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2004 DIGILAW 920 (PAT)

Triloki Sharan Sinha v. State Of Bihar

2004-09-08

RADHA MOHAN PRASAD

body2004
Judgment 1. In this writ petition, the petitioner is aggrieved by non-payment of his entire post-retiral dues alongwith statutory interest. 2. Petitioners case, in brief, is that on 25.2.1992 he submitted application for voluntary retirement due to his ill health. which was accepted vide office order dated 21.12.2002 (Annexure-2) with effect from 26.2.1992, but his post-retiral dues have not been paid. 3. A counter affidavit has been filed on behalf of District Superintendent of Education, Patna (Respondent no. 4) in which it is stated that the petitioner was wrongly granted promotion in the Graduate trained Scale/Headmaster vide memo no. 1649 dated 23.2.1989 by the then D.S.E. and on being posted as Headmaster he received the scale of Headmaster with effect from 1.4.1976 to 1992. It is further stated that the District Education Establishment Committee in its meeting held on 10.3.1989 cancelled the illegal promotion and consequently direction vide Annexure-B & C was given to all concerned authorities to recover the amount illegally drawn and to deposit the same in the Treasury. It is contended that the petitioner instead of complying with the orders of the authorities absented himself from duty since 25.2.1992. As regards the office order dated 21.12.2002 (Annexure-2) by which petitioners application for voluntary retirement was accepted with effect from 26.2.1992, it has been stated that the same has been issued without approval of the District Education Establishment Committee. Thereafter the case of the petitioner was placed before the District Education Establishment Committee and as per direction of the Committee office order dated 21.12.2002 (Annexure-2) has been cancelled and voluntary retirement of the petitioner has been accepted with effect from 26.2.1992 in Matric trained scale vide Annexure-E and it has been directed that a sum of Rs.1,35,384.45 illegally drawn by the petitioner shall be adjusted from the amount of gratuity and pension payable to him. It is further contended that thereafter Respondent no. 4 took immediate steps to ensure payment of all retiral benefits to the petitioner. 4. Learned counsel for the State submitted that Respondent no. 4 has now sanctioned all retiral dues to the petitioner. Mr. Rajgrihar, learned counsel appearing for the Accountant General has produced photostat copy of Pension Intimation Memo, authority for revised pension and D.C.R. Gratuity Payment order. 5. Petitioner is now aggrieved by recovery of the alleged excess amount of Rs. 1,35,384.45. Learned counsel for the State submitted that Respondent no. 4 has now sanctioned all retiral dues to the petitioner. Mr. Rajgrihar, learned counsel appearing for the Accountant General has produced photostat copy of Pension Intimation Memo, authority for revised pension and D.C.R. Gratuity Payment order. 5. Petitioner is now aggrieved by recovery of the alleged excess amount of Rs. 1,35,384.45. Besides this learned counsel for the petitioner has orally submitted that the amount of difference of salary has not been paid to the petitioner and weightage of five years in the matter of computation of pension as is admissible under Rule 74 of the Bihar Service Code was also not given to the petitioner. 6. Learned counsel for the petitioner has submitted that the recovery is bad, as the petitioner was never given any notice or opportunity in that regard either before retirement or even after retirement. Thus, according to him, the recovery is in violation of the principles of natural justice. Apart from this, he contended that in any view of the matter such recovery is not permissible in view of the law settled in numerous decisions of this Court as well as Apex Court, after retirement. Learned counsel has relied upon the decision of the Apex Court in the case of Sahib Ram vs. State of Haryana & Ors., reported in 1995 Supp. (1) SCC 18 and in the case of Bihar State Electricity Board & another vs. Bijay Bhadur & another, reported in (2000) 10 SCC 99 and the decision of this Court in the case of Bihar State Electricity Board vs. Madan Mohan, reported in 2001(2) PLJR 58 and Bihar State Electricity Board & Ors. vs. Jagdeo Singh & Ors., reported in 2002(3) PLJR 67 . 7. Learned counsel for the State has submitted that the order cancelling the illegal promotion of the petitioner was passed on 10.3.1989 and consequently direction was given to all concerned authorities to recover the amount illegally drawn and to deposit the same in the Treasury vide letter no. 482 dated 17th March, 1989 and letter no. 2537 dated 29.6.1992 (Annexures-B & C), when the petitioner was very much in service and the validity of the said direction was neither challenged by the petitioner nor complied by him. 482 dated 17th March, 1989 and letter no. 2537 dated 29.6.1992 (Annexures-B & C), when the petitioner was very much in service and the validity of the said direction was neither challenged by the petitioner nor complied by him. Thus, according to him, the State-authorities are legally justified in making recovery from the retiral dues and the principle decided in the decisions relied upon by the learned counsel for the petitioner are of no avail in the present case. 8. I find substance in the submission of the learned counsel for the State. In the present case, petitioner was granted promotion in Graduate trained Scale/Headmaster vide memo no. 1649 dated 23.2.1989 and the District Education Establishment Committee in its meeting held on 10.3.1989 cancelled the promotion of the petitioner and vide letter no. 482 dated 17.3.1989 (Annexure-B) all concerned authorities were informed while he was in service and he never raised any objection. Under the aforesaid circumstances, the petitioner who has wrongly drawn the scale of Headmaster on the basis of the wrong promotion granted earlier which was later cancelled, the authorities are justified in making recovery of the same. 9. Insofar as the oral grievance made by the learned counsel for the petitioner with respect to the amount of difference of salary and weightage of five years as the same is not mentioned in the pleadings, the petitioner is given liberty to approach the authority concerned for the said grievance. 10. In the result, I find no merit in the writ application and the same is dismissed.