DEVENDRA SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this writ petition, the petitioners are Class III employees employed in the Tourism Department, Government of Bihar. They are aggrieved by order as contained in Annexure 4 being order dated 09-11-2000 issued by the Commissioner-cum-Secretary-cum-Director, Department of Tourism, Bihar whereby the time bound promotions granted to these petitioners without their passing the Accounts Departmental Examinations have been cancelled with a further direction that any amount that had been paid to them would be recovered. Counter affidavit is on record with rejoinder filed. With consent of parties, this writ petition has been heard for its final disposal at this stage itself.

(2.) The petitioners' stand is that, as would be evident from various contemporaneous documents, the stand of the Tourism Department itself was that the employees of the Tourism Department were not bound by Rule 157J of the Board's Miscellaneous Rules which made it obligatory on employees of the State Government in the, Secretariat and attached offices as well as Mufussil offices to pass departmental examinations in accounts before becoming eligible for promotion. In that view of the matter, the employees having been precluded from taking examinations because of the stand of the Department at the highest level itself, they cannot be made to suffer the consequences of such a wrong decision. On the other hand, on behalf of State, it is submitted that even a wrong committed by the State cannot be allowed to be perpetuated and continued. It must be set at right and any undue amount paid must be recovered.

(3.) Having considered the matter, in my view, both the submissions of the two sides are correct but they have been very broadly stated. The undisputed facts of this case would show that notwithstanding the notification issued by the Government through the Board of Revenue, the Department, at the highest level, was of the view that the employees of the Tourism Department were a separate cadre and the said notification or the Board's Miscellaneous Rules in that regard did not apply. This stand was clearly communicated by the Department to the Board of Revenue. The Board of Revenue opined to the contrary. The Department still continued with the same stand till ultimately accepting the views of the Board of Revenue, the impugned decision was taken. From this, it would be clearly established that the employees had no choice nor any option in view of the stand consistently taken by the Department. They were deprived of opportunity to take the Departmental Examinations on the ground that they were not so required. Now they are being told that the departmental head, the controlling authority took a wrong decision and that being so for that wrong decision, they must now suffer. In my view, this cannot be permitted. I am remanded on what Chief Justice Chagla said more than five decades back in the case of All India Groundnut Syndicate Limited v. Commissioner of Income-tax, Bombay City, 1954 AIR(Bom) 232