SUPREME COURT OF INDIA
Purshottam Lal Das and Others
Vs
State of Bihar and Others
Appeal (Civil) 4386 of 2006 (Arising 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 Pasayat and L. S. Panta, JJ)
10.10.2006
ARIJIT PASAYAT, J.
Leave granted.
In 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.
Factual 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 responded. Ultimately 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 also dismissed.
In 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.
Learned counsel for the respondent-State and its functionaries supported the judgment
submitting that the courts below had noted the reasons for directing reversion.
Even 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.
LIC of India v. Sushil 2006 (2) SCC 471 and Ram Saran v. I.G. of
Police, CRPF 2006 (2) SCC 541.
The 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. The 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.
So far 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, 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. .
In Bihar State Electricity Board's case (supra) it was held as follows:
"9. 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. It is 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 , 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.
However, 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. The
appeal is allowed partly without any order as to costs."
10. 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."
In Mangalore University Non-teaching Employees' case (supra) it was held as
follows:
"12. 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 up to 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. Final 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 up to 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 installments. 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 irregularities.
While, 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
concerned period.
The appeals are accordingly disposed of. No costs.