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2016 DIGILAW 1259 (JHR)

Deepali Das v. State of Jharkhand

2016-08-12

PRAMATH PATNAIK

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JUDGMENT : Pramath Patnaik, J. In the instant writ application, the petitioner has inter-alia prayed for direction upon the respondents to fix the pension in the pay scale of Rs.19500/- as per the last pay drawn before retirement which has been illegally and arbitrarily scaled down in the pay scale of Rs.18930/- without any rhyme and reason and for direction upon the respondents to pay the arrears & salary and difference of pay scale from the date of passing the Teachers Training Examination i.e. 16.04.1992. 2. The brief facts as disclosed in the writ application, is that initially the petitioner was appointed as an Assistant Science Teacher (B.Sc. Untrained) on 19.08.1981 in Hosir Middle School, Giridih. The petitioner passed the basic training in STC on 16.04.1992 and the petitioner was promoted in the pay scale of Rs. 5500-9000 with effect from 14.07.2009 as evident from Annexure-2 to the writ application. In view of the promotion, the pay of the petitioner was fixed in the pay scale of Rs.19500/- which is evident from the statement made in Form FR22 A(i) as per Annexure-3 to the writ application. The petitioner retired on attaining the age of superannuation on 31.03.2007 and the pension of the petitioner was fixed in reduced scale of Rs.18930/- which ought to have been 19500/- and the LPC issued on 25.03.2011 has been annexed as Annexure-4 to the writ application. The petitioner represented before the respondents ventilating her grievances for fixation of pay scale of Rs. 19500/- as per Annexure-6 to the writ application. 3. Per-contra a counter-affidavit has been filed on behalf of respondent no.3 repelling the contentions made in the writ application. In the counter-affidavit, it has been inter-alia submitted that the due to mistake of some one in the department, the petitioner was getting salary on the pay scale of Rs.19,500/- in anticipation of approval/verification of Finance Department and prior to approval/correction of pay scale of the petitioner by the Finance Department, the petitioner retired from her services while drawing the pay scale of Rs.19,500/- as such she is claiming on the principle of last pay drawn. The pay scale of Rs.19,500/- was not final pay scale in absence of approval/verification of Finance Department as such she can not derive any advantage of wrong pay fixation. The pay scale of Rs.19,500/- was not final pay scale in absence of approval/verification of Finance Department as such she can not derive any advantage of wrong pay fixation. It has further been submitted in the counter-affidavit that the petitioner's existing scale of pay was Rs.5000-150-8000 and pay band applicable to her PB-II (9300-34800), thus, existing basic pay on 01.01.2006 is Rs.7400/-. Pay in the pay band (after multiplication by a factor of 1.86 and rounding off to the next multiple of 10) is Rs. 13770.00/- and after attaching the Grade Pay Rs.4600/- it come to Rs.18370/- payable to the petitioner as on 01.01.2006 and subsequently on 01.07.2006 it is Rs. 18930/-. The Finance Department during the verification detected the wrong pay fixation and accordingly corrected the pay scale of the petitioner in accordance with law, rule and enforceable order of the State applicable to the petitioner and the verification of the Finance Department has been annexed as Annexure-A to the counter-affidavit. It is submitted that the Secretary, Finance Department, Government of Jharkhand, Ranchi vide Resolution no.660/Finance dated 28.02.2009 provided guideline for fixation of revised pay scale as per Annexure-B to the counter-affidavit. The pay scale of the petitioner was fixed Rs. 18370/- as on 01.01.2006 and Rs.18930/- as on 01.07.2006, however, petitioner is at liberty to seek post decision remedial hearing by filing a representation before District Accounts Officer, Bokaro who passed order of correction of pay scale of the petitioner. Therefore, the fixation of Rs.19500/- was wrong fixation and whatever excess amount petitioner received pursuant to pay fixation of Rs.19500/- is without authority of law and it is the settled principle of law that any amount received by the recipient without authority of law, then the said amount recoverable through the process of law. 4. Dr. S.N. Pathak, learned senior counsel for the petitioner has vehemently submitted that the action of the respondents is not justified in fixing the pension in the lower scale of pay i.e. 18930/- which is infraction of Article 14 & 16 of the Constitution of India. Learned senior counsel further submits that the respondents have erred in law and their action is in complete violation of the several decisions of the Apex Court as well as this Hon'ble Court. Learned senior counsel further submits that the respondents have erred in law and their action is in complete violation of the several decisions of the Apex Court as well as this Hon'ble Court. Learned senior counsel for the petitioner has cited the decision rendered in C.W.J.C No. 4141 of 1997 in the case of Ranjit Sahay Jamuar & Another Vs. State of Bihar & Ors. as reported in 1999(1) PLJR 272 wherein the Hon'ble Court has been pleased to hold that the provisions of Rule 58 of Bihar Service Code and Rule 74 of Bihar Financial Rules do not comply to the case of the petitioner where promotions were given not in due time but with retrospective effect nor for any fault on the part of the concerned employee but due to the laches and mistakes committed by the department. 5. As against this, Mr. Atanu Banerjee, learned counsel for the respondents apart from reiterating the submissions made in the counter-affidavit, has assiduously submitted that the respondents are empowered and are within its competence to rectify the scale of pay if there is bona-fide mistake. Moreover, the decision cited by the counsel for the petitioner is not applicable in the instant case. In this respect, learned counsel for the respondents has referred to order dated 18.06.2013 passed in W.P.(S) No. 3112 of 2013 wherein this Court has relied upon the decision of Awadh Bihari Mishra & Ors. and in Ravindra Kumar Ojha & Ors. and held that the petitioner is entitled to get Grade-1 scale from the respective date of her joining and not from the date of completion of the Teachers Training and is entitled to get all consequential benefits accordingly. 6. After having bestowed my anxious consideration to the revalized submissions and on perusal of the records, I am of the considered view that the petitioner has not been able to make out a case for interference due to the following facts and reasons:- (I) In the case in hand, the petitioner was promoted in the pay scale of Rs. 5500-9000 on 14.07.2009 and in view of such promotion, the pay scale was fixed at Rs.19500/- which is evident from Annexure-3 to the writ application. 5500-9000 on 14.07.2009 and in view of such promotion, the pay scale was fixed at Rs.19500/- which is evident from Annexure-3 to the writ application. But as a matter of fact, the petitioner retired on attaining the age of superannuation on 31.03.2007 but subsequently after superannuation of the petitioner the same has been reduced to the scale of Rs.18930/- vide order dated 25.03.2011 Annexure-4. Therefore, the scale of 19500/- was never paid till her retirement i.e. 31.03.2007 but on the other hand scale of pay of Rs.18930/- i.e. the scale which was admissible on the date of his retirement. (II) As per settled law, bona fide mistake can be rectified at any point of time. Had the petitioner got scale of Rs.19500/- during her service career and there would have been reduction of pay scale, certainly the petitioner would have cause of action and the pay scale could not have been reduced without issuance of notice since that would have amounted to reduction of pay being violative of Article 300(A) of the Constitution of India but the situation in the instant case is different. The pay scale of the petitioner was fixed at Rs.19500/- in the year 2010 and subsequently it has been rectified to Rs.18930/-. Therefore, no infirmity can be found in issuing Annexure-4 reducing the scale of Rs.18930/- from Rs.19500/- so as to warrant any interference by this Court. 7. In view of the aforesaid reasons, I am of the considered view that there is no legally tenable grounds to interfere in the writ application as there is absolutely no illegality on the part of the respondents in fixing the pay scale of petitioner nor the action of the respondents can be construed to be a colourable exercise of power. Accordingly, the writ petition sans merit is dismissed. Petition dismissed.