D.N.PATEL - (1.) D.N.PATEL
(1.) THE present writ petition has been preferred, mainly challenging the order, passed by respondent no.5 dated 14th July, 2010, which is at Annexure 3 to the memo of petition, whereby, the 2nd time bound promotion, which was given earlier on 19th October, 1995 and similar other benefits, which were given on 9th August, 1999, have been withdrawn and the order of recovery has been passed by the respondents. Further prayer has been made for quashing the order dated 31st May, 2010, which is at Annexure 3/A to the memo of petition, issued by the Secretary, Department of Finance, Government of Jharkhand, whereby, the 1st time bound promotion given to the petitioner with effect from 1st April, 1981 has been shifted to 12th April, 1982 and the 2nd time bound promotion, which was given to the petitioner on 29th October, 1995, has been cancelled. Learned counsel for the petitioner submitted that the petitioner joined the services as Stores Chowkidar with the respondents on 28th October, 1964 and thereafter, he was appointed to the post of Correspondence Clerk, on which post he served honestly, diligently, sincerely and to the satisfaction of the respondents. Thereafter, the petitioner was given, on regular intervals, as per law, the promotions i.e. 2nd time bound promotion with effect from 29th October, 1995 and the benefit under Assured Career Progression Scheme with effect from 9th August, 1999 and there was no mis -representation on the part of the petitioner nor any fraud was played by the petitioner. With open eyes, both the benefits were given to the petitioner by the respondents, which were approved by the senior officers. After getting 2nd time bound promotion, a period of more than one and half decade was lapsed and abruptly an order has been passed on 14th July, 2010, withdrawing both the benefits and order of recovery has also been passed, without giving any notices and even without giving an opportunity of being heard to the petitioner. Learned counsel for the petitioner has relied upon the following decisions and on the basis of the aforesaid decisions, it is submitted by the learned counsel for the petitioner that it has been decided by a Full Bench of this Court as well as the Hon'ble Supreme Court that once the benefit is given to the employee, without there being any mis -representation or fraud on the part of the employee and even though there is mistake in granting those benefits by the respondent -State authorities, the amount already paid, cannot be recovered. It is further submitted by the learned counsel for the petitioner that in paragraph no. 6 of the counter affidavit, it has been submitted by the respondents that there was a sheer mistake on the part of the respondents and, thus, there is no allegation of fraud or mis -representation on the part of the petitioner. As such, in view of the aforesaid decisions, the order of recovery cannot be passed by the respondents and, hence, the order at Annexure dated 14th July, 2010, passed by respondent no.5 deserves to be quashed and set aside.
(2.) LEARNED counsel for the petitioner has placed reliance upon the following decisions, in support of his contention: (i) 1995 Supp. (1) SCC 18 (Sahib Ram v. State of Haryana and ors.) (ii) 2007(4) JCR 1 (Jhr.)(FB) (Dro Dudh Nath Pandey v. State of Jharkhand and ors.) 2009(1) JCR 189 (Jhr.) (Sita Ram Sanchi v. State of Jharkhand and ors.);