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2010 DIGILAW 140 (PAT)

Suresh Pandey v. State Of Bihar

2010-02-04

JYOTI SARAN

body2010
JUDGEMENT 1. Heard Mr.Shashi Shekhar Tiwary learned counsel appearing on behalf of the petitioner and Mr. Ranjan Kumar Singh, learned Assisting counsel to G.P.2 for the State. 2. The writ petitioner who retired from the post of Sub Inspector, Chapra on 31.1.2003, filed the writ petition questioning the legality of the order bearing memo no.196/2003 dated 21.1.2003 (Annexure-4). The true copy of the original order has been placed at Annexure-A series to the counter affidavit filed on behalf of the respondents. 3. The fact of the case, in brief, is that the petitioner was appointed as a matriculate constable on 16.2.1968. He got his first time bound promotion in the rank of Assistant Sub Inspector and thereafter was confirmed on 7.6.1976. The petitioner superannuated from the said post with effect from 31.1.2003. 4. It is stated that just prior to the retirement of the petitioner, the impugned order dated 21.1.2003 (Annexure-4) was issued, whereby the Superintendent of Police, Saran held that the pay scale of the petitioner consequent upon the implementation of the 5th Pay revision in the establishment was incorrectly fixed and which warranted recovery of the excess amount drawn by the petitioner. 5. A perusal of the order as contained in Anneure-4 shows that there is absolutely no dispute as regarding the last salary drawn by the petitioner at the time of his retirement. The dispute is at the earlier stages. The 5th Pay Revision came into to effect from 1.1.1996 with financial benefits accruing from 1.4.1997. It is during the course of finalization of the post retiral benefits of the petitioner that it came to be noticed that the fixation on 1.1.1996 was not correct leading to excess payment and which was recovered from the petitioner from his pensionary entitlement(s). 6. Learned counsel for the petitioner submits that the impugned order nowhere indicts the petitioner of playing any role in the matter of fixation of his pay scale or whether he had committed any fraud or misrepresentation or the like to derive the same. He submits that the fixation was done at the ministerial level of the department after due consideration of the relevant provisions governing the 5th pay revision. He submits that the fixation was done at the ministerial level of the department after due consideration of the relevant provisions governing the 5th pay revision. It is further submitted that neither any notice nor any proceedings was initiated in this regard rather the Superintendent of Police has simply issued the order of recovery and which besides being inequitable, is arbitrary and in the teeth of the principle of natural justice. 7. A counter affidavit has been filed on behalf of the State and its authorities and in which it has been stated that upon reconsideration of the fixation of the pay scale assigned to the petitioner it came to knowledge that the same was not correctly fixed in terms of the circulars of Finance Department and thus, the order for recovery has been issued. 8. The counter affidavit is absolutely silent as to the role of the petitioner in the pay fixation exercise carried out by the department. It also does not speak as to the reasons which led to the issuance of the order. 9. Be that as it may, having regard to the circumstances that the petitioner has superannuated with effect from 31.1.2003 and it is indisputed that the petitioner had no role to play in the matter of pay fixation coupled with the fact that even according to the respondents, the last salary drawn by the petitioner at the time of his superannuation was correctly fixed and is not in dispute, the discrepancy which has occurred at the earlier stages could be a result of interpretation of the clauses of the resolution governing the 5th pay revision and for which the petitioner certainly cannot be saddled with the liability. 10. Having regard to the ratio laid down in the Full bench judgment of Ram Binod Singh reported in 2007 (3) PLJR 398 , the case of the petitioner does not fall within the category of cases warranting recovery. The writ petition is allowed. The order dated 21.1.2003 as contained in Annexure-4 to the writ petition and Annexure- A series to the counter affidavit is set aside and the respondents are directed to refund the amount withheld within a period of three months from the date of receipt/production of a copy of this order. 11. The writ petition is allowed.