IN THE HIGH COURT OFJHARKHAND AT RANCHI
W.P. (S) No. 2163 of 2003
With
W.P. (S) No. 2907 of 2003
With
W.P. (S) No. 2399 of 2003
Angilina Soren ...... ...... ........ Petitioner ( in W.P. (S) No. 2163 of 2003)
1. Md. Afsar Shaikh
2. Jyotindra Nath Sarkar
3. Amar Kumar Das
4. Alpana Chatterjee ...... ..... ....... Petitioners (in W.P. (S) No. 2907 of 2003)
1. Subodh Kumar Saha
2. Kashi Prasad Ram
3. Maniruddin Ahmed
4. Shri Murlidhar Bhagat
5. Shri Prahlad Bhagat
6. Gopal Chandra Roy
7. Vijay Kumar Jaiswal ..... ...... ....... Petitioners (in W.P. (S) No. 2399 of 2003)
--Versus--
1. The State of Jharkhand
2. The Director, Primary Education, Jharkhand, Ranchi
3. District Education Officer, Pakur, Cum-Sub DivisionalEducation Officer, Pakur
4. District Superintendent of Education, Pakur
5. District Accounts Officer, Pakur
6. Treasury Officer, Pakur ..... ....... Respondents (in W.P. (S) No. 2163 of 2003)
1. The State of Jharkhand
2. Secretary, Primary Education, Govt. of Jharkhand, Ranchi
3. Regional Deputy Director of Education, Dumka
4. Director, Primary Education, Govt. of Jharkhand, Ranchi
5. The Accountant General, Jharkhand, Ranchi
6. Senior Accounts Officer, Accountant General Office, Ranchi
7. The Deputy Commissioner, Pakur
8. The District Education Officer, Pakur
9. Headmaster, Middle School, Manglabandh, Pakur... Respondents (in W.P. (S) No. 2907 0f 2003)
1. State of Jharkhand
2. Secretary, Primary Education, Jharkhand
3. Regional Deputy Director of Education, Dumka
4. Director, Primary Education, Dumka
5. Accountant General, Jharkhand
6. Senior Accounts Officer, Acctt. General Office, Jharkhand, Ranchi
7. Deputy Commissioner, Pakur
8. District Superintendent of Education, Pakur
9. District Education Officer, Pakur ........ ........ ...Respondents (in W.P. (S) No. 2399 of 2003)
....
CORAM: THE HON'BLE MR. JUSTICE AMARESHWAR SAHAY
For the Petitioner : Mr. Rajiv Ranjan, Naveen Kr.Ganjhu (WPS No.2399 of 03)
Mr. Anil Kr. Sinha, Sr. Adv., Ananda Sen (WSP No.2399 of 03)
For the State/ : Mr. A. Allam, Sr.S.C.-II,Ms.Nehala Sharmin (WPS No.2163 of 03)
Respondents Mr. Rabindra Prasad, JC to GP-IV (WPS No.2907 of 03)
C.A.V. On 06.10.2009 Delivered On 13.10.09 .
03/ 13.10.2009
The issue involved in all the three writ petitions are same and
similar and as such they have been taken together and are being
disposed of by this common order.
2 W.P (S) No.2163 of 2003 With
W.P.(S) No.2907 of 03 & 2399 of 03
The facts in short in W.P.(S) No. 2163 of 2003 are:
that the petitioner was appointed as Assistant Teacher in the
District of Pakur by issue of order as contained in Annexure -1 dated
5.5.1980. She was subsequently promoted to the post of
Headmistress vide order as contained in Memo No. 17362-65 dated
23.8.1985 (Annexure-2). The petitioner has challenged the orders
contained in Annexure – 4 to 6 to the writ petition, whereby on the
basis of an Audit report, it has been ordered that since the pay of the
petitioner was wrongly fixed on a higher scale and as such the
amount paid to her in excess be recovered.
The facts in short in W.P.(S) No. 2907 of 2003 are:
that the petitioner No.1 was appointed as Assistant
Teacher in the Matric trained scale on 14.11.1977 and he joined
the said post on 1.12.1977. Petitioner No.2 joined as Assistant
Teacher in Matric un-trained scale vide order of appointment
dated 8.11.1971 and he was subsequently allowed Matric trained
scale on 9.11.1974. Petitioner No.3 joined as Assistant Teacher
in Matric trained on 4.2.1975 and he was given Matric trained
scale from 30.4.1976. Petitioner No.4 joined as Assistant Teacher
on 2.6.1976 in Matric trained scale w.e.f. 1.4.1977. The
petitioner No.1 was given Senior Scale by District Superintendent
of Education, Sahibganj on 1.12.1989. Petitioner No. 2 was given
Senior Scale w.e.f. 1.4.1986. Subsequently, all the petitioners
were given I.A. trained scale. An audit was conducted by the Sr.
Accounts Officer, office of the Accountant General, Ranchi, and
after verifying the records regarding promotion of the
petitioners, a report was submitted observing that the
promotion given to the petitioners to the post of Assistant
Teacher in the Intermediate trained scale was not legal, and
3 W.P (S) No.2163 of 2003 With
W.P.(S) No.2907 of 03 & 2399 of 03
accordingly, recommendation was made for recovery of the
amount paid to them in excess. The grievance of the petitioners
is that on the basis of said audit report, the District
Superintendent of Education, Pakur has directed all the Drawing
& Disbursing Officers within the District of Pakur to comply the
recommendation made in the audit report and recover the
amount which has been paid in excess to different Teachers
including these petitioners.
The facts in short in W.P.(S) No. 2399 of 2003 are:
that the petitioners were initially appointed as Teachers in
Primary scales in Matric trained scale in the District of
Santhalpargana. It is stated that the District Education
Establishment Committee, Pakur, in its meeting dated 2.3.1997
considered the case of the petitioners for promotion to the post
of Headmasters and recommended their cases for promotion to
the said post in various schools within the District of Pakur. On
such recommendation, made by the Establishment Committee,
the petitioners were promoted to the post of Headmasters in
different Middle Schools w.e.f. 1.4.1996. According to the
petitioners, their promotion were duly accorded approval by the
District Education Establishment Committee. The grievance of
the petitioners is that all of sudden on the basis of audit report
conducted by Senior Accounts Officer, Office of the Accountant
General, Ranchi, it was observed that the promotion of the
petitioner to the post of Headmasters was not legal and valid,
accordingly, recommendation was made for recovery of the
amount paid to them in excess. Pursuant to the recommendation
made by the Office of the Accountant General, the District
Superintendent of Education vide letter dated 24.12.2002,
directed all the Drawing & Disbursing Officers within the District
4 W.P (S) No.2163 of 2003 With
W.P.(S) No.2907 of 03 & 2399 of 03
of Pakur to comply the recommendation made in the audit report
and recover the amount which was paid to the petitioners in
excess to different teachers including these petitioners.
The question involved in all the three writ petitions are as to
whether on the recommendation made in the audit report, can there be
recovery of any amount said to have been paid in excess to the
petitioners by way of salary. Similar matter came up before the Single
Bench of this Court in W.P.(S) No. 2451 of 2003. In that case also, on
the basis of the audit report of the Office of the Accountant General,
promotion of that writ petitioner as Headmaster was held to be wrongly
given and an order for recovery of the amount of salary paid in excess
was made. A Single Bench of this Court by order dated 25.6.2009, held
that the audit report of the office of Accountant General is a mere
suggestion, and it is made for awakening the senses of the respondent-
authorities so that upon holding proper enquiry, necessary action can
be initiated. The learned Single Judge also held that the authority
straightway implemented the report given by the office of Accountant
General without giving any opportunity of being heard to the concerned
persons. The order for recovery of the salary allegedly paid to the
petitioner in excess was quashed in that case. Another Single Bench of
this Court in W.P.(S) No. 1481 of 2003, W.P.(S) No. 3045 of 2003,
W.P.(S) No.3668 of 2003 and W.P.(S) No. 4782 of 2003, also held that
since the order of recovery of the amount is punitive in nature, and
therefore, the principles of natural justice need to be complied with.
A full Bench of this Court in the case of Smt. Normi Topno
Vrs. State of Jharkhand & Ors., reported in [2008 (1) 381 J.C.R.]
has also held that any order causing prejudice to a person cannot be
passed without giving him/her an opportunity of hearing. The full
Bench after considering the decision of Hon’ble Supreme Court has held
in paragraph 42 of its judgment, as follows:
5 W.P (S) No.2163 of 2003 With
W.P.(S) No.2907 of 03 & 2399 of 03
“it is no doubt true, the Supreme Court held that
when the promotion is ab initio void, then on that basis,
recovery can be made. It is also true that the power is
vested with the State to recover the excess payment
which was given wrongly or by mistake. But, where the
promotion is said to be ab-initio void or the excess
payment was said to be made on the basis of wrong
calculation or due to the mistake committed in the
department, then, it has to be found out as to how the
promotion could be held to be ab-initio void and how
there was miscalculation or mistake and if it is so, by
whom it was committed and all these things have to be
verified only through the inquiry by giving proper
opportunity to the person concerned, who is likely to be
affected by the conclusion of the inquiry. The conclusion
without any inquiry or finding that there is a pecuniary
loss to the Government due to the misconduct or mistake
of pensioner even without giving opportunity to the
person concerned, would certainly cause prejudice to the
said person.”
In the present three writ petitions also, the orders for recovery
of the amount paid to the petitioners in excess have been passed
without any notice to show cause or a chance of being heard to the
petitioners, and in their cases also principles of natural justice has been
violated.
Therefore, it appears that the present writ petitions are fully
covered by the orders passed in different writ petitions, as well as by
the judgment of the Full Bench of this Court in the case of Smt. Normi
Topno Vrs. State of Jharkhand & Ors. (Supra).
6 W.P (S) No.2163 of 2003 With
W.P.(S) No.2907 of 03 & 2399 of 03
Accordingly, the order as contained in Annexure -6 dated
28.3.2003 issued by the District Superintendent of Education in W.P.(S)
No. 2163 of 2003, the order/letter No. 521 dated 10.5.2003 as
contained in Annexure- 10 issued by the District Superintendent of
Education , Pakur as well as the order/Memo No. 277 as contained in
Annexure -8 dated 28.3.2003, issued by the District Superintendent of
Education, Pakur in W.P.(S) No. 2399 of 2003 so far it relates to the
recovery of any amount already paid to the petitioners on the ground
that it was paid to them in excess are, hereby, quashed.
The three writ petitions stand allowed to the extent indicated
above.
(AMARESHWAR SAHAY, J.)
SI/-