs. The State of Bihar & Ors  Insc 635 (10 October 2006)
Pasayat & Lokeshwar Singh Panta
out of SLP (C) Nos. 20306-20308 of 2005) WITH
[Civil Appeal Nos 4387/2006 (Arising out of S.L.P. (C) 1827-1828)] ARIJIT
both these appeals challenge is to the legality of the common judgment passed
by the Patna High Court dismissing of different Letters Patent Appeals filed by
the appellants. By the impugned judgment the High Court dismissed the Letters
Patent Appeals. It was held that the view of learned Single Judge dismissing
the writ petitions filed by the appellants challenging their reversion as well
as recovery of the amounts paid on account of promotion was in order.
position in a nutshell is as follows:- Except some of the appellants who were
Class IV employees remaining appellants were holding Class III posts, that is,
Basic Health Workers. They were promoted to the post of Clerk in the year 1992.
Subsequently, an audit team raised objection to the said promotions expressing
the view that the appellants could not have been promoted. On the basis of the
audit report action was taken. State Government was of the view that promotions
granted were illegal and accordingly the appellants were reverted to the
original post held by each one of them. Being aggrieved by the said order, some
of the appellants moved the High Court which quashed the orders on the ground
that adequate opportunity was not granted to show cause before the action was
taken. Thereafter, show cause notices were issued to which the appellants
they were reverted to the original post held by each and direction was given to
recover the excess amounts which had been paid. Writ petitions were filed
challenging the orders in that regard. In each case learned Single Judge
dismissed the writ petition. As noted above the Letters Patent Appeals were
support of the appeals learned counsel for the appellants submitted that there
was no fault on the part of the appellants and they had been appointed on the
basis of the recommendations made by the Selection Committee. Even if it is
conceded that there was any procedural irregularity that could not have
affected the promotion granted and no action could have been taken after lapse
of time. In any event, the recovery of the amount is uncalled for.
counsel for the respondent-State and its functionaries supported the judgment
submitting that the courts below had noted the reasons for directing reversion.
if the appellants had worked in the promotional post yet they were not entitled
to the higher salary attached to each of the promotional post. Therefore, the
recovery has rightly been directed. Reliance was placed on decisions of this
Court in R. Vishwanatha Pillai v. State of Kerala and Ors. (2004 (2) SCC 105), LIC of India v. Sushil (2006 (2) SCC 471) and Ram Saran v. I.G. of Police, CRPF
(2006 (2) SCC 541).
reasons which weighed by the respondent-State to hold that the promotion was
illegal does not suffer form any infirmity. Class III employees could not have
been promoted as they belong to the technical cadre and the promotional posts
related to non-technical cadre. That apart the Class III employees were already
holding Class III post and, therefore, there was no question of promotion to
the same class. So far as class IV employees are concerned, their promotion was
also not considered in terms of statutory provision. The quota of promotion to
Class III from Class IV is fixed and the procedure is provided for deciding the
question of promotion. The promotions were granted without placing their cases
before the Establishment Committee and the Committee which accorded approval
was not properly constituted, and the reservation policy was not followed and
promotions were given without adopting the procedure relating to advertisement.
High Court also noted that the appointments were made by the Civil Surgeon
though a ban had been imposed by the State Government on appointments.
Therefore, the order of reversion in each case cannot be faulted.
as the recovery is concerned, in a normal course if the promotion/appointment
is void ab initio, a mere fact that the employee had worked in the concerned
post for long cannot be a ground for not directing recovery. The cases relied
upon by the learned counsel for the State were rendered in different backdrop.
In those cases the appellants were guilty of producing forged certificates or
the appointments had been secured on non-permissible grounds. In that
background this Court held that recovery is permissible. On the contrary, the
fact situation of the present case bears some similarity to the cases in Sahib
Ram v. State of Haryana (1995 Supp.(1) SCC 18), Bihar State
Electricity Board and Anr. v. Bijay Bhadur and Anr. (2000 (10) SCC 99) and
State of Karnataka and Anr. v. Mangalore University Non-teaching Employees' Association and Ors. (2002 (3) SCC
Bihar State Electricity Board's case (supra) it was held as follows:
Further, an analysis of the factual score at this juncture goes to show that
the respondents appointed in the year 1966 were allowed to have due increments
in terms of the service conditions and salary structure and were also granted
promotions in due course of service and have been asked after an expiry of
about 14-15 years to replenish the Board exchequer from out of the employees'
salaries which were paid to them since the year 1979.
on this score the High Court observed that as both the petitioners have passed
the examination though in the year 1993, their entitlement for relief cannot be
doubted in any way. The High Court has also relied upon the decision of this
Court in the case of Sahib Ram v. State of Haryana (1995 Supp (1) SCC 18), wherein this Court in para 5 of the Report
observed: (SCC p.20) "5. Admittedly the appellant does not possess the
required educational qualifications. Under the circumstances the appellant
would not be entitled to the relaxation. The Principal erred in granting him
the relaxation. Since the date of relaxation the appellant had been paid his
salary on the revised scale.
it is not on account of any misrepresentation made by the appellant that the
benefit of the higher pay scale was given to him but by wrong construction made
by the Principal for which the appellant cannot be held to be at fault. Under
the circumstances the amount paid till date may not be recovered from the
appellant. The principle of equal pay for equal work would not apply to the
scales prescribed by the University Grants Commission.
appeal is allowed partly without any order as to costs."
The High Court also relied on the unreported decision of the learned Single
Judge in the case of Saheed Kumar Banerjee v. Bihar SEB (CWJC No. 710 of 1994
disposed of on 27.01.1995). We do record our concurrence with the observations
of this Court in Sahib Ram case (supra) and come to the conclusion that since
payments have been made without any representation or a misrepresentation, the
appellant Board could not possibly be granted any liberty to deduct or recover
the excess amount paid by way of increments at an earlier point of time. The
act or acts on the part of the appellant Board cannot under any circumstances
be said to be in consonance with equity, good conscience and justice. The
concept of fairness has been given a go-by. As such the actions initiated for
recovery cannot be sustained under any circumstances. This order, however, be
restricted to the facts of the present writ petitioners. It is clarified that
Regulation 8 will operate on its own and the Board will be at liberty to take
appropriate steps in accordance with law except, however, in the case or cases
which has/have attained finality.
Mangalore University Non-teaching Employees' case (supra) it was held as
Though the above discussion merits the dismissal of the Writ Petitions and the
denial of relief to the respondents, we are of the view that on the special
facts of this case, the employees of the University have to be protected
against the move to recover the excess payments upto 31.03.1991. When the
concerned employees drew the allowances on the basis of financial sanction
accorded by the Competent Authority i.e. the Government and they incurred
additional expenditure towards house rent, the employees should not be
penalized for no fault of there is. It would be totally unjust to recover the
amounts paid between the 1.4.1994 and the date of issuance oft he G.O. No. 42
dated 13.2.1996. Even thereafter, it took considerable time to implement the
G.O. It is only after 5th
March, 1997 the
Government acted further to implement the decision taken a year earlier.
orders regarding recovery were passed on 25.3.1997, as already noticed. The
Vice- Chancellor of the University also made out a strong case for waiver of
recovery upto 31.3.1997. That means, the payments continued upto March 1997
despite the decision taken in principle. In these circumstances, we direct that
no recovery shall be effected from any of the University employees who were
compelled to take rental accommodation in Mangalore City limits for want of accommodation in
University Campus upto 31.3.1997. The amounts paid thereafter can be recovered
in instalments. As regards the future entitlement, it is left to the Government
to take appropriate decisions, as we already indicated above. "High Court
itself noted that the appellants' deserve sympathy as for no fault of theirs,
recoveries were directed when admittedly they worked in the promotional posts. But
relief was denied on the ground that those who granted had committed gross
therefore, not accepting the challenge to the orders of reversion on the
peculiar circumstances noticed, we direct that no recovery shall be made from
the amounts already paid in respect of the promotional posts. However, no
arrears or other financial benefits shall be granted in respect of the
appeals are accordingly disposed of. No costs.