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2022 DIGILAW 404 (TRI)

Sukanta Gupta v. State of Tripura

2022-11-25

ARINDAM LODH, S.G.CHATTOPADHYAY

body2022
JUDGMENT Arindam Lodh, J. - Heard Mr. A. Bhaumik, learned counsel appearing for writ-appellant. Also heard Mr D. Sarma, learned Addl. Govt. Advocate appearing for the State-respondents and Mr. B. Majumder, learned CGC appearing for the respondent No.5. [2] Impugnment is the judgment and order dated 11.07.2019, passed by the learned Single Judge in WP(C) No. 50 of 2019, titled as Sri Sukanta Gupta v. State of Tripura and Others. [3] By way of filing the writ petition the petitioner had challenged the memorandum dated 16.01.2012 along with Note no.6 dated 20.01.2012 (Annexure-5 to the writ petition) and also the memorandum dated 30.11.2017 along with the letter dated 25.07.2018 which has been issued for the purpose of recovery/denominate the pension. Further, the petitioner has urged this Court to allow the financial benefit in terms of the clarification no.3 issued vide memorandum dated 14.09.2009, which has been withdrawn subsequently by the Finance Department. That apart, the petitioner has urged this Court to release the pension and other retiral benefits accounting on his last pay at Rs.39,600/-(Rupees thirty nine thousand and six hundred) only and 25% of the amount credited to the General Provident Fund (GPF) inasmuch as, the remaining part has already been released to the petitioner. [4] Upon hearing the learned counsel appearing for the parties and on consideration of the pleadings exchanged between the parties, the learned Single Judge on 11/7/2019 in WP(C) No.50 of 2019 held as under: '[18] Therefore, it is declared that the petitioner was not entitled to the benefit of the said increment in view of the memorandum dated 16.01.2012. But, at the same time, the analogy as extended by the respondent No. 5, the Accountant General (A&E) Tripura, is not acceptable to this court. Their observation exudes pedantic view for existence of the rules which provide the regulation of pay. Sub Rule 1 of Rule 10 is so unambiguous that it cannot be applied in other manner, as indicated by this court. Their observation exudes pedantic view for existence of the rules which provide the regulation of pay. Sub Rule 1 of Rule 10 is so unambiguous that it cannot be applied in other manner, as indicated by this court. However, for dispelling any sort of confusion, it is stated that the petitioner was entitled to CAS-1after 10 years of service even if they did not generate any financial benefit but after 17 years of service petitioner was entitled to the second ACP which was granted in favour of the petitioner and similarly the petitioner was entitled to the third ACP on completion of 25 years of service in the manner as stated above. Therefore, there is no illegality in release and consumption of those ACPs as released in favour of the petitioner. Therefore, from the pay of the petitioner only that increment which was released by the office order 08.09.2010 is liable to be deducted but this court in view of State of Punjab v. Rafiq Masih reported in (2014) 8 SCC 883 , where the apex court has categorically stated that if any amount is released at the time of fixation of pay in favour of any employee, if such mistake is not corrected within five years from the date of such release for category of employees particularly for those who are borne in the Group-III & IV, that shall be recovered from them. [19] In view of that the principle of law as laid by the apex court, the respondents are directed not to recover any amount from the petitioner the amount that has been received by him in excess for release of one increment. However, the respondents are given liberty to determine the last pay in view of the observation made hereinabove within a period of two months from the day when a copy of this order shall be placed by the petitioner and release all other retiral benefits within three months there from without fail. Hence, this writ petition stands partly allowed to the extent as indicated above. There shall be no order as to costs.' [5] Mr. Bhaumik, learned counsel appearing for the appellant has submitted that vide memorandum dated 16.01.2012(Annexure-4 to the writ petition), the respondents categorically had stated that the benefits which already provided to the persons concerned including the petitioner and the related matters would not be re-opened. There shall be no order as to costs.' [5] Mr. Bhaumik, learned counsel appearing for the appellant has submitted that vide memorandum dated 16.01.2012(Annexure-4 to the writ petition), the respondents categorically had stated that the benefits which already provided to the persons concerned including the petitioner and the related matters would not be re-opened. According to learned counsel for the appellant, any deduction or stoppage of the future benefit out of the increment they already received, would tantamount to reopening of the matter, and as such, the interference of the learned Single Judge directing the respondents to determine the last pay of the petitioner for the purpose of pension after excluding the benefit he received out of the one increment under the Office Order dated 8.09.2010. [6] We have given our thoughtful consideration to the aforesaid submission of the learned counsel for the petitioner. Considering the entirety of the matter and the law involved in this writ appeal, we can not agree with the submission of learned counsel in this regard. [7] Mr. Bhaumik, learned counsel has also referred another decision passed by the learned Single Judge of this Court in the case of Kinkar Roy vs State of Tripura and others on 03.03.2021 which was decided along with other writ petitions wherein the learned Single Judge directed the respondents not to recover any amount from the petitioner as the amount that has been paid in excess while implementing the clarification [point no. 3] as stated before. However, the respondents are entitled to fix the pay and allowances in terms of Rule 10 (7) of the ROP Rules, 2009 and subsequent revisions. According to us, there is no material conflict in the above 02(two) judgments in regard to extending the benefit of increment for the purpose of determining the pension and other retrial benefits of the appellant-petitioner. [8] On consideration of the above two judgments, as referred to us, we make it clear that the respondents shall not recover any amount from the petitioner, that has been received by him in excess, for release of pension. However, the respondents are given liberty to determine the pension according to last pay of the petitioner after excluding the benefit accrued out of one increment in view of the Office Order dated 8.9.2010. In terms of the above observations and directions, the instant appeal stands disposed.