LexKUSHESWAR NATH PANDEY versus STATE OF BIHAR & ORS.
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[2013] 9 S.C.R. 593 KUSHESWAR NATH PANDEY v. STATE OF BIHAR & ORS. (Civil Appeal No. 6658 of 2013) AUGUST 5, 2013 [H.L. GOKHALE AND J. CHELAMESWAR, JJ.] A B 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. F 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 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. H Chandi Prasad Uniyal and Others vs. State of Uttrakhand and Others, (2012) 8 SCC 417 • cited. KUSHESWAR NATH PANDEY v. STATE OF BIHAR 595 Case Law Reference: (2000) 1 o sec 99 (2006) 11 sec 492 (2012) s sec 417 held applicable held applicable cited Para 7 Para 7 Para 9 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. 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. A B c 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
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