Jharkhand High Court
Anuj Hazari vs The State Of Jharkhand on 14 July, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 4143 of 2020
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Anuj Hazari ... Petitioner
-versus-
1. The State of Jharkhand
2. The Secretary, Department of School Education & Literacy, Government of
Jharkhand, Project Bhavan, Dhurwa, Ranchi.
3. The Director, Primary Education, Department of School Education &
Literacy, Government of Jharkhand, Project Bhavan, Dhurwa, Ranchi.
4. The District Superintendent of Education, Godda.
5. The Accountant General, Government of Jharkhand, Doranda, Ranchi.
... Respondents
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN
THROUGH VIDEO CONFERENCING
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For the Petitioner : Mr. Rishikesh Giri, Advocate
For the Respondents : Mr. Devesh Krishna, S.C. (Mines) III
Mr. Sudarshan Srivastava, Advocate
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5/ 14.07.2021 Heard learned counsel for the petitioner and the learned counsel
appearing for the respondents through Video Conferencing. The lawyers have
no objection with regard to the proceeding, which has been held through Video
Conferencing today at 11.00 a.m. They have no complain in respect to the
audio and video clarity and quality.
2. The prayer of the petitioner in this writ petition is for a direction
upon the respondents to fix the pension of the petitioner on the last salary
drawn, i.e., on Rs.87,700/- and not on Rs.85,110/-. Counsel for the petitioner
submits that the petitioner was appointed as an Assistant Teacher (B.Sc.
Trained) in Middle School, Poreyahat, Godda on 24.05.1988. After completing
31 years of service, he superannuated from the post of Head Master from
HMM Boys School, Pathargama, Godda on 31.01.2020. He submits that at the
time of superannuation, he was receiving salary to the tune of Rs.87,700/- and
that being the salary drawn, his pension should have been fixed considering
the aforesaid salary. In a most arbitrary manner, the respondents have fixed
his pension considering his last drawn salary as Rs.85,110/-, which is illegal,
as the pension has to be fixed on the last drawn emoluments. Thus, he
submits that wrong calculation has been made and his pension has been
reduced. Counsel for the petitioner lastly submits that several persons have
been granted similar benefit, but, the petitioner has been denied the same.
Petitioner also prays that arrears should be granted.
3. Counsel appearing for the State-respondents submits that the
petitioner was promoted from Grade '7' to Grade '8', but, he was not entitled to
get additional increment. He submits that unlawfully an additional increment
was given to the petitioner, which stood rectified and his last pay certificate
was revised in view of Government Resolution dated 11.07.2019. He submits
that, in compliance of a judgment of the Hon'ble Supreme Court in Civil Appeal
Nos. 3351-3354 of 2003, aforesaid resolution was passed. He submits that in
terms of paragraph 40 of the said judgment, the benefit of additional
increment, which was available to the government servants, could not be
available to the said government employee if the higher post he is promoted or
appointed to does not carry duties and responsibilities of greater importance
than those attaching to the post held by him. He further submits that this High
Court in similar circumstances in a batch of writ petitions with writ petition
being W.P.(S) No.2072 of 2017 has concluded that the additional increment is
not payable. It is submitted that the petitioner was granted additional
increment, which he was not entitled to, thus, correction was made in his pay
scale. By referring to the counter affidavit, counsel for the State fairly submits
that though the pay scale of the petitioner has been rectified, yet the State will
not recover the amount, already paid in excess, from the petitioner.
4. After hearing the parties, I find that the petitioner was given
additional increment, which he was not entitled. When a person is not entitled
to a benefit and the same has been wrongly granted to the said person, it is
well within the jurisdiction of the employer to rectify the defect and correct the
wrong which has been committed. After correcting the irregularity or illegality
the correct benefit, which the person is entitled to receive, should be granted
to him. It cannot be said that a wrong or illegality, which has been committed,
can be allowed to continue for the years to come. Once a wrong comes to the
knowledge of the authorities, the authorities are bound to correct the same,
though after following the due process of law. In the instant case, it is admitted
that the increment was wrongly granted to the petitioner. When the increment
was wrongly granted to the petitioner, it was well within the domain of the
respondents to correct their action and grant the actual and correct benefit,
which the employee is entitled to receive. This has been done in this case.
Thus, I find no illegality in the action of the respondents in correcting the
illegality. Be it noted that the petitioner has superannuated and his pension
has been fixed as per the scale, which the petitioner is entitled to receive. If
the prayer of the petitioner is accepted that he is entitled to receive pension at
the last pay, it will amount to perpetuating an illegality, which this Court cannot
be a party to.
5. Since a fair stand has been taken by the respondents that they
are not recovering the amount, which the petitioner has received in excess,
this Court feels that no prejudice is caused to the petitioner. Respondents
have rightly fixed the pay scale of the petitioner and assessed the pension on
the said scale, which the petitioner was actually entitled to receive. The
submission of the petitioner that similarly situated persons have been granted
the said benefit cannot be accepted. There cannot be equality in illegality.
Further, the respondents have taken a specific stand before this Court that
service books of those employees have also been sent for correction.
6. Considering the aforesaid facts, I find no illegality in fixing the
pension of the petitioner on the basis of a pay scale, which the petitioner was
legally entitled to receive, on the basis of resolution dated 11.07.2019.
7. Thus, this writ petition is dismissed.
(Ananda Sen, J.)
Kumar/Cp-02
