http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

CASE NO.: Appeal (civil)  4386 of 2006

PETITIONER: Purshottam Lal Das & Others

RESPONDENT: The State of Bihar & Others

DATE OF JUDGMENT: 10/10/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

(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, 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

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. (2004 (2) SCC  105), 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 (1995 Supp.(1)  SCC  18), 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.  (2002 (3) SCC 302).

       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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

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 (1995 Supp (1) SCC 18),  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:  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

                  "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 upto 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 upto  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 instalments. 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.