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2014 DIGILAW 132 (JHR)

Noonoolal Prasad v. State of Jharkhand

2014-01-21

APARESH KUMAR SINGH

body2014
ORDER By the Court.–Heard learned counsel for the parties. 2. The petitioner is aggrieved by a part of the order dated 2.3.2013, wherein the District Education Officer, Ranchi while passing the order of sanction of pension and gratuity in respect of the petitioner, on his retirement on 28.2.2013 as an Assistant Teacher of Nationalized High School, Piska Nagri, Ranchi, had chosen to deduct Rs. 97,702/-, which is said to have been paid in excess under Fundamental Rule 22-C (for short the 'Rule 22-C') to the petitioner, from the total gratuity amount of Rs. 8,35,930.00 payable to him. The same is being challenged by the writ petitioner, on the ground, inter-alia, (i) that it has been done without any show-cause or notice, after the retirement of the petitioner, by impugned order dated 2.3.2013, passed by the District Education Officer, Ranchi, (ii) that there has been no fraud or misrepresentation on the part of the petitioner in the matter of payment of the salary fixed by granting increments in terms of the Rule 22-C, (iii) that on identical issues, following the judgment in the case of Syed Abdul Qadir & Ors. v. State of Bihar & Ors. reported in 2010 (1) JCR 97 (SC) : 2009 (1) SCC (L & S) 744, rendered by the Hon'ble Supreme Court, in the same context, the learned single Judge of this Court in W.P. (S) No. 626 of 2005 vide judgment dated 29.1.2010 in the case of Anil Chandra Pandit v. The State of Jharkhand & Ors., reported in 2010 (2) JCR-203 has been pleased to quash such an order of recovery and directed refund of same. 3. Learned counsel for the petitioner submits that the additional increments paid under the Rule 22-C, was made by conscious application of mind by the respondents themselves, though it is said that the said Rule 22-C was substituted by FR22(1)(a)(1) and FR(1)(a) (2) before the date of resolution. However, the learned single Judge while following the Apex Court judgment found that the said petitioner had also not committed any misrepresentation or fraud on their part but on the wrong interpretation and application of the Rule by the concerned respondents, the payments were made to him during his service period, which was sought to be recovered. However, the learned single Judge while following the Apex Court judgment found that the said petitioner had also not committed any misrepresentation or fraud on their part but on the wrong interpretation and application of the Rule by the concerned respondents, the payments were made to him during his service period, which was sought to be recovered. Counsel for the petitioner submits that, in such circumstances, the part of the said order dated 2.3.2013, deserves to be quashed and the amount, recovered from his gratuity, be ordered to be refunded. 4. Counsel for the respondent-State submits that the salary of the petitioner was to be fixed in terms of FR 22(1)(a)(2) and not under the provisions of FR 22-C. The amended Rule became effective from 20.2.1993 and, therefore, excess salary drawn by the teachers like the petitioner, from 20.2.1993, have to be recovered. However, counsel for the respondents-State does not dispute the contention of the petitioner that the impugned order had been passed without any notice or opportunity of hearing to the petitioner. He is also not able to dispute the contention of the petitioner that there had been no misrepresentation or fraud on the part of the petitioner. 5. I have heard learned counsel for the parties and have gone through the relevant materials on record including the order in question. The petitioner is said to have served as 'Assistant Teacher' in High School, Piska Nagri, Ranchi, where he was appointed on 1.4.1978 till his superannuation on 28.2.2013 without any break. After his retirement, the District Education Officer, Ranchi while passing the sanction order in respect of his pension and gratuity payable to the petitioner, had chosen to calculate an amount of Rs. 97,702.00, said to have been paid in excess under the Rule 22-C to the petitioner and deducted the same from his entire gratuity amount of Rs. 8,35,930.00 payable to him. It is, however, clear that the said Rule 22-C was substituted in due course of time from 1993 by FR 22(1)(a)(2). However, it is not in dispute either that there is no act of fraud or misrepresentation on the part of the petitioner in the sanction of the increments, under Rule 22-C, at a relevant point of time during his service carrier. It also appears that the impugned order recovering the amount of Rs. However, it is not in dispute either that there is no act of fraud or misrepresentation on the part of the petitioner in the sanction of the increments, under Rule 22-C, at a relevant point of time during his service carrier. It also appears that the impugned order recovering the amount of Rs. 97,702/- has been passed without any notice or opportunity of hearing to the petitioner. 6. The same issue has drawn attention of this Court in the case of Anil Chandra Pandit (supra), where also the excess amount paid as additional increment, under Rule FR 22(1)(c), was sought to be recovered by the respondents from the concerned teacher. In such circumstances, following the judgment rendered in the case of Syed Abdul Qadir (supra), the order of recovery was quashed by the learned single Judge and any amount recovered was directed to be refunded within a time period. 7. In such circumstances and in view of the Judgment, on similar facts, rendered earlier, in case of similarly situated persons, the contention of the petitioner deserves to be accepted. Therefore, the part of the order dated 2.3.2013, recovering the amount of Rs. 97,702/- from the gratuity amount, payable to the petitioner, is arbitrary and cannot be sustained in law, accordingly, the same is quashed. 8. However, the respondents are directed to refund the amount, recovered from the gratuity amount of the petitioner, to him within a period of 10 weeks from receipt of a copy of this order, failing which, the amount shall carry interest @ 10% P.A. till its actually paid. 9. Accordingly, the writ petition is allowed in the aforesaid manner. Petition allowed.