Ram Naresh Singh Vs.
State of Bihar & Ors.
[Civil Appeal No.
2792 of 2012 (Special Leave Petition (C) No.22656 of 2010]
O R D E R
appeal is directed against the judgment and order passed by the High Court of
Judicature at Patna in Civil Writ Petition No.10478 of 2005 dated 3.3.2010. By the
impugned judgment and order, the High Court has rejected the Writ Petition
filed by the appellant herein.
facts in nutshell are: The appellant was appointed on 16.02.1976 as Basic Health
Worker (`BHW' for short) by respondent no.4 and was posted at Primary Health
Centre, Mahua, District Vaishali, Bihar.
working as Basic Health Worker, the appellant had made a representation on
15.11.1991, inter alia, requesting the respondents herein to convert his post of
BHW to a non-field position, namely to a clerical post due to his ill-health.
On receipt of the said representation, respondent no.3 herein had directed the respondent
no.4 to accept the representation so filed and pass necessary orders. Pursuant to
the direction so issued, respondent no.4 had passed an order dated 30.12.1991,
thereby, converting the post of BHW to the post of a non-field worker, namely,
a clerical post.
the appellant was working on the aforesaid post, a show cause notice dated 15.10.1996
had been issued by respondents, inter alia, directing the appellant to show
cause as to why the post so converted should not be cancelled and the appellant
should not be reverted to his original post, namely, BHW. It appears that the appellant
had replied to the said show cause notice by his letter dated 23.10.1996. In spite
of the receipt of the said reply, the respondents had not done anything in the matter
for the reasons best known to them. Thereafter, yet another show cause notice came
to be issued on 12.01.2000, that is, after four years from the date of the first
show cause notice. Even the said notice came to be replied by the appellant by his
letter dated 09.06.2000. In spite of receipt of the said reply, the
respondents, once again, had not chosen to pass any orders pursuant to their
show cause notices.
respondents had also issued a third show cause notice dated 6.11.2004 and a fourth
show cause notice on 22.03.2005, inter alia, directing the appellant to show
cause as to why the post that he was holding, namely clerical post should not
be cancelled and he should not be reverted to the post of BHW and also for
recovery of the excess salary paid to the appellant for the period during which
he was working on the clerical post. The appellant, after receipt of the show cause
notices, had replied to the same vide his letter dated 12.05.2005. After the receipt
of the said reply, the respondents have now chosen to pass the order dated
17.06.2005, cancelling the clerical post that was offered to the appellant and further
for recovery of the excess amount of salary received by him. Aggrieved by the
said order, the appellant had approached the Writ Court.
Writ Court had directed that the matter be placed before a larger Bench in view
of the conflicting decisions of the same Court.
Division Bench, after considering the merits of the Writ Petition, has rejected
the same. That is how the appellant is before us, in this appeal.
learned counsel for the parties to the lis.
counsel appearing for the appellant, would contend that the respondents ought not
to have passed the order of recovering the excess of salary paid to the
appellant when he has actually discharged the functions of a clerk in the respondent's
establishment. Further, it is stated that the appellant had not obtained the clerical
post by playing fraud, mis-representation or coercion on the respondents and since
the respondents had acted upon the representation filed by the appellant, they should
not be allowed to recover the excess salary paid to the appellant. In aid of his
submission, the learned counsel has drawn our attention to the observations made
by this Court in the case of Purushottam Lal Das & Ors. Vs. State of Bihar
& Ors.,(2006) 11 SCC 492.
contra, learned counsel appearing for the State of Bihar and its functionaries,
would submit that the appellant was not entitled to occupy the post of a clerk,
since the appellant was appointed primarily as a BHW. It is also brought to our
notice that the pay scales of the two cadres are totally different and, therefore,
the respondents on a sympathetic consideration ought not to have permitted the appellant
to work in a non--field post, namely, a clerical post. That is how the learned
counsel justifies the orders passed by the respondents dated 17.06.2005.
second issue canvassed by learned counsel appearing for the appellant, in our view,
is no more res integra, in view of the observations made by this Court in the
case of Purushottam Lal Das & Ors. (supra) and insofar as the first issue is
concerned, in our opinion, the respondents at the earliest opportunity had initiated
appropriate proceedings for cancellation of the appointment that was offered to
the appellant and on a later date had also issued a notice informing the appellant
that while cancelling the appointment that was offered to the appellant, they
would also recover the excess of salary paid to the appellant. The appellant, being
aggrieved by the said order dated 17.06.2005, had approached the Writ Court. Further,
the appellant has retired from the service after attaining the age of superannuation,
some time in the year 2011.
our opinion, insofar as the period between 17.06.2005 and till the appellant
attained the age of superannuation, the respondents are entitled to recover the
excess of salary paid to the appellant for the reason that the respondents had taken
effective steps to cancel the appointment that was offered to the appellant and,
further to recover the excess of amount paid to the appellant while he was
working in a clerical cadre.
as the earlier period is concerned, we cannot find fault with the appellant for
the reason that he had only made a representation before the respondents bringing
to their notice his illness and other physical disabilities to perform his functions
as BHW. That representation of the appellant had been sympathetically considered
by the respondents and, accordingly, they had permitted the appellant to work in
the clerical post. Since, the appellant did not obtain a clerical post either by
playing fraud or mis--representation or by exerting pressure, the respondents
are not entitled to recover any excess salary paid to the appellant from the date
of conversion of his post till the date of passing the cancellation order dated
these observations and directions, the appeal is partly allowed. No costs.
(ANIL R. DAVE)