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2011 DIGILAW 1004 (JHR)

Saraswati Mishra v. State of Jharkhand

2011-11-17

D.N.PATEL

body2011
ORDER Per D.N.Patel, J: 1. Present writ petition has been preferred mainly against the order passed by the respondents at Annexure-3 to the memo of the petition dated 22.10.2008 whereby the order has been passed by the respondent no.6, The District Superintendent of Education, Deoghar for deduction of Rs.2,92,427/- from the retiral benefits of the present petitioner. 2. Counsel for the petitioner submitted that petitioner was appointed as Assistant Teacher w.e.f 1.2.1970. Thereafter, the petitioner was given promotion i.e. selection grade w.e.f. 11.7.1988 with retrospective effect i.e. 21.1.1984. Thereafter the petitioner worked for several years and petitioner retired on 30.9.2008. The petitioner throughout worked honestly, sincerely, diligently and to the satisfaction of the respondents. Never any notice was given to the petitioner for any misconduct nor any notice was given to the petitioner that she was wrongly given selection grade . But after petitioner retired, unilaterally and arbitrarily the order has been passed on 22.10.2010 for deduction of Rs.2,92,427/-from the retiral benefits of the present petitioner. This order of recovery was passed without giving any notice and without giving any opportunity of being heard to the petitioner. Counsel for the petitioner also submitted that there is no fraud or misrepresentation on the part of the petitioner. Never this is the allegation against the petitioner. Selection grade, which was given in the year 1988 w.e.f. January, 1984 has been held as invalid, in the year 2008 and that too without any notice and after the retirement of the present petitioner and therefore, the same may be quashed and set aside. 3. Counsel for the petitioner relied upon the decision rendered by a Full Bench of this Court, in Smt. Normi Topno versus The State of Jharkhand & others, reported in 2007 (4) JLJR 466 , wherein it has been held that once the benefit is given to the employee and there is no allegation of malafide, misrepresentation or fraud played by the employee then the monetary benefit cannot be ordered to be retained by the State authorities. In the facts of the present case also there is no misrepresentation or fraud or malafide on the part of the petitioner for getting selection grade w.e.f. 21.1.1984 and therefore, the monetary benefit which was given prior to the retirement cannot be now ordered to be recovered by the respondent no.6 by the impugned order dated 22.10.2008 and hence also the impugned order at Annexure-3 deserves to be quashed and set aside. 4. Counsel for the State-respondents submitted that petitioner has wrongly been given selection grade by order dated 11.7.1988 w.e.f. 21.1.1984 and therefore, the monetary benefit has been ordered to be retained by the respondent no.6 by order dated 22.10.2008 at Annexure-3 to the memo of the petition. Counsel for the State-respondents submitted that the order at Annexure-3 dated 22.10.2008 has been passed on the basis of general circular issued dated 2.4.1990, which is at Annexure-B to the counter-affidavit filed by the State and no illegality has been committed by the respondents in passing an order for recovery of amount at Rs.2,92,427/-and therefore, the petition deserves to be dismissed. 5. Having heard the counsel for the parties and looking to the facts and circumstances of the case, I hereby quash and set aside the order passed by the Respondent no.6 dated 22.10.2008 at annexure-3 to the memo of the petition mainly for the following facts and reasons:- I. The present petitioner was appointed as Assistant Teacher w.e.f 1.2.1970. Thereafter, petitioner was given selection grade by order dated 11.7.1988 with retrospective effect i.e. w.e.f 21.1.1984 II. It further appears from the facts of the case that petitioner , thereafter, worked for several years and he reached at the age of superannuation on 30.9.2008. During the period of service, petitioner served honestly, sincerely, diligently and to the satisfaction of the respondents and never any notice was issued to the petitioner for any misconduct. III. It appears that after the retirement of the present petitioner an order has been passed by Respondent No. 6, who is District Superintendent of Education, Deoghar on 22.10.2008 that on the basis of some circular dated 2.4.1990 issued by the then State of Bihar the selection grade which was given w.e.f from January, 1984 in the year 1988 was wrongly given and therefore, monitory benefit received by the retired employee was ordered to be re-paid to the government. Thus, it appears that the selection grade which was given in the year 1988 w.e.f January, 1984 has been withdrawn in the year 2008 and that too after the retirement of the present petitioner no notice has been given by the respondents to the petitioner before passing the impugned order . No reason has been assigned . Had there been notice given to the petitioner, she would have pointed out that there was no illegality in granting of selection grade to the petitioner from January, 1984 and unilaterally an ex-parte decision has been taken by the respondent no. 6 i.e. District Superintendent of Education, Deoghar. This officer has presumed the notice as also the reply given the petitioner. He has also interpreted earlier circular issued by the then State of Bihar dated 2.4.1990 and has passed the impugned order of recovery of amount at Rs.2,92,427/-. This is not permissible in the eyes of law. More particularly when there is no misrepresentation nor there is any allegation of fraud played by the petitioner for getting the selection grade. IV. It further appears from the facts of the case that the petitioner was given selection grade by order dated 11.7.1988 w.e.f. 21.1.1984. Petitioner has retired on 30.9.2008. In the decision rendered by the Full Bench of this court in Smt. Normi Topno versus The State of Jharkhand & others, reported in 2007 (4) JLJR 466 , it has been held by the Full Bench of this court that once the monitory benefit is already paid to the employee and there is no allegation of mis-representation or fraud and if the employee has already retired , this amount cannot be recovered. Similar view has been taken by this court in Amar Nath Singh Vrs. State of Bihar and Others , reported in 2004(2) J.C.R., 342 (Jhr). 6. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, I hereby quash and set aside the order passed by the respondent no. 6, District Superintendent of Education, Deoghar dated 22.10.2008 at annexure-3 to the memo of petition. This writ petition is allowed with a cost of Rs.10,000/-. This cost will be paid by the Respondent-State authorities within four weeks from the receipt of copy of an order of this court.