“The State respondents could not have demanded the refund of the excess payment made on account of their illegal promotions”, this remarkable stand was forwarded by Hon’ble Sikkim High Court, in a single judge bench chaired by Hon’ble Justice Mr Bhaskar Raj Pradhan, in the writ appeal case of Ganesh Bhandari & ors. V. State of Sikkim & ors, [WP(C) No. 24 of 2017].
The petitioners were appointed as Graduate Teachers on 04.03.2003 and 01.03.2003 on coterminus basis under HRDD. It is the petitioners’ case that pursuant to an advertisement dated 04.06.2014, published in Sikkim Express on 08.06.2014, they applied for the posts of Post Graduate Teachers through direct recruitment. It is their case that they fulfilled all the criteria required by the advertisement and thus, they applied in the “prescribed application forms” for the said posts. After they received their promotion orders, the petitioners joined their service on 20.05.2015 and they have worked there continuously. However, on 04.07.2017, the impugned office orders issued by the respondent no. 3, were received by them cancelling their promotions with retrospective effect and repatriating them to their respective old posts as Graduate Teachers. They were also directed to refund the excess payment made on account of their promotion.
The writ petition alleging violation of petitioners’ fundamental rights guaranteed under Article 14, 16, 19 and 21 as well as Article 300A of the Constitution of India, has been preferred by the two petitioners who have been issued office orders no. 278/HRDD/ADM and 279/HRDD/ADM by which the Human Resource Development Department, had cancelled their promotion orders both dated 14.05.2015 with retrospective effect. By the impugned office orders, they were also repatriated to their respective schools as Graduate Teachers and directed to refund any excess payment made on account of their promotion. Pursuant thereto, the petitioners were issued show cause notice, directing them to show because why their coterminous service should not be terminated and why inquiry should not be initiated against them for concealing the facts.
After examining all the submissions, arguments and evidences forwarded by the councils, the Hon’ble SC observed that, “Besides the error of judgment of the petitioners, it is also apparent that both the Commission as well as the State respondents have been grossly irresponsible and wanting. It is an admitted fact that the petitioners have rendered their service during the period they served in the promotional posts of Post Graduate Teacher (Hindi) in their respective schools. Had it been a clear case of concealment of facts committed by the petitioners, which although alleged by the State respondents have not been proved, the issue would have been different. The allegation of concealment of facts would in any way not hold much water as the State respondents have thought it fit to regularize the petitioners’ co-terminus service inspite of issuance of the impugned show cause notice.”
The bench further added that, “…the State respondents could not have demanded the refund of the excess payment made on account of their illegal promotions. However, it is apparent that there has been a loss of financial resources from the State exchequer due to the follies of the Commission and the State respondents. This court is of the opinion that it should be left to their wisdom to realize the amount from their erring officers, if found guilty. The writ petition is partly allowed in the above terms and disposed.”