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2005 DIGILAW 445 (JHR)

Baleshwar Singh v. State Of Jharkhand

2005-06-21

N.N.TIWARI

body2005
ORDER Narendra Nath Tiwari, J. 1. In this writ application the petitioner has prayed for quashing the Office Order No. 195/2004 issued by Memo No. 669 dated 26.5.2004 (Annexure-3) whereby the respondent No. 4 has passed the order for deduction of Rs. 88,893/-from the petitioners amount of gratuity. The petitioner has also prayed for a direction commanding upon the respondents to pay the entire amount of gratuity, which he is legally entitled to. 2. The facts leading to this writ application are as follows : The petitioner joined the service of the Police Department in the erstwhile State of Bihar as a Constable (O) Wireless on 16.8.1969. He was given promotion to the post of Assistant Sub-Inspector (ASI) in the year 1974 and subsequently to the rank of Sub-Inspector of Police w.e.f. 1.8.1992. After reorganization of the State of Jharkhand, the petitioners service were placed in the Head Quarter of the State of Jharkhand in the year 2001. The petitioner retired on attaining the age of superannuation on 29.2.04. After his retirement, the impugned Office Order No. 195/04 has been issued by Memo No. 669 dated 26.5.04 whereby the respondent No. 4 has directed for deduction of a sum of Rs. 88,893/- from the amount of the petitioners gratuity, denying/disapproving the Reducible Personal Pay (RPP) which was paid to the petitioner during his service period on the basis of the fixation made by the department. According to the petitioner, the respondents have also reduced the amount of his pension on the plea of the said impugned order and fixed the monthly amount of pension at Rs. 8300/-. It has been stated that the petitioner had no role in the fixation of pay or in getting RPP and the pay was fixed by the department and the salary was paid on the said scale from 1996 till his retirement. 3. Two separate counter affidavits have been filed, one by the respondent No. 3 the Deputy Inspector General of Police, Wireless, Jharkhand and another by the respondent No. 5 the Under Secretary, Department of Finance, Jharkhand. The contentions made by the said respondents in both the counter affidavits are almost similar. It has been stated that the State Government employees were granted the benefit of revised central pay scale by the finance department Resolution No. 660 dated 8.2.1999 modified by the corrigendum and issued by Resolution No. 3277, dated 2.6.1999. The contentions made by the said respondents in both the counter affidavits are almost similar. It has been stated that the State Government employees were granted the benefit of revised central pay scale by the finance department Resolution No. 660 dated 8.2.1999 modified by the corrigendum and issued by Resolution No. 3277, dated 2.6.1999. Schedule V of the said resolution provided the procedure for drawal of pay in the revised scale of pay, according to which the service book along with the Statement-A was to be forwarded by the Drawing and disbursing Officer/Office Head to the competent authority for vetting of the fixation of pay. The concerned authority was authorized to fix the pay of the employees in the revised scale only on provisional basis. But in the petitioners case after provisional pay fixation, the same was not sent to the competent authority for vetting and the petitioner was allowed to draw salary in the revised scale of pay w.e.f. 1.4.1997. The petitioner was promoted to the rank of Sub-Inspector (Operator) on 1.8.1992 while his juniors Suresh Pd. Singh and Ujjair Mallick were promoted to the rank of Sub-Inspector (Operator) on 15.12.1994. The Wireless Organization fixed the pay of the petitioner in the revised pay scale of Rs. 5500-9000 on 17.5.1999 as per the recommendation of 6th pay commission w.e.f. 1.1.1996. By Office Order Nos. 660/99 and 776/99 while fixing the pay of the petitioner, he was allowed Reducible Personal Pay (RPP) of Rs. 700/- w.e.f. 1.1.1996 to protect his pay from the Junior Sub-Inspectors namely Suresh Pd. Singh and Ujjair Mallick. The petitioner was then allotted Jharkhand State while Suresh Pd. Singh and Ujjair Mallick remained in the State of Bihar as per the division made by the State Cadre Advisory Committee. The petitioners statement of pay fixation was sent to the Finance Department, Jharkhand Ranchi for verification as the petitioner was going to retire w.e.f. 29.2.2004. The finance department then held that the petitioner was not entitled to RPP which was granted to him by Office Order Nos. 660/99 and 776/99. The finance department then fixed the petitioners pay at Rs. 6900/- w.e.f. 1.1.1996 by Office Order No. 564/F, dated 9.3.2004. On the basis of the said fixation, the excess amount paid to the petitioner w.e.f. 1.1.1996 was calculated which came to the tune of Rs. 660/99 and 776/99. The finance department then fixed the petitioners pay at Rs. 6900/- w.e.f. 1.1.1996 by Office Order No. 564/F, dated 9.3.2004. On the basis of the said fixation, the excess amount paid to the petitioner w.e.f. 1.1.1996 was calculated which came to the tune of Rs. 88,893/- and the same was sought to be recovered from the amount of gratuity and the Accountant General, Jharkhand, Ranchi accordingly directed for deduction of Rs. 88,893/- from the final gratuity of the petitioner. It has been stated that the petitioner was not entitled for the said RPP and the amount paid to the petitioner as RPP was unauthorized payment and the Government is entitled to recover the same. On the, said ground, the order of recovery of Rs. 88,893 has been sought to be justified by the respondents. 4. Dr. S.N. Pathak, learned counsel for the petitioner, submitted that admittedly the pay fixation was made by the competent authority and the RPP was paid to the petitioner in order to protect his pay from the pay of the junior Sub-Inspectors namely Suresh Pd. Singh and Ujjair Mallick. Learned counsel submitted that the respondents even in their counter affidavits have not stated that the petitioner was in any way instrumental in getting the said fixation of pay from the authorities concerned. There is absolutely no allegation of misrepresentation or any act of the petitioner at any stage in the process of the fixation of pay and he cannot be held liable for the alleged excess payment made on the basis of the said fixation by the department and amount of salary cannot be recovered from the petitioner. In support of the said submission the learned counsel relied on a decision of the Supreme Court in Sahib Ram v. State of Harayana and Ors., reported in 1995 (Suppl.) (1) SCC 18. Learned counsel further submitted that since the earlier fixation of the petitioners pay scale has been revised after his retirement, the same at best can be made effective by revising the pension on the basis of the said fresh fixation order, but salary of the service period paid to the petitioner cannot now be curtailed with retrospective effect and no recovery can be made from the petitioner on the basis of said post retirement fixation of pay scale. The order of recovery is wholly illegal, arbitrary and unjust. 5. Mr. The order of recovery is wholly illegal, arbitrary and unjust. 5. Mr. P. Modi, learned G.P-I, on the other hand, supported the impugned order and contended that if there was wrong fixation of pay by the mistake of officers, the Government is entitled to set right the mistake and if there was excess payment, to recover the same from the fund at hand. It has been further stated that the petitioners said fixation by the department was only provisional and on scrutiny the same has not been approved by the competent authority. Any excess amount paid on the basis of such provisional fixation is liable to be recovered from the petitioner. There is thus no arbitrariness or illegality in the impugned order of recovery and adjustment of the said amount. Since the petitioner was wrongly allowed RPP of Rs. 700/- w.e.f. 1.1.1996 till the date of his retirement, the finance department has rightly corrected the mistake and calculated the amount and ordered for recovery from the gratuity of the petitioner. Learned counsel relied on a decision of a Division Bench of this Court in the State of Jharkhand and Ors. v. Smt. Girish Kumari Pd. and Ors., reported in 2004 (2) JLJR 426 and another decision in Rameshwar Pd. v.. J.S.E.B., reported in 2005 (2) JCR 198 which followed the decision Smt. Girish Kumar, (supra). 6. Mr. S. Shrivastava, learned counsel appearing on behalf of respondent No. 6 the Accountant General, Jharkhand, supported the impugned order on the same line and submitted that a wrong fixation cannot create any right in favour of the petitioner and payment made by mistake or illegally can be recovered from the pensionary amount. Learned counsel submitted that there is absolutely no illegality in the impugned order and the recovery of the excess payment is wholly justified. 7. In the State of Jharkhand and Ors. v. Smt. Girish Kumari Pd. and Ors. (supra) the writ petitioner of that case had challenged the order whereby the second time bound promotion granted to her, was cancelled because she had not completed the requisite number of years of service before her retirement. On the facts of the said case it was held that the promotion was given without reference to the admitted break in service and the said error was detected and sought to be corrected. On the facts of the said case it was held that the promotion was given without reference to the admitted break in service and the said error was detected and sought to be corrected. On the facts of the said case it was held that the principle as laid down in Sahib Rams case by the Apex Court was not applicable as there was break in the service of the petitioner and the petitioner had accepted the said position and as such she was not entitled to get second time bound promotion before completion of the required number of years and the error was corrected. In Sahib Rams case (supra) the Supreme Court in its concluding paragraph held thus : "5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant...." In the instant case admittedly the pay fixation was done by the competent authority and the petitioner was not at all instrumental at any stage of the fixation process. The amount of RPP was given to the petitioner by the appropriate authority in order to protect his pay from the pay of his juniors. Since the said fixation was all along accepted and the payment of salary was made on the said basis till the date of retirement, the petitioner cannot be held liable for excess payment. This case is squarely covered by the principle laid down by the Honble Supreme Court in Sahib Rams case, supra. The decision of this Court in Smt. Girish Kumari Pd.s case has no application in the facts and circumstances of this case. The impugned order as contained in Annexure-3 is thus wholly arbitrary and illegal and is hereby quashed. The amount deducted from the gratuity of the petitioner on the basis of the said impugned order shall be refunded to the petitioner. The impugned order as contained in Annexure-3 is thus wholly arbitrary and illegal and is hereby quashed. The amount deducted from the gratuity of the petitioner on the basis of the said impugned order shall be refunded to the petitioner. The respondents are directed to refund/pay the said amount to the petitioner with statutory interest within a period of four weeks from the date of receipt of this order, failing which the petitioner shall be entitled to get compensatory interest @ 10% per annum from the date the said amount was payable till the actual date of refund/payment of the said amount. This writ application is accordingly allowed, but without any order as to costs.