KUSHESWAR NATH PANDEYversusSTATE OF BIHAR & ORS.

                     [2013] 9 S.C.R. 593


               KUSHESWAR NATH PANDEY                               A
                               v.
                 STATE OF BIHAR & ORS.
              (Civil Appeal No. 6658 of 2013)
                      AUGUST 5, 2013                               B
     [H.L. GOKHALE AND J. CHELAMESWAR, JJ.]

      Service Law - Promotion - Time bound promotion -
Granted to appellant in 1998 - Promotion subsequently found
to be irregular as appellant had not passed promotional            C
examination prior thereto - Orders issued in 2009 for
cancellation of the promotion - Justification - Held: On facts,
not justified - The appellant was not at all in any way at fault
- It was a time bound promotion which was given to him and
some eleven years thereafter, the Government Authorities           D
woke up - Moreover, appellant had passed the required
examination subsequently in 2007 much before the
cancellation orders were issued in 2009 - Approach of the
Government authorities was totally unjustified.
                                                                   E
     The appellant was in service under the State of Bihar.
An order was issued by the Finance Department on
13.11.1998 granting him time bound promotion w.e.f. 1st
September, 1991. Subsequently it was found that this
promotion was irregular for not passing a promotional
                                                                   F
examination prior thereto and thereafter orders were
issued on 16.9.2009 and 5.10.2009 for cancelling this time
bound promotion. Aggrieved, the appellant filed writ
petition. A Single Judge of the High Court allowed that
writ petition holding that the promotion granted to the            G
appellant eleven years earlier was not because of any
fault or fraudulent act on the part of the appellant, and
therefore could not be cancelled. The respondents filed
appeal which was allowed by the Division Bench.

                              593                                  H
    594      SUPREME COURT REPORTS             [2013] 9 S.C.R.


A      In the instant appeal, the appellant pointed out that
  there was no fraud or misrepresentation on the part of
  the appellant; that the appellant was given a time bound
  promotion by the concerned Department and if at all the
  examination was required to be passed, he had passed
B it subsequently in 2007 much before the cancellation
  orders were issued in 2009.

          Allowing the appeal, the Court

      HELD: 1.1. The facts of the present case are clearly
C covered under the two judgments of this Court in the
  cases of Bihar State Electricity Board and Purushottam
  Lal Das wherein it has been held that recovery can be
  permitted only in such cases where the employee
  concerned is guilty of producing forged certificate for the
D appointment or got the benefit due to misrepresentation.
  (Paras 7, 10] [596-G-H; 597-A, E]
      1.2. The appellant was not at all in any way at fault. It
  was a time bound promotion which was given to him and
E some eleven years thereafter, the Authorities of the Bihar
  Government woke up and according to them the time
  bound promotion was wrongly given and then the
  relevant rules are being relied upon and that too after the
  appellant had passed the required examination. This
F approach was totally unjustified. The writ petition filed by
  the appellant will stand decreed as granted by the Single
  Judge. [Paras 10, 11] [597-E-G]
      Bihar State Electricity Board and Another vs. Bijay
  Bhadur and Another (2000) 10 SCC 99 and Purushottam Lal
G Das and Others vs. State of Bihar and Others (2006) 11 SCC
  492 - held applicable.

        Chandi Prasad Uniyal and Others vs. State of Uttrakhand
    and Others, (2012) 8 SCC 417 • cited.
H
 KUSHESWAR NATH PANDEY v. STATE OF BIHAR                   595


                     Case Law Reference:                         A
    (2000) 1o sec 99          held applicable         Para 7
    (2006) 11 sec 492         held applicable         Para 7
    (2012) s sec 417          cited                   Para 9     B
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6658 of 2013.
    From the Judgment and Order dated 19.09.2012 of the
High Court of Judicature at Patna in LPA No. 266 of 2011.
                                                                 c
    Nagendra Rai, Abhishek Kr. Singh, Shantanu Sagar,
Shashank Singh, Amrita Rai (for Chandra Prakash) for the
Appellant.
     Mohan Jain ASG, Ardhendumauli Kumar Prasad, D.K.
Thakur, Shashank Bajpai, M.S. Vishnu Sankar, D.S. Mahra for      D
the Respondents.
    The Judgment of the Court was delivered by
     H.L. GOKHALE, J. 1. Heard Mr. Nagender Rai, learned
senior counsel appearing for the appellant, Mr. Arijit Prasad,   E
learned counsel for the State of Bihar and Mr. Mohan Jain,
learned Additional Solicitor General for the respondent no.5.
    2. Leave granted.
     3. This appeal seeks to challenge the judgment and order
rendered by the Division Bench of the Patna High Court in        F
LP.A. No. 266 of 2011 dated 19.9.2012 whereby the Division
Bench reversed the judgment of the Learned Single Judge of
that High Court in case No. 4369 of 2010.
    4. The facts leading to this case are as under:
                                                                 G
    The appellant herein joined the service under the State of
Bihar on 5th May, 1979 and on 29th August, 1981, he was
promoted as a Correspondence Clerk. An order was
subsequently issued by the Finance Department on 13.11.1998
granting him promotion with effect from 1st September, 1991
                                                                 H
    596     SUPREME COURT REPORTS                 [2013] 9 S.C.R.

A   which was a time bound promotion. Subsequently it was found
    that this promotion was irregular for not passing a promotional
    examination prior thereto and therefore the orders were issued
    on 16.9.2009 and 5.10.2009 for canceling this time bound
    promotion.
B       5. Being aggrieved by that order, the appellant filed the
  above referred writ petition No. 4369/2010. Learned Single
  Judge of the High Court who heard the matter allowed that writ
  petition. He held that the time bound promotion granted to the
  appellant eleven years earlier was not because of any fault or
C fraudulent act on the part of the appellant, and therefore could
  not be cancelled. The Learned Single Judge allowed that writ
  petition and set aside the order of cancelling his promotion. It
  is also relevant to note that the appellant had passed the
  required examination in the meantime in 2007 and had retired
o on 31st May, 2009.
        6. Being aggrieved by that order, respondents herein, filed
  an appeal which has been allowed by the Division Bench. The
  Division Bench found that the promotion was not approved by
  the competent authority and passing of the Accounts
E examination was condition precedent and therefore the decision
  of the Government to cancel his promotion was a proper one.
  Being aggrieved by this judgment, the present special leave
  petition has been filed.
       7. Mr. Rai, learned senior counsel for the appellant points
F out that there was no fraud or misrepresentation on the part of
  the appellant. The appellant was given a time bound promotion
  by the concerned Department. If at all the examination was
  required to be passed, he had passed it subsequently in 2007
  much before the cancellation orders were issued in 2009. Mr.
G Rai relied upon two judgments of this Court in case of Bihar
  State Electricity Board and Another vs. Bijay Bhadur and
  Another reported in (2000) 10 SCC 99 and Purushottam Lal
  Das and Others vs. State of Bihar and Others reported in
  (2006) 11 sec 492 wherein it has been held that recovery can
H be permitted only in such cases where the employee
  KUSHESWAR NATH PANDEY v. STATE OF BIHAR                    597
             [H.L. GOKHALE, J.]
concerned is guilty of producing forged certificate for the         A
appointment or got the benefit due to misrepresentation.
     8. The learned counsel for the State of Bihar submitted that
under the relevant rules passing of this examination was
necessary. He referred us to the counter affidavit of the
respondent No.1 wherein a plea has been taken that under the        B
particular Government Circular dated 26.12.1985 the amounts
in excess are permitted to be recovered. He relied upon clause
0) of the Government Circular dated 1st April, 1980 to the same
effect.
     9. Mr. Jain, learned Additional Solicitor General appearing    C
for the Accountant General drew our attention to another
judgment of this Court in Chandi Prasad Uniya/ and Others
vs. State of Uttrakhand and Others reported in (2012) 8 SCC
417 and particularly paragraph 14 thereof which states that
there could be situations where both the payer and the payee        D
could be at fault and where mistake is mutual then in that case
such amounts could be recovered.
     10. In our view, the facts of the present case are clearly
covered under the two judgments referred to and relied upon
by Mr. Rai. The appellant was not at all in any way at fault. It    E
was a time bound promotion which was given to him and some
eleven years thereafter, the Authorities of theBihar Government
woke up and according to them the time bound promotion was
wrongly given and then the relevant rules are being relied upon
and that too after the appellant had passed the required            F
examination.
      11. In our view, this approach was totally unjustified.
Learned Single Judge was right in the order that he has passed.
There was no reason for the Division Bench to interfere. The
appeal is therefore allowed. The judgment of the Division Bench     G
is set aside. The writ petition filed by the appellant will stand
decreed as granted by the Learned Single Judge. The parties
will bear their own costs.
B.B.B.                                         Appeal allowed.      H