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2012 DIGILAW 371 (BOM)

Vishnu Manerikar v. State of Goa

2012-02-21

S.C.DHARMADHIKARI, U.V.BAKRE

body2012
Judgment : S.C. DHARMADHIKARI, J. 1. Respondents had sought time on the earlier occasion to file reply but the same is not filed despite two adjournments being granted. Therefore, we do not propose to give any further time for filing of reply and proceed in the absence thereof. 2. Heard Mrs. A. Agni, learned Advocate appearing on behalf of the petitioner and Mr. S. Bandodkar, learned Additional Government Advocate appearing on behalf of the respondents. 3. Rule. 4. Respondents waive service. 5. By consent, rule is made returnable forthwith. 6. By this petition under Article 226 of the Constitution of India, the petitioner challenges a communication dated 29.8.2011whereunder he has been directed to return the benefit that has been received under the Time Bound Promotional Scale (TBPS) and only then his pension and gratuity papers will be scrutinized and forwarded for necessary action. 7. The petitioner had been appointed as Junior Engineer(Civil) in the Irrigation Department, State of Goa, on 9.3.1988. From 19.6.1991 he was appointed on regular basis with effect from 9.3.1988 and posted at Sub Division IV, Works Division III, Irrigation Department, Sanguem. He worked in the said Department, which was later on named as Water Resources Department up to 31.5.2011 on which day, he retired from service. The petitioner was held eligible for Time Bound Promotional Scale by order dated 7.9.2000 and on account thereof, his pay scale was determined as Rs. 6500-200-10500 with effect from 21.3.2000. From 1999 till 20.3.2000 the petitioner was paid salary in the pay scale of Rs.4500-125-7000 and his pay drawn was Rs.6125/-per annum as on 1.3.2000. After completing the requisite 12 years service and with grant of these benefits, the pay scale of the petitioner was revised to 6500/-. He was granted increment and continued to enjoy that scale till he retired on attaining age of superannuation. 8. Petitioner states that his pension papers have to be prepared one year prior to the date of retirement and that time the relevant record should include all the increments and benefits earned and pay determined. However, pension papers were not prepared instead the petitioner received a letter dated 29.8.2011 which reads as under:- No: WRD/WDII/ADM/F-174/405/11-12. Government of Goa Office of the Executive Engineer Work Division II Water Resources Department Gogol Margao, Goa. Dated: /8/2011. To, ShriVishnu V. Manerikar, H. No.390, Kadsalwaddo, Khandepar, Ponda-Goa. Sub: - Pension Case. Ref.:- No. DA/PA-I/Pens(PP)/368 dated 14.6.11. However, pension papers were not prepared instead the petitioner received a letter dated 29.8.2011 which reads as under:- No: WRD/WDII/ADM/F-174/405/11-12. Government of Goa Office of the Executive Engineer Work Division II Water Resources Department Gogol Margao, Goa. Dated: /8/2011. To, ShriVishnu V. Manerikar, H. No.390, Kadsalwaddo, Khandepar, Ponda-Goa. Sub: - Pension Case. Ref.:- No. DA/PA-I/Pens(PP)/368 dated 14.6.11. Sir, Your pension case was submitted to Directorate of Accounts, Panaji -Goa, vide this Office letter No.WRD/ WDII/ADM/F-174/1139/10-11 dated 24.3.2011, the same is returned vide their letter referred above (copy enclosed). It is stated that TBPS is given to you with effect from 23.3.1999 whereas the same is due with effect from 23.3.2000 as you joined as Junior Engineer on 23.3.1988. You are hereby directed to pay the overpayment made to you by challan and challan copy be submitted to this office. As this office needs the same to resubmitted your pension case to Directorate of Accounts. Yours faithfully, sd/- ( H. M. Rangaraju) Executive Engineer. sd/-Encl:-As above. 9. Petitioner pointed out in reply to this letter that during his service he was not informed about any such over payment or excess payment and was never called upon to return any amount, but, upon retirement and now for the first time after lapse of 10 years or more, he has been called upon to return the amount. He submits that recovery itself is after 11 years and this period itself would disentitle the respondent from effecting any recovery or calling upon the petitioner to pay any sum. 10. Finding that there is no response to this in reply and the objection of the petitioner so also petitioner's pension and gratuity not being released that he has approached this Court in Writ Jurisdiction. 11. With the assistance of Mrs. Agni and Mr. Bandodkar, we have perused the petition and the annexures thereto. The petitioner has in response to the notice/letter dated 28.8.2011 pointed out that there is absolutely no case for recovery in as much as the further letter to the petitioner dated 28.11.2011 to which our attention is invited would itself denote that pension papers were submitted to Directorate of Accounts but they were returned with some observation that was regarding recovery of excess pay and allowances. Pension papers were forwarded and there upon file was once again returned and the amount should be deposited, is the objection of the said Department. 12. Pension papers were forwarded and there upon file was once again returned and the amount should be deposited, is the objection of the said Department. 12. The communication from the Government itself would show that Time Bound Promotional Scale is given to the petitioner w.e.f 23.3.1999 whereas according to the Department it is due from 23.3.2000. According to the Department the petitioner had joined the department on 23.3.1988 and, therefore, the benefit completion of 12 years would accrue from 2000 and not from 1999. 13. It is not clear as to how such an objection has been raised by Directorate of Accounts or even by the Works Division of the Water Resources, Government of Goa after a lapse of 11 years or more. For more than 11 years and when the petitioner was admittedly in the service of the Department, the mistake in grant of TBPS was not brought to his attention nor has it been explained to the petitioner that benefits are not admissible to him. That computation thereof by the Department is something, which is to its knowledge. If records of the department are erroneous it cannot turn around and blame the petitioner employee. In the given facts and circumstances therefore recovery of the amount after 12 years in the absence of any explanation is something which vitiates the action of the Government. The Government cannot call upon the employee in this case to refund the amount after 12 years and that too without affording any opportunity or placing before the Court any satisfactory material explaining the delay. 14. As we have noted above, there is no affidavit in reply. The averments in the petition remained uncontroverted. In such circumstances and going by inordinate and unexplained delay and seeking to recover the sum after more than 11 years, we are of the opinion that the with holding of the pension and gratuity on that count vitiates the mandate of Articles14 and 16 of Constitution of India. Once pension is not bounty but a benefit which a Government employee has earned on account of service rendered, then, all the more a welfare. State cannot act in the manner contrary to the mandate of Constitutional provisions. For all these reasons, the Writ Petition succeeds. 15. Rule is made absolute in terms of prayer clause (a) and (b). 16. Once pension is not bounty but a benefit which a Government employee has earned on account of service rendered, then, all the more a welfare. State cannot act in the manner contrary to the mandate of Constitutional provisions. For all these reasons, the Writ Petition succeeds. 15. Rule is made absolute in terms of prayer clause (a) and (b). 16. Pension papers now be scrutinized and necessary action including releasing of pension and gratuity amount and arrears thereof be initiated and completed as expeditiously as possible and within a period of two months from the date of receipt of the copy of this order. 17. Needless to state that petitioner would be entitled for both pension and gratuity in terms of admissible scheme for terminal benefit. Since this is a matter where pension papers are not prepared in time despite clear instructions and are delayed, the amount of arrears will carry interest at the rate of 6% per annum.