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Madhya Pradesh High Court · body

2019 DIGILAW 653 (MP)

R. B. Dubey (Dr. ) v. State of M. P.

2019-09-11

VISHAL DHAGAT

body2019
ORDER 1. Petitioner has filed the present writ petition being aggrieved by order dated 30.11.2017 contained in Annexure P-8. By the said order an amount of Rs. 18,21,800/- was adjusted from the anticipated pension of the petitioner and payment of only an amount of Rs. 1616/- and Rs. 20/- was made to petitioner on 22.4.2016. 2. The brief facts of the case are that petitioner was appointed on ad-hoc as Assistant Professor on 1.8.1980. Petitioner after selection from PSC joined on the post of Assistant Professor on 18.9.1986. Petitioner applied for voluntary retirement under Rule 42(1)(a) of Pension Rules. The resignation was accepted by respondents w.e.f. 10.5.2003. The respondents did not count the period of 1.8.1980 to 18.9.1986 when petitioner was serving as ad-hoc Assistant Professor for the purposes of calculating the pension, gratuity and other retiral benefits. Petitioner being aggrieved by the action of respondents had filed Writ Petition No. 3549/2004 before this Court which was allowed. The order passed in writ petition was challenged in Writ Appeal No. 991/2011. The said writ appeal was disposed of vide order dated 3.9.2012 and liberty was granted to the State to examine the matter and pass appropriate order. The High Court passed orders in said writ appeal that matter may be examined by the State Government but no order prejudicial to the interest of petitioner be passed. Respondents considered the case of petitioner and counted 16 years and 7 months of service vide its order dated 30.10.2012 for calculation of pension and retiral benefits. 3. The said order was challenged in Writ Petition No. 10505/2013. This Court decided the writ petition vide order dated 30.9.2013. The writ petition was allowed, impugned orders dated 30.10.2012 and 17.4.2013 were quashed and direction was given to the respondents to take final decision for fixation of retiral claims of the petitioner. It was held by this Court that 5 years service ought to have been added for computation of pension in case there is any shortfall of period granting permission to voluntary retirement. In view of this order respondents have to consider case of petitioner by adding 5 years of service for payment of pension and gratuity amount. The order passed by the Single Bench was challenged in Writ Appeal No. 1303/2013. The said writ appeal is admitted and same is pending for consideration. In view of this order respondents have to consider case of petitioner by adding 5 years of service for payment of pension and gratuity amount. The order passed by the Single Bench was challenged in Writ Appeal No. 1303/2013. The said writ appeal is admitted and same is pending for consideration. An order was passed in the said writ appeal on 12.12.2013 where it has been held that steps taken by respondents on the basis of impugned decision will be made subject to outcome of the writ appeal. There is no stay in the writ appeal and, therefore, retiral and other benefits can be granted to the petitioner but that will be subject to final outcome of the writ appeal on merits, which is pending for consideration. 4. The question which arises in the present case for consideration is whether the respondents have rightly passed order dated 30.11.2017 by which dues were adjusted from the anticipatory pension of the petitioner. Petitioner has relied on the judgment in the case of State of Punjab v. Rafiq Masih, (2015) 4 SCC 334 whereas the respondents have relied on in the case of High Court of Punjab and Haryana and others v. Jagdev Singh. 5. Respondents had filed their reply to the writ petition and stated that anticipatory pension of petitioner was issued on 30.3.2016 for a sum of Rs. 18,39,623/-. Same has been adjusted with PPO and remaining amount of Rs. 1636/- was paid on 22.04.2016. Respondents had taken shelter of rule 65 of the M.P. Civil Services (Pension) rules which deals with recovery and adjustment of government dues. rule 65 is in respect of ascertainable dues and explanation to rule 65 mentions ascertainable dues which includes balance of house building, conveyance advance, arrears or rent and other charges pertaining to occupation of government accommodation, over-payment of pay and allowances and arrears of income tax deductible at source. Such government dues are to be recovered and adjusted before retirement of government servant. As per rule 66(3)(a) efforts shall be made to assess and adjust the recoverable government dues within a period not exceeding six months from the date of retirement of government servant and if no claim is made on government account against a government servant within such a period it shall be presumed that no government claim excluding the claim of house rent and water charges is outstanding against employee. Further, as per rule 66 (4) of Pension Rules if government dues remain unrealized within the period refer to in clause (a) of sub-rule (3) then such dues shall be recoverable from the retired government servant through legal procedure. 6. In view of the above, rule 65 will not help the respondents to recover and adjust the dues of petitioner by passing an order on 30.11.2017. The order was passed more than 13 years after the retirement of the petitioner. As per rule 66, the recovery ought to have been made within a period of six months from the date of retirement otherwise recovery ought to have been done by legal process i.e. by filing a civil suit. In the present case, no notices were given to the petitioner before effecting such recovery and there is violation of principles of natural justice. 7. Looking to the aforesaid facts and circumstances, this writ petition is allowed. The impugned order dated 30.11.2017 is quashed. Respondents are directed to give the benefit of anticipatory pension to the petitioner which will be subject to final outcome of Writ Appeal No. 1303/2013. 8. With the aforesaid direction, this writ petition is disposed of.