- (1.) The present petition has been preferred against an order, dated 10th June, 2009 (Annexure 5 to the Memo of the petition), passed by the respondents, whereby promotion given to the petitioners has been withdrawn with a further order for recovery of the excess salary drawn by the petitioners. Promotion was given to the petitioners in the year 1999 with effect from 1995. The promotion given to the petitioners have been withdrawn after long lapse of time vide the aforesaid office order dated 10th June. 2009. Counsel for the petitioners submitted that the promotion, which was given by the respondents in the year 1999 with effect from 1995, has been withdrawn in the year 2009 without giving any notice or any opportunity of being heard, as stated in the para 14 of the memo of the petition. Had an opportunity been given to the petitioners they could have point out that there is no illegality in grant of promotion and payment of salary. It is also submitted by the counsel for the petitioners that once payment of salary is made by the respondents without any fault of the petitioners, there can not be order of recovery passed by the respondents. The counsel for the petitioner has relied upon the decision rendered by this Court in Abhimanyu Gope v. State of Jharkhand & others,2006 4 JLJR 483. Counsel for the petitioner has also relied upon the decision of this Court dated 8th February, 2010 in W.P. (S) No. 264 of 2010.
(2.) Counsel for the respondents submitted that the promotion given to the petitioners were not in accordance with law and hence there is no illegality in withdrawing the same vide order dated 10th June, 2009 (Annexure 5 to the memo of the petition) and the order of recovery passed in the impugned order is also in consonance with law.
(3.) Having heard both sides and looking to the facts and circumstances of the case, I, hereby, quash and set aside the order dated 10th June, 2005, passed by the respondents, mainly for the following facts and reasons: (I) Petitioners were appointed as Tracers with the respondents in the year 1990. Thereafter, the petitioners were given promotion to Junior Selection Grade in the year 1999 with effect from 1995. (II) After the promotion, petitioners were paid salary of junior selection grade on the post of Tracer. Thereafter petitioners worked honestly, sincerely, diligently and to the satisfaction of the respondents. No objection was ever raised by the respondents for several years thereafter. More over, neither there is any allegation of any fraud played by the present petitioners nor there is any allegation by the respondents of any misrepresentation made by the present petitioners for getting the promotion. (III) It further appears from the facts of the case that purportedly on 10th June, 2009, an order has been passed by the respondents (Annexure 5 to the memo of the petition), wherein it has been held by the respondents that the promotion given in the year 1999 with effect from 1995 to the petitioners were against law and therefore, said promotion of grant of junior selection grade have been withdrawn and the order of recovery of the salary has also been passed in the impugned order. This order has been passed without giving any notice to the petitioners. Further, the petitioners have not been given any opportunity of being heard. Thus, the impugned order is in gross violation of the principles of natural justice as it ought to be considered by the respondents that whenever salary of any employee is to be reduced or when his promotion is to be withdrawn, especially when it is given long time back from the date of the withdrawal, at least an opportunity of being heard should have been given to that employee. In the present case, promotion was given to the petitioners more than a decade before the date of withdrawal of the promotion vide the impugned order. No notice or opportunity of being heard was given to the petitioners and therefore, the nature and the manner how the grant of junior selection grade to the petitioner was withdrawn is de-hors the provisions of law. (IV) More over, it appears that there is also an order of recovery of the excess salary, which the petitioners were getting pertaining to their promotion to Junior Selection Grade. The respondents should keep in mind that in the light of the decision in Abhimanyu Gope v. State of Jharkhand & others,2006 4 JLJR 483, when there is no allegation of fraud played by the petitioners or when there is no allegation of any misrepresentation by the petitioners, in case the promotion given to the petitioners is withdrawn, order of recovery of the enhanced salary can not be passed by the respondents. This order of recovery is also bad in the eye of law.;