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2014 DIGILAW 720 (JHR)

Krishna Prasad Singh v. State of Jharkhand

2014-07-10

APARESH KUMAR SINGH

body2014
ORDER Heard learned counsel for the petitioner, the State and the Accountant General. 2. The petitioner has sought quashing of the order contained in Memo No. 765 dated 23.09.2003 issued by the Director, Department of Labour, Employment & Training, Government of Jharkhand, Annexure-2 whereunder, the scale of pay of Rs. 850-1360/-granted on confirmation of first time bound promotion w.e.f. 01.04.1981 by Directorate letter no. 2064 dated 07.08.1992 has been revoked by fixing the scale of the petitioner in the scale of Rs. 730-1210/-w.e.f. from the same date i.e. 01.04.1981 and the amount paid excess has been sought to be recovered. The impugned order has been issued after his retirement on 31.01.2003 from the post of Instructor (Turner) in the Industrial Training Institute at Dhanbad under the respondent-Department. 3. The petitioner had joined the service on 14.06.1967 on the same post at Industrial Training Institute at Bhagalpur and after serving since then superannuated on 31.01.2003. The petitioner consequently sought for finalization of his pension, gratuity and leave encashment due to him. He also sought for grant of the benefit of ACP as are admissible to him. 4. According to the petitioner, the impugned order has been passed after his retirement without any show cause and without any fraud or misrepresentation on his part at the time when the said scale was conferred upon him by conscious decision of the respondent authorities. 5. Learned counsel for the petitioner submits that such orders were passed in the case of other persons like Deolal Singh, Md. Afaque, Shree Krishna Prasad and Kedar Nath Prasad. Their pay scale fixed as Rs. 850-1360/-fixed earlier at 1st the time of time bound promotion were reduced to Rs. 785-1210/- like in the case of the petitioner and in all these cases, the said persons had retired. By the judgment annexed as Annexure-4 series in the case of such persons, the impugned orders were quashed by directing the respondents to calculate the pension of the said petitioners on the basis of last pay drawn within stipulated period. Learned counsel for the petitioner submits that the petitioner is entitled to similar relief and also for re-fixation of his pension on last pay drawn and also other reliefs that he has claimed for. 6. Learned counsel for the petitioner submits that the petitioner is entitled to similar relief and also for re-fixation of his pension on last pay drawn and also other reliefs that he has claimed for. 6. Learned counsel for the State submits that the impugned order has been issued on the basis of Finance Department instruction dated 12.08.1992 whereunder the scale of the petitioner on grant of 1st time bound promotion ought to have been fixed Rs. 785-1210/-. The petitioner, therefore, cannot claim any allowances or scale beyond legally due to him. Learned counsel for the respondents has also submitted that any drawal of pay/emoluments or allowances in excess are impermissible in law and would be liable to be recovered otherwise it would amount to unjust enrichment of the employee over the State Exchequer. Therefore the said order has been passed to withdraw the excess amount paid to the petitioner. Learned counsel for the respondents has relied upon the Judgment of the Hon'ble Supreme Court in the case Chandi Prasad Uniyal Vs. State of Uttarakhand reported in 2012(8)SCC 417. 7. I have heard learned counsel for the parties and have gone through the relevant materials on records. It is not in dispute that the petitioner after having come into service in the year 1967 was granted time bound promotion w.e.f. 01.04.1981 as per the scheme of time bound promotion prevalent in the erstwhile Government of Bihar effective from 1981 itself. It is also evident from the impugned order that initially the petitioner was placed in the scale of Rs. 785-1210/-by the order of Directorate contained in letter no. 3096 dated 14.08.1986 w.e.f. 01.04.1981 on provisional grant of 1st time bound promotion and again through the letter no. 2064 dated 07.08.1992 of the Directorate, the original order was modified and he was placed in the scale of Rs. 850-1360/-w.e.f. from the same date on grant of 1st time bound promotion. Apparently, there was no fraud or misrepresentation on the part of the petitioner when the said scale was granted to him by the decision of the Directorate, Labour, Employment & Training, itself. The petitioner remained in the said scale and got payment in the said scale till his retirement in the year 2003. The impugned order has been issued after his retirement without any show cause and also without any proceeding conceived under Rule 43(b) of the Jharkhand Pension Rules. The petitioner remained in the said scale and got payment in the said scale till his retirement in the year 2003. The impugned order has been issued after his retirement without any show cause and also without any proceeding conceived under Rule 43(b) of the Jharkhand Pension Rules. In similar circumstances, such action of the respondents have been quashed by the learned Single Bench of this Court in the judgment rendered in the case of Deolal Singh Vs. the State of Jharkhand and Ors. in W. P. (S) No. 4590 of 2004 dated 19.12.2008 and other judgments annexed as Annexure-4 series to the writ petition. In the recent judgment rendered by the Hon'ble Supreme Court in similar circumstances in the case of Kusheswar Nath Pandey Vs. State of Bihar & Ors. reported in 2013(12) SCC 580, the Hon'ble Supreme Court has restored the decision of the learned Single Judge whereby the cancellation of time bound promotion granted to an employee after 11 years was quashed. The Hon'ble Supreme Court in the said judgment also considered the ratio laid down in the case of Chandi Prasad Uniyal (Supra), which has been relied upon by the learned counsel for the respondent-State. Even by the ratio laid down by the Hon'ble Supreme Court in the case of Chandi Prasad Uniyal, such an act on the part of the respondents to cancel a benefit given w.e.f. 1981 after the petitioner's retirement in the year 2003 would entail undue hardship upon the petitioner and such an amount should not be allowed to be recovered in the absence of fraud or misrepresentation on the part of the petitioner. Therefore, the impugned order dated 23.09.2003 cannot be sustained in the eyes of law and is accordingly, quashed. 8. The respondents shall now finalize the pension, gratuity and other retiral dues of the petitioner within a period of 12 weeks from the date of receipt of a copy of this order. Respondents would also consider the claim of the petitioner for grant of any financial up-gradation under the ACP scheme, if the petitioner otherwise fulfills the eligibility criteria under the scheme in question within the same time. 9. Needless to say that if the claim of the petitioner on any of such heads are found to be genuine and legally admissible, necessary sanction order be issued in favour of the respondent no. 9. Needless to say that if the claim of the petitioner on any of such heads are found to be genuine and legally admissible, necessary sanction order be issued in favour of the respondent no. 5, Accountant General, Ranchi for issuance of authority slip in favour of the petitioner without any further delay. The respondent no. 5, Accountant General, Ranchi, on receipt of such sanction letter after examining it, issue the authority slip to the petitioner within a period of four weeks thereafter, if there are no further legal impediments. 10. The writ petition is, accordingly, allowed in the manner indicated hereinabove. Petition allowed.