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2016 DIGILAW 11 (JHR)

Madan Mohan Jha v. State of Jharkhand

2016-01-04

PRAMATH PATNAIK

body2016
Order : Pramath Patnaik, J. 1. In the aforesaid writ application, the petitioner has inter alia prayed for issuance of a writ of certiorari for quashing the letter dated 13.06.2014 issued by respondent no.3 whereby the respondent authorities have wrongly fixed the last pay drawn by the petitioner and for issuance of writ of mandamus commanding upon the respondents to pay the Leave Salary, Gratuity and Retiral Benefits; and also for direction upon the respondents to fix the pension of the petitioner in the scale of last pay drawn by the petitioner on the day of retirement i.e. 32,400/- 2. The factual matrix as delineated in the writ application in a nutshell is that initially on 01.03.1975 the petitioner was appointed as Block Statistical Supervisor at Jagdishpur Block, Arrah and on 01.03.1985 petitioner was given time bound promotion. Thereafter, on 01.02.1996 the petitioner was given regular promotion on the post of Assistant Statistical Officer and on 09.08.1999 the petitioner was given 2nd ACP. On 01.09.2008 when Modified Assured Career Progression came into existence petitioner was granted the pay scale with a grade pay of Rs.54,00/-. After 14 years in 2010 an amendment was made by the department regarding rectification of the regular promotion from 1st July 1996 and the petitioner was intimated regarding wrong fixation of pay. The petitioner submitted his reply denying the allegations. Just prior to couple of days of retirement, the petitioner received a letter of wrong fixation of pay scales and the petitioner submitted his reply denying wrong fixation of pay. 3. Being aggrieved by the wrong fixation of pay and non-payment of retiral benefits and recovery of excess payment the petitioner left with no alternative, efficacious and speedy remedy, has approached this Court invoking extraordinary jurisdiction under Article 226 of the Constitution of India for redressal of his grievances. 4. Per contra, a Counter affidavit has been filed on behalf of respondents controverting the averments made in the writ application. In the counter affidavit, it has been inter alia submitted that in view of provisions of resolution dated 08.02.1999 of Finance Department, Government of Bihar, the Directorate of Economics and Statistics, Planning and Development Department, Government of Bihar reviewed the entire matter and ordered vide order dated 22.02.2010 that 78 promoted Assistant Statistical Officers including the petitioner are adjusted against the need based vacant identified post of Assistant Statistical Officers with effect from 01.07.1996. Consequently, in the same order it was ordered that excess salary amount drawn/received due to must be recovered from them. In view of the implementation of the order dated 22.02.2010 of Directorate of Economics and Statistics, Bihar and letter dated 18.07.2011 of Directorate of Economics and Statistics, Government of Jharkhand the excess amount paid to other employees similar to the petitioner namely Sri Surendra Mohan Upadhyay and Sri Vinod Shankar Prasad was recovered on 08.06.2013. It has further been submitted that in view of the said pay fixation charts the last pay drawn before the retirement of the petitioner on 30.06.2014 stands as 31,450/-. It has further been submitted in the counter affidavit that District Statistical Officer, Godda has calculated the amount amounting to Rs.2,27,951/- to be recovered from the petitioner and issued the office order dated 30.04.2015 vide Annexure-9 to the writ application. Regarding post retiral benefits of the petitioner, it has been submitted that the Group Insurance amount of Rs.2,12,998/- has been paid to the petitioner. General Provident Fund of Rs.23,09,002/- has been paid to the petitioner and Leave Salary of Rs.6,29,000/- has already been paid to the petitioner and so far as Pension and Gratuity are concerned the special seal authority on 17.02.2015 for pension and gratuity payment related to the petitioner have already been issued by the office of the Accountant General, Jharkhand, Ranchi and the Accountant General, Jharkhand has already requested the Accountant General, Bihar vide letter dated 10.04.2015 for correction of pension of the petitioner on the basis of last pay corrected as 31,450/-. It has further been submitted that the respondents have taken the corrective measures in accordance with the State Government Rules/Provisions. 5. Heard Dr. S.N. Pathak, learned senior counsel appearing for the petitioner and Mr. Rishikesh Giri (J.C. to G.P.II), appearing for the respondents and perused the documents on record. 6. During course of argument, learned senior counsel for the petitioner submitted that the impugned order dated 30.04.2015 for recovery of Rs.2,27,951/- vide Annexure-9 to the writ application is not permissible in the teeth of judgment rendered by the Full Bench decision of this Court reported in 2007 (4) JLJR 466 (Smt. Normi Topno Vs. State of Jharkhand & Ors.) and (2015) 4 SCC 334 (State of Punjab and Ors. Vs. Rafiq Masih (White Washer) and Ors.). State of Jharkhand & Ors.) and (2015) 4 SCC 334 (State of Punjab and Ors. Vs. Rafiq Masih (White Washer) and Ors.). Apart from that learned counsel for the petitioner submits that the excess payment would not be recovered since the petitioner retired on 30.06.2014. After retirement the impugned order dated 30.04.2015 could not have been passed without following the provisions of Pension Rules, therefore, the impugned order of recovery dated 30.04.2015 is not legally sustainable. 7. Learned counsel for the respondents on the other hand has assiduously submitted that it is settled principles of law that so far as bona fide mistake occurred can be rectified at any point of time. In the instant case, the pay fixation has been made as Rs.31,450/- on 01.07.2015 prior to the date of retirement, so it cannot be construed to be wrong fixation of pay. So contention of the petitioner cannot be acceptable because the pay has been fixed on 01.07.2015 as 31,450/- and on the basis of last pay drawn Rs.31,450/- ought to be fixed for the fixation of pension amount. 8. After hearing the learned counsel for the respective parties at length and after giving my anxious consideration to the respective parties and on perusal of records, I am of the considered view that the impugned order dated 30.04.2015 is not legally permissible due to the following facts, reasons and judicial pronouncements: I. Admittedly in the instant case the recovery order has been made after retirement of the petitioner i.e. on 30.04.2015 which is not legally permissible as per the Full Bench decision of this Court reported in 2007 (4) JLJR 466 (Smt. Normi Topno Vs. State of Jharkhand & Ors.) and the decision of the Hon’ble Apex Court reported in (2015) 4 SCC 334 (State of Punjab and Ors. Vs. Rafiq Masih (white washer) and Ors.) and the case of the petitioner is squarely covered by the decision of the Hon’ble Apex Court as well as Full Bench decision of this Court. (II) On perusal of the impugned order dated 30.04.2015, it is crystal clear that the respondents have directed to recover from gratuity and pension, which is not in accordance with provisions of Pension Rules and in contention to the aforesaid decisions. 9. (II) On perusal of the impugned order dated 30.04.2015, it is crystal clear that the respondents have directed to recover from gratuity and pension, which is not in accordance with provisions of Pension Rules and in contention to the aforesaid decisions. 9. As a cumulative effect of the facts, reasons and judicial pronouncements the impugned order of recovery dated 30.04.2015 passed by the respondents, vide Annexure-9 to the writ application is not sustainable in the eye of law, and is liable to be quashed and the respondents are directed to make payment of the recovered amount and the gratuity, if not already paid and the pension of the petitioner be fixed on Rs.31,450/- and accordingly, pensionary benefit be disbursed to the petitioner. 10. With the aforesaid direction, the writ petition is allowed.