JUDGMENT
Amareshwar Sahay, J.
Page 2650
1. The prayer of the petitioner in this writ application is for quashing of the order dated 04/09/1999, contained in Annexure-6 to this writ application whereby the District Superintendent of Education, Singhbhum East at Jamshedpur, whereby by rejecting the representation of the petitioner he cancelled the promotion given to the petitioner with retrospective effect and ordered to recover the excess amount paid to him.
2. It appears that on the basis of the decision taken by the District Education Establishment Committee, the petitioner was granted B.A. trained scale by issue of memo No. 3947 dated 03/07/1993 with effect from 01/12/1985. It also appears that the District. Superintendent of Education without following the due procedure and without recommendation of the District Establishment Committee, passed an order on 30/06/1995 granting B.A. trained scale with retrospective effect, i.e. from 01/04/1983. The District Superintendent of Education had no jurisdiction to take a decision with regard to the promotion of the teachers. On such grounds Annexure-6 cancelling the promotion giving B.A. trained scale with retrospective effect, was issued.
3. The main grievance of the petitioner is that though the B.A. trained scale was granted to the petitioner with retrospective effect but the same was not done on account of misrepresentation or at the instance of the petitioner and, therefore, the order as contained in Annexure-6 for recovery of the amount paid in excess is illegal. In support of his submission, the learned Counsel for the petitioner has relied on a decision of the Supreme Court in the case of Sahib Ram v. State of Haryana and Ors. reported in 1995 Supp. (1) SCC 18.”
4. A counter affidavit has been filed on behalf of Respondent No. 2 wherein it has been stated that the said decision for recovery of the excess amount by cancelling the promotion of the petitioner, was taken by the District Establishment Committee in the light of the decision of High Court passed in CWJC No. 1006/1998 (R) wherein it was held that if any adverse order is passed against the petitioner then they are liable to refund the amount received by them in pursuance of grant of higher scale/promotion for the simple reason that they were not granted the benefit for the period that they actually did not work.
5. The aforesaid judgment of this Court passed in CWJC No. 1006/1998 (R) has been annexed as Annexure- 4/1 to this writ application. From perusal of the said judgment it appears that several writ petitions were filed by the different petitioners Page 2651 challenging the order passed by the District Establishment Committee whereby grant of B.A. trained, B.Sc. trained or I.Sc. trained scale to them with retrospective effect were cancelled and direction for recovery of the excess amount was passed.
6. The High Court after hearing the parties, allowed the said writ application only on the ground that the principle of natural justice was violated since those persons were not given any opportunity to show cause or a chance of being heard before the said order cancelling their promotion was passed against him. The High Court set aside the said order cancelling the promotion of the writ petitioners and for recovery of the excess amount and directed the writ petitioners to file their show causes before the District Superintendent of Education within a time frame and the District Superintendent of Education was directed to place the matter before the District Establishment Committee for a fresh decision in the matter within a period of two months. In the said judgment it was specifically stated that in case any adverse order was passed against the petitioners, then they shall be liable to refund the amount received by them in pursuance of grant of higher scale/promotion for the simple reason that they were granted benefit for the period that they actually did not work.
7. Pursuant to the order of the High Court the petitioner also filed his show cause and on consideration of the representations/show cause filed by the petitioner, the impugned order contained in Annexure-6 was passed by the District Establishment Committee, cancelling the promotion of the petitioner given with retrospective effect and directing recovery of the excess amount paid to him during the period he did not actually work.
8. From the decision of the Supreme Court passed in the case of Sahib Ram (supra) cited by the learned Counsel for the petitioner, it appears that in the case before the Supreme Court the facts were quite different. In that case the appellant before the Supreme Court was not having the requisite qualification and he was not entitled to any relaxation but even then he was given the benefit of revised scale of pay and there was no misrepresentation by the appellant but as a matter of fact because of the wrong construction made by the Principal, the said benefit was given to him and the appellant thereafter worked also on the higher scale of pay, i.e. on promotional post. The Supreme Court in such a situation ordered that there should not be any recovery of the amount paid to him. The aforesaid decision does not apply in the facts and circumstances of the present case because in the case before the Supreme Court the petitioner had actually worked for the period for which higher scale was paid to him whereas in the present case the petitioner was given promotion with retrospective effect and he was paid the monetary benefit for the period for which he actually did not work at all. Accordingly, the petitioner cannot take the benefit of the decision of the Supreme Court in the case of “Sahib Ram” (supra).
9. Since the impugned order (Annexure-6) was passed in pursuance to the order of this Court passed in CWJC No. 1006/1998 (R) and, therefore, I see no reason to interfere with the impugned order contained in Annexure-6.
10. Accordingly, having found no merit, this writ application is dismissed. There shall be no order as to costs.