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Judgment
Pramath Patnaik, J
 In W.P.(S) No.2982 of 2010
In the accompanied writ application, prayer has been made for quashing of office order dated 29.03.2010 (Annexure-7) whereby the promotion
granted to the petitioners in B.Sc. Trained scale on 7th July, 1992 and 17th July, 1992 has been cancelled and further prayer has been made for
issuance of writ of mandamus commanding upon the respondents not to recover the amount from the salary of the petitioners on account of grant of
B.Sc. Trained scale in terms of impugned order of cancellation dated 29.03.2010.Â
The factual matrix in brief is that in pursuance to advertisement for appointment of Assistant Teachers in Primary/Middle Schools under District
Superintendent of Education, Gumla against vacant and sanctioned posts, petitioners applied for the said posts and after following the due procedure,
the names of the petitioners were recommended by the District Education Establishment Committee for appointment. Accordingly, petitioner no.1 was
appointed as Assistant Teacher in Matric Trained Scale though he had qualification of M.Sc., B.Ed at the time of appointment and joined on
24.04.1988 in Government School, Raikera in the district of Simdega. In view of the vacancy and having possessed the requisite qualifications, the
petitioner no.1 was considered by the respondents for grant of B.Sc. Trained scale with effect from the date of joining. After completion of 12 years
of services, the petitioner no.1 was granted Senior Selection grade. Similarly, petitioner no.2 was appointed as Assistant Science Teacher being
untrained having B.Sc qualification. After completion of training, the petitioner no.2 has been given B.Sc Trained scale on 17th July, 1992. While
enjoying the aforesaid scale, a complaint was lodged by one similarly situated person and on the basis of said complaint, documents were sought for by
the respondents from the petitioners for verification and after such verification no irregularity was found. But to the utter surprise and consternation,
impugned order dated 29.03.2010 was issued by cancelling the promotion order of the petitioners dated 7th July, 1992 and 17th July, 1992 vide
Annexure-7 to the writ application. Being aggrieved by the aforesaid impugned order, the instant writ application has been filed under Article 226 of
the Constitution of India for redressal of their grievances.Â
Learned counsel for the petitioners has strenuously urged that the impugned order dated 29.03.2010 as contained in Annexure-7 is illegal and void
being violative of article 14 and 16 of the Constitution of India. Learned counsel further submits that the respondents could not have taken away the
vested right accrued in violation of principles of natural justice since in the instant case no notice of show cause was issued prior to issuance of
impugned order. It has further been submitted that 1993 Rule cannot be made applicable retrospectively so as to take away accrued right and benefit
as has been decided by the Hon’ble High Court as well as Hon’ble Apex Court. In order to butress the submissions, learned counsel for the
petitioners has referred to the decisions as reported in (2002) 3 JCR 273 (Jhr) (Chitranjan Prasad Verma Vs. State of Bihar & Ors.), 2008 (1) JLJR
230 (Sanjay Vishwakarma @ Sanjay Kumar & Ors. Vs. The State of Jharkhand & Ors), 2017 (1) JBCJ 401 (Nil Kantha Mondal Vs. State of
Jharkhand & Ors.) and (2013) 12 SCC 580 (Kusheswar Nath Pandey Vs. State of Bihar And Others) Paragraph nos.8, 9 & 10.
In W.P.(S) No.2059 of 2010Â Â Â Â Â Â Â Â
The aforesaid writ application has been filed praying interalia for quashing and setting aside office order dated 29th March, 2010 passed by the
District Superintendent of Education, Simdega (respondent no.5) pertaining to cancellation of pay scale granted to the petitioner in Graduate Trained
Pay Scale on 01.08.1992 and a direction for recovery of the excess amount. Further prayer has been made commanding upon the respondents to pay
the Science Graduate Trained Pay Scale without any interruption.Â
The facts in brief is that the petitioner was appointed as Assistant Teacher by office order dated 14.04.1988. Subsequently, the petitioner was
granted B.Sc untrained pay scale. After passing of the teacher training examination on 09.06.1992, the petitioner was granted B.Sc Trained pay scale
vide office order dated 01.08.1992.While continuing in the aforesaid scale, suddenly vide office order dated 29.03.2010 passed by the respondent no.5,
the B.Sc Trained pay scale granted to the petitioner on 09.06.1992 has been cancelled vide impugned order as contained in Annexure-7 to the writ
application. Being aggrieved by the said impugned order and left with no other alternative, efficacious and speedy remedy the instant writ application
has been filed under Article 226 of the Constitution of India for redressal of grievances of the petitioner.
Learned counsel for the petitioner has submitted with vehemence that action of the respondent no.5 in passing the impugned order is wholly without
jurisdiction apart from being in breach of principles of natural justice as at no point of time prior to passing of the impugned order dated 29.03.2010 any
opportunity of being heard was given to the petitioner. Learned counsel for the petitioner further submits that Bihar (now Jharkhand) Taken Over
Elementary School Teachers Promotion Rules, 1993 could not have been applied to the case of the petitioner particular when the petitioner was
appointed in the year, 1988 and he was granted B.Sc Trained Pay Scale on 09.06.1992. Learned counsel for the petitioner further submits though the
Promotion Rule, 1993 has been given effect to from 1986 but the pay scale in the Science Graduate scale, which was given to the petitioner on
01.08.1992 could not be permitted to be unsettled at this distance of time. Therefore, the action of the respondents in passing the impugned order
amounts to colourable exercise of power apart from being barred by the principle of estoppel.
Controverting the averments made in the writ applications, counteraffidavit has been filed by respondent no.4 in W.P.(S) No.2982 of 2010 and
respondent no.5 in W.P.(S) No.2059 of 2010. In both the counter-affidavit, it has been submitted that the petitioners were appointed as Assistant
Teacher and not as science teachers, hence without getting the appointment letter against science teacher they cannot be declared as science teacher
and get the benefit of pay scale of science teacher. Hence, the prayer made by the petitioners to consider as science teacher and allow them to get
the benefits is illegal. The promotion against science graduate granted to the petitioners is out of turn promotion without following the department rule
of promotion and without approval of District Education Establishment Committee as such not tenable. It has further been submitted that the
petitioners after accepting the appointment in matric trained/untrained pay scale managed to get the benefits in graduate science trained pay scale
without approval of District Education Establishment Committee. Moreover, the petitioner cannot claim the scale of science teacher by having
M.Sc./B.Sc, B.Ed degree as they applied against matric trained/untrained scale. The petitioners after joining in matric trained/untrained scale by
suppressing the said fact managed to get the undue advantage which was found illegal. Therefore, the District Education Establishment Committee
decided to cancel the same illegal benefits and as such annexure-7 was issued.Â
Reply to the counter-affidavit has been filed by the petitioners in W.P.(S) No.2982 of 2010 wherein it has been submitted that on perusal of the
advertisement as contained in Annexure-1 to the writ application as well as Annexure-A to the counter-affidavit, it is apparent from clause 1B that the
requisite qualification required is I.Sc., B.Sc. trained and admittedly petitioners were science graduate and applied for the post against the science
teacher quota and so far as petitioner no.1 is concerned it is evident from Annexure-3 itself that he was appointed as Science Assistant Teacher as
has been quoted by District Superintendent of Education in his letter while giving further enhancement of scale on completion of 12 years and so far
as petitioner no.2 is concerned, it is well evident from Annexure-4 itself i.e. the appointment letter in Science Quota category which means the
petitioner no.2 has been appointed against the Science Quota as Assistant Teacher. Moreover, the rule 1993 cannot be applicable since petitioners
were promoted prior to coming into the existence of 1993 rule. During pendency of the writ application, notification dated 25.09.2010 has been issued
by the District Superintendent of Education vide Annexure-8 to the petitioners’ reply to the counter-affidavit dated 23.01.2014 by which the
petitioner no.1 has been given as Science Graduate Trained Scale w.e.f. 01.04.1997. Therefore, the stand of the respondent is that petitioner no.1 not
appointed against Science quota is falsified in view of Annexure-8.
A reply to the counter-affidavit has also been filed by the petitioner in W.P.(S) No.2059 of 2010 wherein the petitioner states that right from the
beginning of his service career he has been treated as a science teacher which is evident from his service book which has been annexed to the
counteraffidavit filed by the respondent no. 5. The petitioner further states that he has been given promotion as B.Sc trained teacher vide office order
dated 28.09.2010 which is evident from Annexure-9 to the rejoinder and also evident from Form B, which is meant for fixation of the pay scale
pursuant to 6th Pay Revision duly signed by the District Account Officer and counter signed by non-else than the District Superintendent of
Education-respondent no.5 (Annexure-10 to the rejoinder).Â
After hearing learned counsel for the respective parties at length and on perusal of the records, this Court is inclined to interfere with the impugned
order dated 29.03.2010 as contained in Annexure-7 in W.P.(S) No.2982 of 2010 and W.P.(S) No.2059 of 2010 in view of the reasons stated
hereinbelow:-
(I) Admittedly, the petitioners, in both writ applications, were appointed as Assistant Teachers and they have been granted B.Sc. Trained Pay Scale in
the year, 1992. After enjoying the aforesaid scale for the pretty long time, the petitioners have been visited with impugned orders for cancellation of
promotion without any issuance of notice of show cause which cannot be sustained in the eye of law and in view of breach of principle of natural
justice.Â
(II) It is trite law that accrued right cannot be taken away retrospectively by the respondent in passing the impugned order dated 29th March, 2010 by
invoking Jharkhand Taken Over Elementary School Teachers’ Promotion Rules, 1993 since prior to coming into force, the petitioners were
granted B.Sc. Trained Scale. Therefore, impugned order is not sustainable in the eye of law. It would be out of place to refer the decision of the
Hon’ble Apex Court in the case of State of Punjab and Others Vs. Rafiq Masih (white washer) and Others as reported in 2015 (4) SCC 334
wherein the Hon’ble Apex Court has been pleased to interalia enunciated the legal proposition on the issue of recovery which is reproduced
hereinbelow:-
It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly
been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready
reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group ‘C’ and Group ‘D’ service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.Â
(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even
though he should have rightfully been required to work against an inferior post.Â
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to
such an extent, as would far outweigh the equitable balance of the employer’s right to recover. Â
In view of the reasons stated in forgoing paragraphs, the impugned order dated 29.03.2010 vide Annexure-7 passed in W.P. (S) No.2982 of 2010
and W.P. (S) No.2059 of 2010 are hereby quashed and set aside. Resultantly, the writ petitions stand allowed. In view of the final order passed in
W.P. (S) No.2059 of 2010, I.A. No.3647 of 2010 also stands disposed of.Â