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High Court Patna, quashes the order of trial court in Pursuant to the Recommendation of the IVth Pay Revision Committee, issued by the Finance Department,Govt.Of Bihar

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CASE TITTLE: BIKRAMA SINGH And Others V THE STATE OF BIHAR  And Others

CASE NO: Civil Writ Jurisdiction Case No.3455 of 2012

ORDER ON:16-04-2024

QUORUM: JUSTICE RAJESH KUMAR VERMA

FACTS OF THE CASE:

The present writ application has been filed for Quashing the order dated 26.12.2011 Under the signature of the Chief Engineer, Central Design and Research, Water Resources Department, Govt. Of Bihar,The facts leading to the present petition in question is that, The petitioners were initially appointed as Correspondence clerk in the Irrigation Department. Pursuant to the Recommendation of the IVth Pay Revision Committee,issued by the Finance Department, Govt. Of Bihar by which the time bound Promotion scheme was introduced. Thereafter, the State Govt. Issued an order making certain amendments for grant of time bound promotion. By this Amendment. It provides That promotion in the selection made shall be made by passing The accounts examination by a clerk. Clause 9 of the amended Rules provides that the passing Of accounts examination was made a condition precedent for Time bound as well as selection grade promotion, Only change brought about by This Resolution was that the promotion under the senior Selection grade scale is to be granted on completion of 12 years Of service but the earlier structure of junior selection grade scale Remained the same.Again the pay scale at the pattern of Central Pay Scale was revised by the State Govt. issued by the Finance Department, Govt. Of Bihar. By this resolution, the Govt. Has Decided that until and unless the new policy decision is Determined by the Govt., the promotion of the employees who Are in the scale of junior selection grade/senior selection Grade/super time selection grade shall be made against need Based post. the petitioner No.1 has been granted Promotion in the Junior Selection Grade and Senior Selection Grade Scale and he has also been Granted the revised Pay Scale in light of Finance Department Resolution.Petitioner No.2 was granted Junior Selection Grade Scale and Senor Selection Grade Scale by office order and he has been granted promotion as Head Clerk.The petitioner No.1 has already passed the accounts Examination  and the petitioner No.2 also and the case of the petitioners and others in the Central Design Organization was considered by the Chief Engineer and at the time of consideration, there were only three Posts of Head Assistant the Department has granted promotion On the first post to one Raj Ballabh Ram against the need based Post of Head Clerk and against the post of Head Assistant Earlier one Jawahar Lal has filed writ application claiming Therein that he was senior to the petitioner No.1 on the basis of Date of appointment in service cadre and accordingly he was Promoted to the post of Head Clerk but he has been reverted to The post of clerk. The Hon’ble Court  has directed the Chief Engineer to consider the grievance of the petitioner, the case of Jawahar Lal Was considered by the Department and he was placed just above The petitioner No.1 and due to that third post of Head Assistant On which the petitioner No.1 was promoted earlier was occupied By Jawahar Lal then the petitioner No.1 has filed a Representation before the Chief Engineer stating therein that he Has been granted promotion as Head Assistant in light of the Clarification made by the Finance Department, Govt. Of Bihar And he has requested that he should be promoted as Head Assistant.Thereafter, one Ram Shankar Singh has also filed a Writ application with a prayer That the petitioner No.1 is junior to him and he has been granted promotion as Head Clerk from 01.01.1996 so Ram Shankar Singh may also be granted the promotion as Head Clerk this Hon’ble Court has directed the Chief Engineer to consider the request of the petitioner (Ram Shankar Singh) in accordance with law and. By the impugned order as contained the date of promotion of the petitioner No.1 has been shifted from  as Head Clerk and petitioner No.2 as Head Clerk and Sri Jawahar Lal has been promoted as Head Clerk hence this petition.

CONTENTIONS OF PETITIONER:

The counsel for the petitioner submits that before issuing the present impugned order no notice to show cause or opportunity of hearing was given to the petitioners and present impugned order has been passed is in clear violation of principle of natural justice, equity and fair play. In the aforesaid, the scale of the petitioner has been enhanced not on account of any misrepresentation made on behalf of the petitioner. Further, The learned counsel for the petitioner has relied upon the judgment of the Hon’ble Apex Court in the case of State of Punjab Vs. Rafiq Masih reported in AIR 2015,Further the counsel contented that  petitioner No.1 has been retired from the service w.e.f. 31.01.2010 and petitioner No.2 has also been retired from the service on 31.03.2008 and the order impugned was passed after the retirement of the petitioners i.e. on 26.12.2011.

CONTENTIONS OF THE RESPONDENT:

The Learned counsel for therespondent submits that earlier the seniority of clerk cadre was maintained by the Parent Department i.e. Water Resources Department, Govt. of Bihar, Patna later on it is directed to maintain seniority of Muffasil Cadre maintenance on the basis of their respective first joining in this case and as per direction, the first provisional gradation list was notified for the muffasil cadre by inviting representation against any discrepancies. Petitioner No.1 was given Jr. Selection Grade and Sr. Selection Crade on the basis of passing the Accounts Examination .the counsel further contended that  By order of the Finance Department the compulsion of passing the accounts examination was relaxed to those employee who have been promoted or their promotion due before 01.09.1983. Some of the employees moved before this Hon’ble Court by which they were challenged their position in gradation list and effective date of marking for Head Clerk and Head Assistant. Both the writ petitioners were heard and respective order was passed by this Hon’ble Court and thereafter the respondents were taken steps and the whole case to gradation list prepared  was deeply reviewed in the light of their 1st joining in the cadre as per direction of aforesaid respective orders, by which the compulsion of passing the accounts examination was relaxed to the employee who has been promoted or their promotion due before 01.09.1983. After review the whole matter the entire previous gradation list was rearranged by canceling all previous orders issued vide different letters and dates, the petitioner No.1 was placed on gradation 43(ka) and marked for head clerk and the petitioner No.2 was placed on Gradation 22 and marked for Head Clerk Learned counsel for the State submits that the petitioners filed a fresh writ petition bearing for quashing the Office order and the same was disposed of  with the certain direction, The answering respondents fixed the date for hearing and also the Department informed to the petitioners to ensure their presence on fixed date. Learned counsel for the State submits that the respondents after considering all facts, the Chief Engineer, Central Design and Research, Water Resources Department, Govt. of Bihar, Patna passed a reasoned order after clarifying all the points which is impugned in the present writ petition and observed that the office order will be effects and the counsel further contended that there is no illegalities or irregularities in the present case.

COURTS ANALYSIS AND JUDGEMENT:

The Court Having heard the parties and have gone through the material available on the record,finds that the respondents have not levelled any allegation against the petitioners herein that they have misrepresented or committed fraud for the purpose of wrong fixation of pay, grant of grand pay, in fact the respondents have conceded that wrong pay fixation was done on account of their mistake and according to the principle of law settled in the case of State of Punjab Vs. Rafiq Masih (Supra) no recovery can be affected from the petitioners , the court further observed that, since they have already attained the age of superannuation prior to passing of the order recovery and secondly since there have been no misrepresentation or fraud committed by the petitioners leading to wrong pay fixation/wrong grant of grade pay though the respondent authorities are precluded from making any recovery from the petitioners. This Court further is of the view that the present case of squarely covered by the judgment rendered in the case of State of Punjab Vs. Rafiq Masih (Supra) especially since the petitioners have already superannuated and secondly it is mistake of the respondents admittedly, which is excess payment to the petitioners herein on account of wrong fixation of pay. Court opined it  is left with no option in the facts and circumstances of the present case but to quash the order dated 26.12.2011 and directed the respondent authorities to act accordingly and pay all the consequential benefits to the petitioners within a period of eight weeks from the date of receipt/production of a copy of this order. Accordingly, this writ application is allowed.

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Judgement reviewed by: Sowmya.R

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“Legal Battle Unfolds: Roshanara Club Seeks Possession, Court Directs DDA to Devise Club Management Scheme”

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Title: SH. MANISH AGGARWAL vs. THE ESTATE ORRICER & ORS

Citation: W.P.(C) 14739/2023

Coram: HON’BLE CHIEF JUSTICE & HON’BLE JUSTICE TUSHAR RAO GEDELA

Decided on: 9-11-23

Introduction:

In this case, the petitioner has approached the court seeking various reliefs. The petition challenges the constitutional validity of Section 3 of The Public Premises (Eviction of Unauthorized Occupants) Act, 1971. It also disputes the sealing and locking of Respondent No. 4 Club’s premises on September 29, 2023, based on an order from September 27, 2023, alleging it to be unconstitutional and violative of fundamental and statutory rights. Additionally, the petitioner seeks to declare the sealing as void ab initio, citing contravention of rule 7 of the mentioned Act. The petition further calls for the quashing of a Draft Policy to run the club, asserting that it goes against the statement made by the Additional Solicitor General in a previous order. The petitioner requests the court to grant any other necessary relief deemed fit in the circumstances of the case.

Facts:

The case involves Roshanara Club Limited (RCL), established in 1922, operating on land allotted under lease deeds by the Secretary of State for India and the Delhi Development Authority (DDA). The extended lease lapsed on December 31, 2017. RCL sought renewal, but after a series of communications, an eviction notice was issued on April 12, 2023. RCL filed a writ petition challenging the eviction notice with specific reliefs. The learned Single Judge, while noting the challenge to the eviction notice was not maintainable, issued an interim direction restraining coercive action against RCL solely based on the expired lease. The order allowed RCL to pursue statutory remedies against the eviction notice. The DDA appealed, and an order on June 2, 2023, directed the Principal District Judge to decide the appeal without being influenced by the High Court’s order. The case is scheduled for further proceedings on September 13, 2023.

Judgement analysis:

In the given case, the Division Bench of the Court did not grant relief to Roshanara Club. Instead, it directed the Delhi Development Authority (DDA) to devise a scheme for running the club and did not hand over possession to the ex-management of the club. Subsequently, a Special Leave to Appeal (SLP) was filed before the Hon’ble Supreme Court, seeking restoration of possession to Roshanara Club, but the relief was not granted.

Following these events, a new petition was filed by certain club members. However, the court, considering that it is already dealing with the issue of running the club and that a related writ petition is pending, decided not to grant interim relief in the present petition. The court noted that the DDA is in the process of finalizing a scheme for the smooth running of the club, and accordingly, rejected the prayer for interim relief. The case is scheduled for further proceedings along with LPA No. 497/2023 on December 7, 2023.

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“IBC Moratorium: Court Affirms Legality of Tax Proceedings During Resolution, Dismisses Petitioner’s Challenge”

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Title: PLATINO CLASSIC MOTORS INDIA PVT.LTD vs. DEPUTY COMMISSIONER OF CENTRAL TAX AND EXCISE AND ORS.

Citation: WP(C) NO. 7997 OF 2023

Coram: JUSTICE DINESH KUMAR SINGH

Decided on: 20-10-23

Introduction:

In this writ petition, the petitioner, a dealer of BMW cars in Kerala, challenges the orders identified as Exhibits P-7, P-8, P-9, and P-10. The legal dispute arises from an application filed by the Federal Bank of India under Section 7(4) of the Insolvency and Bankruptcy Code, 2016 (IBC) for initiating the corporate insolvency resolution process against the petitioner. The National Company Law Tribunal, Cochin, admitted the application on March 8, 2021, as per Exhibit P-1. Following the admission, an Interim Resolution Professional (IRP) was appointed to manage the affairs of the petitioner. However, the resolution plans submitted by the applicants were rejected by the Committee of Creditors. Since no resolution plan was accepted, the Committee of Creditors decided to seek a directive from the National Company Law Tribunal, Cochin, for the liquidation of the petitioner’s company. The present writ petition challenges the orders related to these proceedings.

Facts:

In this case, an order of liquidation was issued on September 30, 2022, pursuant to Section 33 of the Insolvency and Bankruptcy Code (IBC) by the National Company Law Tribunal, Cochin. The Interim Resolution Professional (IRP) was appointed as the Liquidator, initiating a moratorium under Section 33(5) of the IBC. The petitioner’s Liquidator received claims from the first respondent, consisting of five items, in response to a public notice.

The petitioner contends that orders (Exhibits P-7 to P-10) forming the basis of the five claims were issued after the commencement of the moratorium on March 8, 2021, and argues that the petitioner was not given an opportunity to present and contest the case.

The respondent’s counsel argues that notice was indeed issued to the petitioner, a reply was filed, and the authorized representative was heard. The respondent disputes the claim that the petitioner was not heard during the issuance of orders in Exhibits P-7 to P-10. Additionally, the respondent contends that ongoing assessment proceedings and adjudication under Section 14 of the IBC are not barred. The assessment orders (Exhibits P-7 to P-10) were allegedly completed in compliance with statutory requirements, and the Official Liquidator’s absence during the finalization of the assessment should not invalidate these orders. The court considers these arguments in its evaluation of the case.

Judgement analysis:

The judgment in this case clarifies that Section 14 of the Insolvency and Bankruptcy Code (IBC) does not prohibit the finalization of assessment and adjudication proceedings related to taxes during the resolution process. The court refers to both Section 14 of the IBC and various judgments from High Courts and the Supreme Court to support this interpretation.

The court specifically notes that while there is a moratorium on the recovery of tax dues after the admission of the reference, there is no legal barrier to completing assessment and adjudication proceedings. Upon reviewing the impugned orders (Exhibits P-7 to P-10), the court finds that the petitioner was issued a notice, responded to it, and was heard during the finalization of these orders. Therefore, the court dismisses the petitioner’s argument that the absence of the Official Liquidator during the hearing makes the orders invalid.

The judgment concludes by dismissing the writ petition and instructs the Official Liquidator to consider the five claims of the petitioner in accordance with the law.

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