Dwarika Nath Pandit vs State Of Jharkhand & Ors. on 1 September, 2011

    W.P. (S) No. 1096 of 2006
  In the matter of an application under Article 226 of the Constitutional of India.
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        Dwarika Nath Pandit                              ...   ...         Petitioner
                                      Versus
        1. State of Jharkhand
        2. Chief Conservator of Forest, Ranchi
        3. Divisional Forest Officer,
           Research and Evaluation Division, Ranchi        ...    ... Respondents
                                 -----
        For the Petitioner             : Mr. Anil Kumar, Advocate
        For the State                  : Mr. Srijit Choudhary, G.A.
                                 -----

                                  PRESENT

                     HON'BLE MR. JUSTICE R.R. PRASAD

By Court :   Heard the parties.

                  Learned counsel appearing for the petitioner submits that

      the petitioner was initially appointed on Class-IV post in the

      Department of Forest in the year 1964. Subsequently, the petitioner

      was promoted to the post of Assistant Clerk in the year 1982.

      Thereafter, in the year 1995, 1st time bound promotion was given to

      the petitioner w.e.f. 12.7.1992 but that was provisional. When the

      matter was sent before the Higher Authority i.e. respondent no. 3 for

      its confirmation, order dated 30.8.1995 granting 1st time bound

      promotion to the petitioner was not only cancelled by the respondent

      no. 3 vide its Office Order No. 83 dated 14.11.2005 (Annexure-4) but it

      was also recorded that monetary benefit given to the petitioner on

      account of 1st time bound promotion be adjusted from his retiral

      benefit.

                  Being aggrieved with that order, the petitioner has moved

      to this Court challenging the order dated 14.11.2005 (Annexure-4) to

      be bad.

                   Learned counsel for the petitioner submits that so far as

      the matter relating to cancellation of 1st time bound promotion is

      concerned, the petitioner would not be pressing this issue but he be

      given liberty to raise the issue relating to grant of 2nd time bound
 promotion, as the petitioner under the relevant rule was entitled to

have 2nd time bound promotion on completion of 25 years of service

and since he had already completed 25 years before his retirement, he

is entitled to get 2nd time bound promotion.

            Learned counsel further submits that so far as the order

relating to recovery of the amount said to have been drawn by the

petitioner in excess is concerned, that is quite illegal in view of several

decisions rendered in this regard either by this Court or by the

Hon'ble Supreme Court, as the petitioner had been given 1st time

bound promotion without there being any misrepresentation on his

part.

            Learned counsel in this regard referred to the cases of

Saheb Ram Vs. State of Haryana {(1995) 1 S.C.C. 18} and Bihar

State Electricity Board Vs. Bijay Bahadur {(2000) 1 S.C.C. 99}.

            I do find substance in the submission advanced on behalf

of the petitioner so far as it relates to adjustment of the excess amount

drawn from the retiral benefits.

            The petitioner though was not entitled to have 1st time

bound promotion, he had been given 1st time bound promotion but

without there being any misrepresentation on his part. Hence the

question does arise as to whether it is within the competence of the

authority to realise the excess amount drawn from the pensionary

benefit? Similar issue fell for consideration before the Hon'ble

Supreme Court in the case of Bihar State Electricity Board (supra),

wherein it was held as under:-

                      "We do record our concurrence with the
                observation of this Court in Sahib Ram Case and come
                to conclusion that since payments have been made
                without any representation or misrepresentation, the
                appellant-Board could not possibly be granted any
                liberty to detect or recover the excess amount paid by
                way of increment at the 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 of justice."
                 Under the circumstances, part of the order dated

   14.11.2005

(Annexure-4), under which the excess amount drawn was

sought to be adjusted from the retiral dues of the petitioner, is hereby

quashed.

So far as the matter relating to cancellation of 1st time

bound promotion is concerned, I am not giving any opinion in view of

the submission advanced on behalf of the petitioner.

However, the petitioner would be at liberty to file a

representation relating to grant of 2nd time bound promotion on the

ground of completion of 25 years of service before the Divisional

Forest Officer, Research and Evaluation Division, Van Bhawan Doka,

Ranchi (respondent no. 3) within a period of two weeks from today so

that the respondent no. 3 may take decision over it within a period of

eight weeks thereafter.

With this observation and direction, this writ application

stands disposed of.

(R.R. Prasad, J.)

Jharkhand High Court, Ranchi
Dated the 1st September, 2011
N.A.F.R./AKT