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Jharkhand High Court · body

2010 DIGILAW 148 (JHR)

Anil Chandra Pandit v. State of Jharkhand

2010-01-29

N.N.TIWARI

body2010
Order In this petition, the petitioner has prayed for quashing the order/letter dated 22nd September, 2003, issued by the District Education Officer, Dumka/Jamtara communicated by letter no.1231 whereby the respondents were directed to recover the amount of additional increment, which was paid to the petitioner in terms of Rule 22(1)(c) of the Fundamental Rules (hereinafter referred to as 'the said Rules'). The petitioner has further prayed for quashing the letter no. 1079 dated 4.12.2004, issued by the District Education Officer, Dumka/Jamtara, whereby direction has been given for withdrawing the increment granted under the said Rule. 2. The petitioner was appointed as Teacher in Santhal High School, Kairabani in the year 1965. On attaining the age of superannuation, he retired from the said post on 31.1.2002. At the time of his appointment, the petitioner was l.Sc. pass. Subsequently, he passed the course of basic teachers training and B.A. Examination. On that basis, the petitioner was given B.A. trained scale w.e.f. 31.3.1980. In 1982, the petitioner was granted revised scale of the basic pay. After completion of 11 years of service, he was granted additional increment and senior central scale by way of time bound promotion w.e.f. 16.11.1991 under the provision of Rule 22(c) of the said Rules. 3. After retirement of the petitioner, an objection was raised by the Accountant General, Bihar regarding admissibility of the additional increment granted to him under the purported provision of Rule 22(c) of the Rules. The Director of the Department issued a letter to the District Education Officer, Dumka in view of the said objection of the Accountant General. On that basis, the District Education Officer, Dumka by his letter dated 21.5.2003 held that the additional increment paid to the petitioner in terms of Rule 22(c) of the Rules was not admissible. He, therefore, directed for re-fixation of the pay-scale and recovery of the excess amount from the petitioner. Accordingly, by impugned letter dated 4.12.2004 direction was given to withdraw the increment granted to the petitioner in terms of Rule 22(c) of the Rules. The respondents on that basis intended to recover the excess amount paid to the petitioner as an additional increment in terms of the said Rules. Aggrieved by the above, the petitioner preferred the instant writ petition. 4. The respondents on that basis intended to recover the excess amount paid to the petitioner as an additional increment in terms of the said Rules. Aggrieved by the above, the petitioner preferred the instant writ petition. 4. When this case was earlier taken up, it was informed that the same question was pending for consideration before the Supreme Court in Civil Appeal Nos. 3351-3355 of 2003 and other analogous appeals. 5. Learned counsel for the petitioner submitted that the said civil appeals have been now disposed of by the Supreme Court. He has also produced a copy of the judgment. 6. In the said decision of the Apex Court, it has been held that the additional increment in terms of Rule 22(c) of the Rules was not admissible in view of substitution of the said Rule by FR 22(1)(a)(1) and FR (1)(a)(2) before the date of resolution. The resolution was taken in terms of the provisions, which was non-existent on the date of resolution. It has been further held that the appellants-teachers since were not discharging any duties and responsibilities of greater importance on their promotion to the higher post/grade, which is sine qua non for being eligible for an additional increment, they are not entitled for any additional increment. The Apex Court. however, held that the amount already paid to the appellants not because of any misrepresentation or fraud on their part but on wrong interpretation of the Rule is not liable to be recovered and in case the amount is recovered, the same is liable to be refunded. (emphasis supplied) 7. The issue/question arises in this petition being fully covered by the said decision of the Apex Court (Syed Abdul Qadir & Ors. vs. State of Bihar & Ors.) 2009(2) JLJR 32. This writ petition is disposed of holding that though the additional increment was not payable to the petitioner, since the same was paid by the respondent without any fraud or misrepresentation of the petitioner, the said amount is not recoverable from him. It has been informed that during pendency of this writ petition, a sum of .Rs. 67,251/ - said to be paid to the petitioner as additional increment has been recovered from him. 8. Learned counsel for the State-respondents has not disputed the said recovery from the petitioner. 9. In view of the above, the respondent nos. It has been informed that during pendency of this writ petition, a sum of .Rs. 67,251/ - said to be paid to the petitioner as additional increment has been recovered from him. 8. Learned counsel for the State-respondents has not disputed the said recovery from the petitioner. 9. In view of the above, the respondent nos. 2-3 are directed to refund the amount, which has been recovered from the petitioner as the excess payment made to him as additional increment within a period of three months from the date of receipt/production of a copy of this order. If the aforesaid recovered amount is not paid to the petitioner within the said period, the same shall carry interest @ 10% per annum from the date of recovery from the petitioner till the date of actual payment/refund to him. 10. The respondents shall also immediately send the paper of re-fixation of pay-scale to the Accountant General for issuing the revised payment order of the final pension and gratuity of the petitioner. Leave encashment and other retiral dues shall be also calculated on the basis of the said re-fixation of the petitioner's payscale. Letter(s)/order(s) for payment must be issued within three months from the date of receipt/production of a copy of this order, if any such amount is found payable to the petitioner after re-fixation of his pay-scale. In case of failure in payment of any such amount, the petitioner shall be entitled to get interest @ 10% per annum, on unpaid amount, till the date of actual payment.