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2005 DIGILAW 773 (PAT)

Mol Chandra Jha v. State Of Bihar

2005-08-29

MRIDULA MISHRA

body2005
Judgment 1. Heard the counsel for the petitioner and the State. 2. Petitioner has superannuated from the service on 31.8.2004. He has prayed for quashing the order, dated 1.11.2002, contained in letter no. 2200, issued by the Deputy Secretary, District of Animal Husbandry and Fisheries, Government of Bihar (Annexure 3), reverting the petitioner from the post of Machhua to the post of Orderly and also the consequential order, dated 7.10.2004, contained in memo no. 329, issued by the Director, Animal Husbandry and Fisheries, Department, Government of Bihar (Annexure 4). By this order a direction has been issued to recover the amount paid to the petitioner as salary on account of his promotion. The other prayer of the petitioner is for a direction to fix his pension on the basis of last pay drawn and also direct the respondents to make no recovery from his pensionary dues. 3. Facts of the case are that the petitioner was appointed on the post of Orderly in the year 1966 in the Fisheries Department and was posted under the Fisheries Inspector, Saharsa. After some time of his appointment, he started discharging duties of the next promotional post, i.e., to the post of Machhua. The District Fisheries Officer-cum-Chief Executive Officer, Saharsa, by his letter no. 628, dated 13.9.1997, recommended the case of the petitioner for promotion to the post of Machhua. The Deputy Director, Fisheries, Kosi Range, Saharsa, considered the recommendation of the District Fisheries Officer, Saharsa, as well as the seniority list and posted the petitioner on the post of Machhua vide order, contained in memo no. 503, dated 21.9:1997. The promotion of the petitioner was confirmed by the order of the District Fisheries Officer, Saharsa. After many years, the promotion, which was given to the petitioner, was questioned by the Deputy Secretary, Department of Animal Husbandry and Fisheries, Government of Bihar, by letter no. 2200, dated 1.11.2002. By this order the petitioner was directed to be reverted to the post of Orderly. Further direction was to recover the amount which has been paid to the petitioner as salary of the promotional post, by the authorities who are responsible for fixation of such salary. The reversion order was never communicated to the petitioner till the date of his superannuation. Subsequent to petitioners superannuation consequential order was passed by the Director by his order dated 21.9.2004 vide letter no. The reversion order was never communicated to the petitioner till the date of his superannuation. Subsequent to petitioners superannuation consequential order was passed by the Director by his order dated 21.9.2004 vide letter no. 1745 whereby direction was issued to recover the excess amount paid to the petitioner as salary, from his retiral dues. Petitioner has challenged both the orders by which he has been reverted to the post of Orderly from the post of Machhua and the order by which it has been directed that recovery should be made. The grounds on which the petitioner has challenged the impugned orders are that before his reversion from the post of Machhua to the post of Orderly, he was never given any opportunity to show cause, though it was detrimental to his interest. Order is discriminatory as similar promotion, given to other employees, have never been questioned, they were not reverted and no recovery was ordered from their pensionary benefits. Another ground for assailing those orders is that authorities should have passed those two orders within a reasonable period and not after such long delay. The authorities are restrained from passing any such order after long duration. Counsel for the petitioner has also placed his reliance on a decision reported in 2001 (IX) S.C.C. 264 (Vijay L. Mehrotra V/s. The State of U.P. & Ors.). 4. It has also been submitted by the petitioner so far the recovery is concerned, it cannot be made from his pensionary dues as it is not the case of the respondents that petitioner was any how instrumental for such promotion. He neither influenced nor he committed any fraud for passing such promotional order. 5. In counter affidavit filed by the respondent State, it has been stated that the order of promotion was wrongly confirmed. The decision taken by the Deputy Director of Fisheries was properly communicated to the petitioner before his retirement and so far the recovery part is concerned, the excess amount which has been drawn by the petitioner, can be recovered from his pensionary dues for which opportunity of hearing is not at all essential. 6. The decision taken by the Deputy Director of Fisheries was properly communicated to the petitioner before his retirement and so far the recovery part is concerned, the excess amount which has been drawn by the petitioner, can be recovered from his pensionary dues for which opportunity of hearing is not at all essential. 6. Counsel for the petitioner has drawn my attention towards the order, contained in Annexure 3, whereby the petitioner was reverted from the post of Machhua to the post of Orderly, in this order, there was specific direction that recovery should be made from these authorities who are responsible for giving such promotion. It shows that this was not the fault of the petitioner that he was given promotion and paid the salary of the promotional post. In this background the subsequent order directing to recover this amount from the pensionary dues of the petitioner cannot held to be right. 7. Considering all these facts the orders, contained in Annexures 3 and 4, i.e., the order by which the petitioner was reverted from the post of Machhua to the post of Orderly and order by which direction has been issued to make recovery from the pensionary dues of the petitioner, are quashed. The respondents are directed to fix the pension of the petitioner on the basis of the salary last drawn by the petitioner. After the pension is fixed, the arrears of pension and all other retiral dues, should be paid to the petitioner within six weeks from the date of communication/production of a copy of this order, if has not been paid till the date. 8. Accordingly, this application is allowed.