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2018 DIGILAW 1899 (JHR)

Shekhar Kumar Jha v. State Of Jharkhand

2018-08-20

PRAMATH PATNAIK

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JUDGMENT Pramath Patnaik, J. - In the captioned writ application, the petitioners have inter alia prayed for direction upon the respondents not to recover/deduct any amount of money from the petitioners, pursuant to order dated 21.04.2011, whereby order has been passed to recover the alleged excess amount paid to the petitioners. 2. The factual matrix, as delineated in the writ application, in brief is that the petitioners, who are Assistant Teachers working in the district of Ranchi, after serving considerable period of time were promoted from Grade-I to Grade-II in between 09.09.2006 to 17.03.2009 i.e. after the effective date of Revision of the scale of pay for the State Government employees, as per Resolution dated 28.02.2009. It has been averred that as per the said Resolution, the pay of petitioners were fixed, which was duly approved by the then District Superintendent of Education, Ranchi and District Accounts Officer, Ranchi. Accordingly, the petitioner were drawing salary from their respective date of promotion. But, all of a sudden the respondent no. 6 vide order dated 21.04.2011, which is impugned in this case, directed the respective Drawing and Disbursing Officer to fix the pay under para 22 (1) (A) (2) of the Fundamental Rules vide letter dated 21.04.2011 and recover the excess amount in one instalment. 3. Heard Mr. Jai Prakash Jha, learned senior counsel for the petitioners and Mr. Dhananjay Kumar Dubey, Sr. S.C. I for the respondents. 4. Learned senior counsel for the petitioners submitted that the petitioners under R.T.I Act came to know that memo dated 16.11.2000 of the Finance Department, Govt. of Bihar is the basis on which the impugned order has been passed. But, from perusal of memo dated 16.11.2000, it appears that it relates to 5th Pay Commission Report where the pay-fixation was required to be done under Para 22 of the Fundamental Rules as indicated in Commission Report and the same is not applicable in the case of petitioners, as such the order of recovery of alleged excess payment of pay that too in one instalment is clearly in contravention of 6th Pay Commission Report. Even otherwise also, after creation of State of Jharkhand on 15th November, 2000 any resolution/circular or order of State of Bihar is not applicable in the State of Jharkhand; hence the resolution dated 16.11.2000 passed by the State of Bihar is not applicable to the State of Jharkhand, in particular with regard to service condition and pay-scale of the petitioners. On merit of the case, learned senior counsel for the petitioner submitted that as per Para 13 of the Resolution dated 28.02.2009, which deals with the fixation of pay on promotion from one grade of pay to another in revised structure, the petitioner is very much entitled to the benefit of increments(s), as granted earlier. 5. As against this, learned counsel for the respondents submitted that the petitioners, who were working as assistant teachers in different primary schools, were granted promotion in Grade II as per Rule 6 (1) of the Bihar Taken Over Elementary School Teachers Promotion Rules, 1993. But, instead of fixing their pay-scale as per Rule 22 (1) (a) (2) of the Fundamental Rules, pay have wrongly been fixed as per the provisions contained in Rule 22 (1) (a) (1) of the Fundamental Rules. In this regard, it has further been submitted that Secretary of the Education Department, Govt. of Bihar vide letter dated 16.11.2000 has also issued specific direction at paragraph 3, which reads as under: "pay of the elementary school teachers on promotion to senior scale shall be fixed as Fundamental Rules - 22 (1) (a) (2), because after promotion in senior payscale, duties and responsibilities of these teachers does not change." 6. It has further been submitted that since the duties and responsibilities of teachers promoted from Grade -I to Grade -II does not change, pay of petitioners are to be fixed as per Fundamental Rules 22 (1) (a) (2) issued by the Govt. of India. So far applicability of the said letter dated 16.11.2000 issued by the State of Bihar is concerned, that has been adopted by the State of Jharkhand vide letter no. 106/F dated 16.12.2000. 7. Learned counsel for the respondents further submitted that similar matter came up before Hon''ble Patna High Court, where the Hon''ble Division Bench directed that the excess amount paid to the employees in breach of FR 22(1) (a) (2) be recovered without interest in at least 50 installments. 106/F dated 16.12.2000. 7. Learned counsel for the respondents further submitted that similar matter came up before Hon''ble Patna High Court, where the Hon''ble Division Bench directed that the excess amount paid to the employees in breach of FR 22(1) (a) (2) be recovered without interest in at least 50 installments. Being aggrieved thereof, the appellants (Syed Abdul Qadir & Ors Vs. State of Bihar & Ors) went to Hon''ble Apex Court, wherein the Hon''ble Apex Court has held that FR 22(1) (a) (2) shall apply to the teachers w.e.f 20.02.1993. However, admittedly, so far recovery of the amount that has been paid in excess to the appellant was set aside. 8. After bestowing my anxious consideration to the submissions advanced by learned counsel for the parties and the laws laid down by Hon''ble Apex Court in the case of Syed Abdul Qadir , I am of the considered view that since the excess amount that has been paid to the petitioners was not because of any misrepresentation or fraud on their part, order of recovery dated 21.04.2011 has no leg to stand. 9. Accordingly, order dated 21.04.2011 so far recovery part is concerned, is quashed and set aside and it is directed that no recovery of excess amount shall be made from the petitioners. In the fitness of things, it is made clear that if any amount is recovered that should be refunded to the petitioners within a period of eight weeks from the date of receipt/production of copy of this order. 10. The writ petition stands allowed to the aforesaid extent.