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2015 DIGILAW 297 (RAJ)

Tara Joshi v. State of Rajasthan

2015-02-02

SANDEEP MEHTA

body2015
JUDGMENT 1. - The petitioner herein is the widow of late Shri Deo Raj Joshi, a former Assistant Agriculture Officer in the Agriculture Department, Government of Rajasthan. Shri Deo Raj was appointed as an Assistant Agriculture Officer in the year 1976. 2. In order to remove stagnation in pay scales, the State Government introduced the scheme for grant of selection scale to its employees in the subordinate, ministerial and Class IV cadres upon completing 9, 18 and 27 years of service by a circular dated 25.1.1992. The petitioner claims that her husband was given benefit of the said circular dated 25.1.1992 and benefit of the first selection scale of 9 years was given to him by order dated 2.5.1994. Another order dated 25.3.1995 came to be issued whereby second and third selection scales were also paid to the employees of the department including the petitioner's husband. The date of appointment of the petitioner's husband was mentioned in both the orders as 24.11.1976. The petitioner's husband retired on 30.8.2003 and till the date of superannuation, he was given the pay scales as per the fixation done under the orders dated 2.5.1994 and 25.3.1995. However, a subsequent order (Annex. 3) dated 24.9.2003 came to be issued by the Joint Director (Administration) of the Agriculture Department whereby the selection scales earlier granted to the petitioner's husband were withdrawn on the ground that after his services were regularised on the post of Assistant Agriculture Officer in the year 1995, he was screened under the provisions of the Rajasthan Agriculture Subordinate Service Rules, 1978. Pursuant to this order, another order (Annex. 4) dated 9.10.2003 was issued and the alleged excess amount paid to Shri Joshi by inadvertent premature grant of selection scales was directed to be withdrawn and recovered. It appears that in the meantime, Shri Joshi passed away on 17.12.2003, before the retiral benefits could be paid to him. The retiral benefits thereafter came to be released by the department to the petitioner on 28.2.2004 pursuant to her husband's death from the total amount of retiral benefits, a sum of Rs. 2,10,000/- was deducted towards the alleged wrong grant of selection scales by GPO (Annex. 5). The retiral benefits thereafter came to be released by the department to the petitioner on 28.2.2004 pursuant to her husband's death from the total amount of retiral benefits, a sum of Rs. 2,10,000/- was deducted towards the alleged wrong grant of selection scales by GPO (Annex. 5). The petitioner has approached this court by way of the instant writ petition assailing the action of the respondents in withdrawing the benefits of the selection scales already paid to the petitioner's husband in the year 1994 and 1995 respectively and in recovering the amount from his retiral benefits. 3. Learned counsel for the petitioner contends that the action of the respondent authorities in deducting the amount on the ground of alleged wrong grant of selection scale and effecting recovery of the amount from the retiral benefits is illegal and unjust. Learned counsel for the petitioner relies on the circulars dated 29.6.2009 and 20.8.2010 issued by the State Government as per which, while rectifying the date of admissibility of selection scales, which were granted to the employees in reference to the date of their ad hoc/temporary appointments, the State Government has decided to protect the benefits already given to such employees uptill 31.5.2009. He thus submits that the impugned order cannot be sustained in light of the aforesaid circulars. 4. Learned counsel for the respondents though opposes the submissions advanced by the learned counsel for the petitioner, however, he too is not in a position to dispute that the recovery of benefits of selection scales introduced by the State Government in the year 1992 already granted to the employees cannot be effected for such payments, which were made upto 31.5.2009. He also candidly concedes that under the circular dated 20.8.2010, the cases of such employees, who retired prior to 31.5.2009 cannot be reopened as well. 5. It is not in dispute that the petitioner's husband was appointed as an Assistant Agriculture Officer in the respondent department in the year 1976. While passing the order (Annex. 3), the concerned Joint Director observed that the petitioner's husband was screened in pursuance of an order dated 4.7.1995 issued by the Government of Rajasthan and thus, his services were regularised only thereafter. The respondents while filing reply to the petition have not placed on record any specific order whereby the services of the petitioner's husband were regularised at any later date. The respondents while filing reply to the petition have not placed on record any specific order whereby the services of the petitioner's husband were regularised at any later date. Be that as it may, even if it is so, then too, the recovery of the alleged excess paid under the wrong/inadvertent premature grant of benefits of selection scales is not permissible in view of the circulars dated 29.6.2009 and 20.8.2010 issued by the State Government wherein it has been decided not to reopen the cases of such employees, who had retired prior to 2009 and also not to effect recoveries of the amounts paid prior to 31.5.2009. The petitioner's husband had retired way-back in the year 2003 itself and the decision to withhold his retiral benefits for the purpose of recovering the excess amount under the so called inadvertent grant of selection scale was taken after his retirement. Thus, in light of the above referred circulars, the impugned orders (Annex. 3) dated 24.9.2003 and order (Annex. 5) dated 28.2.2004 whereby recovery was effected from the retiral dues of the employee cannot be sustained. The decision to effect recovery and the recovery made vide the GPO (Annex. 5) are also bad in the eye of law for the reason that the same were passed without providing any opportunity of hearing to the employee or his dependent. As per Rule 7 of the Rajasthan Civil Services (Pension) Rules, 1996, the pensionary benefits or retiral benefits of an employee cannot be withheld except with the sanction of the Governor. In the case at hand, the pensionary benefits accruing to the retired Government servant were withheld by an ex-parte order and that too without any sanction from the Governor and contrary to the mandatory provisions of the Rajasthan Pension Rules, 1996. Thus, the action of the respondents in withholding the sum of Rs. 2,10,000/- from the retiral dues of her husband is highly unjust, arbitrary and oppressive. 6. As a result, the writ petition deserves to be and is hereby allowed. The impugned order (Annex. 3) dated 24.9.2003 is hereby quashed. The petitioner shall be entitled to all the consequential benefits. The amount of Rs. 2,10,000/- which was withheld by the respondents from the pensionary benefits (gratuity) of the pensioner by GPO (Annex. 6. As a result, the writ petition deserves to be and is hereby allowed. The impugned order (Annex. 3) dated 24.9.2003 is hereby quashed. The petitioner shall be entitled to all the consequential benefits. The amount of Rs. 2,10,000/- which was withheld by the respondents from the pensionary benefits (gratuity) of the pensioner by GPO (Annex. 5) shall be forthwith released to the petitioner with interest @ 9% per annum from the date of order till the date of actual payment as per Rule 89 of the Pension Rules. 7. No order as to costs.Petition allowed. *******