IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1766 of 2009 BASUKI NATH SHARMA, Son of Late Chura Ram Sharma, resident of Village-Shermari Bazar, Pirpatti, Police Station-Pirpatti, Post Office-Pirpatti, District- Bhagalpur. Versus 1.THE STATE OF BIHAR 2.Director, Secondary Education, Government of Bihar, Patna. 3.Regional Deputy Director of Education, Human Resources Department, Government of Bihar, Bhagalpur. ----------- 4 16/9/2009 Heard Mr. Tej Bahadur Singh, learned Senior counsel appearing on behalf of the petitioner and counsel for the State. Prayer in this writ application reads as follows:- “That this is an application for issuance of an appropriate writ or writs, for quashing the part of the order so far it relates to recovery of excess amount paid to the petitioner by way of selection grade scale, passed by Director, Secondary Education, Bihar bearing Memo No. 135 Legal dated 20th February 2007 which order has been passed by Director in compliance of the order of the Hon‟ble High Court dated 29.11.2006 in C.W.J.C. No.6731 of 2003. That it is further prayed that the Respondent No.1 be restrained from taking any step for recovery of the alleged excess amount paid to the petitioner with regard to the selection grade scale in view of the fact that the part of the order has already been set-aside by this Hon‟ble Court.” Mr. Tej Bahadur Singh, learned counsel in support of the aforementioned prayer would submit that while it may be true that the petitioner was not entitled for payment received by him, but then direction for recovery of excess amount paid to him, not on account of any misrepresentation made by the petitioner should not have been directed as is the purport of the impugned order. In 2 this context he would place reliance on the judgment of the Apex Court in the case of „Sayed Abdul Kadir Vs. State of Bihar & Ors‟ reported in 2009 (1) Supreme 163. From reading of the impugned order it would appear that the dispute with regard to ‘Lohar’ being not a schedule tribe came to be adjudicated way back by judgment of the Division Bench of this Court dated 12th August, 1993 in C.W.J.C. No. 10593 of 1992 wherein it was held that any person claiming Lohar by caste is not entitled for the benefit meant for Scheduled Tribes in terms of parliamentary declaration under "Scheduled Tribes Order 1950". Such judgment was infact also rendered in the case of the petitioner himself way back on 16th August, 1993 in C.W.J.C. No. 6966 of 1993, wherein it was held that:- "In this writ application, the prayer of the petitioners is that the respondents be directed to promote them on the post of Headmasters by treating them as members of Scheduled Tribe. 2. The petitioners are admittedly non-tribal but by caste they are „Lohar‟ (Black Smith). According to the learned counsel appearing for the petitioners since „Lohar‟ has been shown as one of the Scheduled Tribes under the Government Notification, therefore, they should be given the benefit of reservation by treating them to be members of that reserved category. This aspect of the matter has been considered in greater detail by a Bench of this Court in the case of Nityanand Sharma and another Vrs. The State of Bihar being C.W.J.C. No. 10593 of 1992 disposed of on 12th August 1993 to which one of us (G.C. Bharuka, J.) 3 was a member, wherein it has been held that simply by being a „Lohar‟ by caste a person can not claim the benefits of reservation meant for members of “Scheduled Tribe” in terms of the parliamentary declaration under the Scheduled Tribe Order, 1950. It has been held in that judgment that for claiming the benefit of a member of Scheduled Tribe not only one should be of the Scheduled Category but he must be necessarily a tribal as well. 3. In the above view of the matter I do not find any merit in this application. It is, accordingly, dismissed.” In presence of the aforesaid inter parte judgment between the petitioner and the State dated 16.8.1998 the petitioner was not entitled for his out of turn promotion as a S.T. employee but it appears that even after such judgment the petitioner had claimed for promotion in the junior selection grade and was given such promotion by order of Regional Deputy Director of Education, Bhagalpur Division on 27th January, 1994 by claiming the benefit of another judgment of this Court dated 23.12.1993, when in his case it was already decided by the Division Bench on 16th August, 1993 that he will not be entitled for promotion on the post of Headmaster by claiming to be the member of Scheduled Tribes category. The petitioner being bound by an interparte judgment could not have claimed his promotion in S.T. categories on the ground that the said issue had remained pending either before this Court or before the Apex Court and the petitioner obviously had suppressed the fact regarding dismissal of his writ 4 petition while drawing benefit of higher pay scale of the promotional post which he got only on the basis of claiming himself to be a member of Scheduled Tribes. It has to be noted that the order of promotion dated 29.1.2004 was passed in respect of seven teachers out of which petitioner alone was given promotion on the basis of an order of this Court dated 23.12.1993 treating him to belong to S.T. category. This however was detected even before the Supreme Court judgment dated 19.10.2006 in Civil Appeal No. 5488 of 2000 had cancelled the promotion of the petitioner by an order dated 20.6.2003 which reads as follows:- ^^fcgkj ek/;fed f'k{kk dk;kZy;] iVukA vkns'k Jh cklqdhukFk 'kekZ] lgk;d f'k{kd pEik nsoh ckfydk mPp fo|ky; csjekjh fijiSarh Hkkxyiqj tks yksgkj tkfr ds gS us xyr lk{; izLrqr dj {ks=h; mi f'k{kk funs'kd] Hkkxyiqj izeaMy Hkkxyiqj ds Kkikad 53&74 fnukad 27-1-94 }kjk ojh; dksVh dk osrueku izkIr dj fn;k ,oa lkFk gh o"kZ 1975 rd vuqlqfpr tkfr@vuq0tutkfr ds rS;kj jkT; Lrjh; ojh;rk lwph esa dzekd 73 ij vafdr djokus esa lQy gks x;aA tkpksijkar ik;k x;k fd Jh 'kekZ yksgkj tkrh ds gS ,oa yksgkj tkfr vuqlwfpr tu tkfr ds Js.kh esa ugha vkrs gSA Jh 'kekZ }kjk ekuuh; mPp U;k;ky; es-lh0MCyw0ts0lh0 la[;k 5999@93 Hkh nk;j fd;k x;k FkkA ftlesa mUgksaus vius dks vuqwlqfpr tu tkfr ds :i esa vkjf{kr dksVh esa ekuus dk nkok fd;k Fkk ftls ekuuh; mPp U;k;ky; us vkdj [kkfjt dj fn;kA mDr izlax esa dkfeZd ,oa iz'kklfud lq/kkj foHkkx ds ijke'kZ ds vkyksd esa foHkkxh; izksUufr lfefr dks fnukad 3-5-2003 ds izLrko la0 7 esa fy, x, fu.kZ; ij ljdkj ds vkns'kkuqlkj Jh cklqdhukFk 'kekZ lgk;d f'k{kd pEik nsoh ckfydk mPp fo|ky; cjekjh fijiSarh Hkkxyiqj dk uke 31-5-85 rd jkT; Lrjh; ojh;rk lwph ds dzekad 73 ls foyksfir fd;k tkrk gSA funs'kd Aek/;fed f'k{kkA 5 fcgkj] iVukA Kkikad 1309 iVuk] fnukad 20-6-2003 izfrfyfi& {ks=h; f'k{kk funs'kd] Hkkxyiqj izeaMy Hkkxyiqj dks lwpukFkZ ,oa vko';d dk;kFkZ izsf"kr mUgsa mDr vkns'k ds vfrfjDr funs'k fn;s tkrs gSA 1- os Jh 'kekZ ds fo:n~/k LFkkuh; Fkkuk esa bl vijkf/kd dk;Z gsrq izkFkfedh ntZ djkuk lqfuf'pr djsa ,oa d`r dkjokbZ ls dk;kZy; dks voxr djk;saA 2- Jh 'kekZ }kjk xyr <ax ls yh x;h izksuufr ls Hkqxrku gqbZ lEiw.kZ jkf'k dk vkdyu dj mudh olqyh dh dkjokbZ rhu ekg ds vUnj iqjk djsa ,oa d`r dkjokbZ dh lwpuk bl dk;kZy; dks nsA funs'kd Aek/;fed f'k{kkA fcgkj] iVukA** It is in this regard that this Court has to also appreciate earlier order of this Court dated 29.11.2006 passed in C.W.J. 6731 of 2003 wherein this Court had merely remitted the issue in respect of an order dated 20.6.2003 passed against the petitioner for both lodging F.I.R. as also making recovery of excess amount drawn by him while recording a categorical finding that he was not entitled for the benefit of higher pay scale on the ground of his being Schedule Tribe. This Court in that context in the order dated 20.11.2006 had recorded the following findings in the case of the petitioner:- “Considering the relevant facts and the law now laid down by the Apex Court in Civil Appeal No. 5488 of 2000 disposed of on 19th October, 2006 petitioner cannot be held entitled for the promotion which he received on the basis that he is a Member of the Scheduled Tribes. To that extent the prayer made in this writ petition has to be rejected. So far as other actions as contemplated in Annexure-1 are concerned, it is found that the concerned respondents failed to notice annexure-5 wherein it is mentioned that petitioner was being granted selection grade scale in view of order of the High Court dated 23.12.93 (Annexure-4). In view of such apparent mistake in not considering the relevant fact, it is deemed proper that in respect of other proposed actions as mentioned in annexure-1 the said annexure be set aside and the matter be remitted back to the Director, Secondary Education for taking a fresh decision 6 in the matter in accordance with law.” The impugned order, in fact, has been passed only in terms of the aforementioned direction given in the case of the petitioner wherein the Director Secondary Education having noted the entire facts and circumstances of the case had held as follows:- “vkosnd ds }kjk izLrqr rF; ,oa foHkkxh; vfHkys[kksa ls ;g Li"V gS fd {ks=h; mi f”{kk funs”d] Hkkxyiqj tks foHkkx ds ojh; inkf/kdkjh gSa dks dksbZ Hkh fu.kZ; ysus ds iwoZ ljdkj ds izkok/kkuksa dks /;ku esa j[k dj gh dkjZokbZ djuk pkfg, A lkFk gh vkosnd tks ljdkjh lsod gSa dks Hkh vfu;fer ykHk ysus ls cpuk pkfg, Fkk A ijUrq izoj.k osrueku izkIr djus esa lh/ks budk gh nks"k ekuk tkuk mfpr izrhr ugha gksrk vkSj ek= buds fo:) gh izkFkfedh ntZ djus dk vkns” nsuk vkSfpR; iw.kZ ugha gS D;ksafd bl gsrq rRdkyhu {ks=h; mi f”{kk funs”d Hkh lkeku :Ik ls nks"kh Fks A QyLo:Ik foHkkxh; Kkikad 1309 fnukad 20&6&03 ds ml va” dks jnn fd;k tkrk gS ftlds }kjk buds fo:) vijkf/kd dk;Z ds fy, izkFkfedh ntZ djus dk vkns” fn;k x;k Fkk A tgkW rd izoj.k osrueku dh Lohd`fr ds QyLo:I ljdkjh dks"k ls vfrfjDr jkf” izkIr djus dk iz’u gS bl laca/k es ;g vkns” fn;k tkrk gS fd pqafd ljdkjh dks"k ls fdlh Hkh ljdkjh lsod dks xyr Hkqxrku gsrq NqV ugha nh tk ldrh] buds }kjk izkIr vfrfjDr jkf” dh x.kuk djrs gq, vklku fdLrksa esa jkf” dh olqyh dh tk; A vkosnd dks izoj.k osrueku jnn dj fn;k x;k gS] ijUrq bUgsa fu;ekUrxZr ns; lsok dkyhu izksUufr ds ykHk ls oafpr fd;k tkuk mfpr ugh gS A vkosnd dh fu;qfDr ds vk/kkj ij fu;ekUrxZr lsok dky esa tks Hkh izksUur osrueku dk ykHk ns; gS bldh x.kuk {ks=h;] mi f”{kk funs”d }kjk djrs gq, bUgsa fu;ekUrxZr ns; ykHk miyC/k djkosaxs A” The submission of Mr. Singh, however, is that even when his writ application being C.W.J.C. No. 6900 of 1993 7 claiming promotion on the post of Headmaster by virtue of his being Scheduled Tribe was dismissed, but since the matter had remained pending before the Apex Court the petitioner was entitled to continue to draw such benefit. In the opinion of this Court, such argument seems to be one of desperation, inasmuch as, there was no interim order staying operation of the order dated 16th August, 1993 passed in the case of the petitioner. It would be also difficult for this Court to accept that the order dated 29.1.1994 granting higher grade of promotional post to the petitioner w.e.f. 1.4.1993 by the R.D.D.E was given to him in view of order of the Division Bench dated 23.12.1993 in C.W.J.C. No. 5729 of 1991 and its analogous cases. It has to be noted that the said writ petition came to be decided on 23.12.1993, whereas, writ petition of the petitioner claiming benefit of Scheduled Tribes had already been dismissed by this Court on 16th August, 1993 and the said order was never stayed. Consequently, it must be held that the order dated 27th January, 1994 was obtained by the petitioner by suppressing the order passed by this Court in his writ petition on 16th August, 1993 and by placing reliance on the judgment of the Division Bench in other cases which was again to be made applicable in the case of the petitioner. Consequently, benefit drawn by the petitioner on the basis of order of promotion dated 27th January, 1994 must be held to be obtained by him by suppression of fact and consequential misrepresentation. Reliance placed by learned counsel for the petitioner 8 in the case of Sayed Abdul Kadir (Supra) is also wholly misplaced, inasmuch as, in paragraph 26 of the said judgment it was held that the authorities were also not aware of the fact as with regard to interpretation of Fundamental Rule 22 (C) and the Finance Department also took the view that Fundamental Rule 22 (C) was not applicable and the fixation was made on the basis of a bonafide mistake. Such is not the case here, inasmuch as, there is definite finding recorded by the authorities that it was the petitioner who had get his promotion made by suppressing the order against him, dismissing the writ petition and rejecting his claim for promotion on the ground of his being a candidate of Scheduled Tribe category. In that view of the matter, any benefit drawn by the petitioner after inter-party judgment dated 16th August, 1993 including one by the petitioner on the strength of the order dated 27th January, 1994, must be held to be wholly inadmissible and therefore recovery of such amount from the petitioner is fully permissible as was held by the Full Bench of this Court in the case of „Ram Binod Singh & Ors. Vs. Bihar State Electricity Board & Ors.‟ reported in 2007 (3) PLJR 398. The Full Bench has, in fact, gone to hold that recovery can definitely be ordered from a person who was never entitled for the same. There can be no dispute that the petitioner did not belong to Scheduled Tribe at any point of time and took advantage of a judgment in a case of other persons by suppressing earlier judgment of his own case. It is this aspect of the matter which would not only make the petitioner 9 disentitled for claiming salary on the enhanced pay scale but also make him liable to refund the excess amount to which he was never entitled. The submission of Mr. Singh, learned counsel for the petitioner that the impugned order directing refund and/or recovery of excess amount is bad as it is in teeth of the order of this Court that 20.11.2006 inasmuch similar direction dated 20.6.2003 had been set aside in C.W.J.C. No. 6731 of 2003 has to be also noted for its being rejected inasmuch a contempt petition filed by the petitioner, M.J.C. No. 684 of 2007 has been dismissed by this Court on 14.5.2008, by recording that:- "Heard learned counsel for the petitioner and learned counsel for the State. Petitioner is aggrieved by order dated 20th of February, 2007 contained in Annexure-7 on the ground that the said order is in violation of the order of the writ Court dated 29.11.2006 contained in Annexure-1. It appears that the order contained in Annexure-7 has been passed by concerned authority on account of order of remand contained in Annexure-1. Whether the said order is legal and valid or not cannot be examined in contempt jurisdiction. This proceeding is therefore dropped. Petitioner will be at liberty to challenge the order contained in Annexure-7 through the appropriate proceeding in accordance with law." Infact this Court had given an order of open remand which did not preclude the Respondents from passing the 10 impugned order. The petitioner should be, in fact, thankful to his stars that the Director, Secondary Education has by the impugned order modified his earlier order dated 20.6.2003 by recalling the direction for institution of First Information Report against the petitioner for duping the authorities and drawing higher salary to which he was never entitled. The petitioner can expect no further leniency in the matter, inasmuch as, any one taking advantage or privilege of Scheduled Caste or Scheduled Tribe even though he otherwise belongs to general category, is not only liable to be dealt severely but also for being removed from service by way of misconduct. Thus, considering the case of the petitioner from all possible angles, this Court would find no flaw in the impugned order and consequently, this writ application must be and is hereby dismissed. Abhay Kumar (Mihir Kumar Jha, J.)