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2008 DIGILAW 214 (JHR)

Prayag Narayan Jha v. State Of Jharkhand

2008-02-21

R.K.MERATHIA

body2008
ORDER R.K. Merathia, J. 1. Heard the parties finally. 2. In this writ petition, a direction has been sought to pay all post retiral dues on the basis of last pay drawn and not to recover any amount from the petitioner. 3. It appears from the Memo No. PEN-4-400 dated 10.6.2002 issued by the Accountant General, that when after the retirement, the service records of the petitioner was sent to the Accountant General, it was found that petitioner was promoted on 18.6.2007 as A.H.W. and accordingly he was entitled to second time bound promotion only w.e.f. 18.4.1992, whereas he was given the same w.e.f. 13.9.1986 and moreover some mistake in pay fixation on 1.4.1981 was also pointed out. 4. Mr. Jha, appearing for the petitioner did not dispute the said objections raised by the Accountant General but submitted that petitioner was given time bound promotion w.e.f. 13.9.1986 without any misrepresentation and therefore he is entitled to get the retiral dues on the basis of last pay drawn by him. 5. The counsel for the respondent submitted that petitioner can claim only that amount to which he was/is legally entitled. The following portion Division Bench Judgment , State of Jharkhand v. Girish Kumari Prasad was referred : That apart, we find that when the matter finally reaches the Accountant General and it is found that some one had been given some thing that is not due, either because of negligence, collusion or fraud, it is the duty of the Accountant General, being the guardian of the finances of the State, to rectify the mistake committed either by omission or by commission by someone in the department. There cannot be any estoppel against seeking to recover a unauthorized payment made to an undeserving person. The fact that some one had made an error in giving a time bound promotion to the writ petitioner when it was not due, could not clothe her with any special right. The rule applicable has to be universally applied... 6. The said judgment of Girish Kumari Prasad (supra) has been approved by the Full Bench judgment in the case reported in 2008 (1) JCR 381 , Smt. Normi Topno v. State of Jharkhand and Ors. However it was said that recovery can be made after following the rules of natural justice or after initiating a proceeding under Section 43(b) of the Pension Rules. 7. However it was said that recovery can be made after following the rules of natural justice or after initiating a proceeding under Section 43(b) of the Pension Rules. 7. The letter No. 800 dated 31.10.2002 issued by the Incharge Medical Officer to the Accountant General was produced by Mr. Shrivastava which shows that only on the basis of the pendency of this writ petition, petitioner claimed that no deduction be made; and only on that basis the Incharge Medical Officer informed the Accountant General that the recovery was stayed. It is surprising how the Incharge Medical Officer could issue such letter when there was no stay of recovery in this writ petition. It is further surprising that the Accountant General acting only on the basis of the said letter, issued the letter dated 18.1.2003 fixing the pension of the petitioner, on the basis of the last pay drawn. Such conduct of the petitioner, and the Incharge Medical Officer is deprecated. 8. However, following the judgment of Girish Kumari Prasad (supra) and the judgment of the Full Bench Smt. Normi Topno (supra), the Civil Surgeon-cum-Chief Medical Officer, Godda and the Accountant General (respondent Nos. 3 and 5 respectively) are directed to refix the last pay drawn of the petitioner accepting the objections raised in the said letter dated 10.6.2002 and on that basis refix the pension, gratuity and leave encashment, etc. within six weeks from the date of receipt/ production of a copy of this order. Petitioner has been receiving excess amounts, to which he is not entitled. But in view of the Full Bench Judgment of Smt. Normi Topno (supra), no recovery will be made from pension, gratuity, leave encashment, etc. but the pension will now be paid on the basis of refixation as per this order. 9. With these observations and directions, this writ petition is disposed of. 10. Let a copy of this order be handed over to Mr. P. Modi and Mr. S. Shrivastava, as prayed, for communication, immediately.