Jitendra Kumar Singh vs The State Of Jharkhand
2021 Latest Caselaw 1887 Jhar

         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      W.P. (S) No. 4151 of 2017
         Jitendra Kumar Singh, son of Late Basudeo Singh, at present-Resident
         Of- Ram Nagar, Kurthol, P.O. Kurthol, P.S. Punpun, District-Patna,
         Bihar.                                              ...          ...         ...Petitioner
                                   -Versus-
         1. The State of Jharkhand.
         2. Principal Secretary, Water Resources Department, Government of
            Jharkhand, Nepal House, P.O. and P.S.- Doranda, Dist. Ranchi.
         3. Under Secretary, Water Resources Department, Govt. of Jharkhand,
            Nepal House, P.O. and P.S.- Doranda, District-Ranchi.
         4. Engineer-in-Chief, Water Resources Department, Government of
            Jharkhand, Nepal House, P.O. and P.S.-Doranda, District-Ranchi.
         5. Chief Engineer, Water Resources Department, Government of
            Jharkhand, Nepal House, P.O. and P.S. Doranda, Dist. Ranchi.
         6. Accountant General (A & E), Jharkhand, P.O. and P.S.-Doranda,
            District-Ranchi, Jharkhand.                      ...         ...        ...Respondents
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CORAM: THE HON'BLE MR. JUSTICE DR. S.N.PATHAK

For the Petitioner : Mr. A.Allam, Sr. Advocate.

         For the Respondent-State         : Mr. Kaushik Sarkhel, G.P. IV.
         For the Accountant General       : Mr. Sudharshan Srivastava, Advocate.

         C.A.V. on 18.03.2021                         :Pronounced on 14.06.2021
                          ------------

Dr. S.N.Pathak,J.     The petitioner has approached this Court with a prayer for quashing the

Letter No. 1539, dated 24.03.2017, issued by the Under Secretary, Department of

Water Resources, Government of Jharkhand, Ranchi whereby and whereunder the

Accountant General (A & E) had been instructed to deduct four increments from the

salary of the petitioner admissible w.e.f. 01.07.2012 and on the basis of the same, the

pension was directed to be revised and the salary paid in excess was directed to be

deducted from the pension of the petitioner to the extent of Rs. 2,34,799.00. Further

prayer has been made for a direction upon the respondents for payment of full salary

to the petitioner on the basis of L.P.C. and in view of salary drawn for the month of

January, 2016 and also for payment of full pension.

It has been further prayed for direction upon the respondents to refund the

deducted salary for the period from of 01.07.2012 to 31.01.2016 as also the deducted

pension.

2. As per factual matrix, the petitioner was appointed as a Junior Engineer on

02.02.1979 in the erstwhile State of Bihar in the pay scale of Rs. 335-10-395 and

retired from the post of Assistant Engineer on 31.01.2016. At the time of retirement,

his pay was Rs. 31,030/- in the grade pay of Rs. 7600/- and basic salary of Rs.38,360/-

plus other admissible allowances. Benefits of first time bound promotion was

extended to the petitioner with effect from 27.08.1990 in the pay scale of Rs. 1640-

60-2600-75-2900 vide letter No. 5560 dated 27.08.1990. The pay scale of the

petitioner was again revised on 08.02.1999 in the pay scale of Rs.5,000-150-8,000.

Later on, Water Resources Department vide its letter No.742 dated 02.04.2007 issued

an order under which the First ACP was allowed to the petitioner and his salary was

fixed in the pay scale of Rs. 6,500-200-10,500 w.e.f. 14.08.2002 in view of letter No.

5207, dated 14.08.2002 issued by the Finance Department, Govt. of Jharkhand.

Further, 2nd A.C.P. was allowed with effect from 02.02.2003 in the scale of Rs.

10,000-325-15200. Thereafter the salary of the petitioner was revised w.e.f.

01.01.2006 at Rs.15,600 G.P. 7600, total basic 21,100/- in the 6th pay Revision. The

petitioner was also allowed MACP w.e.f. 02.02.2009 in the scale of Rs. 22,930-GP.

7,600, total basic Rs. 30,530/-. Subsequently the petitioner was promoted to the post

of Assistant Engineer vide letter No.2005 dated 20.04.2011.

3. It is specific case of the petitioner that though he had received all due

benefits during his service tenure but just after his retirement while fixing the

pensionary benefits, the respondents illegally deducted the salary on the basis of

wrong notion contrary to the several circulars and orders of the Government of Bihar

and Jharkhand. All of a sudden the State of Jharkhand through its Under Secretary

issued a letter vide Memo No. 1533 dated 24.03.2017 under which it was instructed

to the Accountant General (A & E) Jharkhand to deduct an amount of Rs. 2,34,799/-

which has been drawn by the petitioner due to wrong fixation of pay w.e.f. 1.7.2012

on promotion and pension was directed to be fixed/revised accordingly. Aggrieved

thereto, the petitioner has knocked the door of this Court for quashment of Letter No.

1539, dated 24.03.2017.

4. Learned Sr. Counsel Mr. A. Allam strenuously urges that once the

benefits of the A.C.P. has been granted to the petitioner duly affirmed and approved

by the competent authorities of the Department/State, the same could not have been

taken away arbitrarily and the amount paid to the petitioner in view of A.C.P.s could

not have been deducted from the pension after his retirement.

5. It has been further argued by the learned Sr. Counsel that though the

petitioner had cleared all the examination but was disqualified in one of the papers

and at that point of time he had completed 50 years of age. He made representation

dated 01.09.2012 for exempting him from the examination as per the departmental

Rule. However, the said representation was never considered and no order was passed.

The petitioner having fulfilled all the criteria enumerated in the Rules was duly

entitled for exemption and further other similarly situated persons were exempted

from the examination upon attaining the age of 50 years and were given the benefits

but the petitioner was denied the aforesaid benefit. It was further contended that

rightly the benefits were granted to him which could not have been arbitrarily snatched

away by the respondents after retirement without adhering to the procedures of law.

6. Learned Sr. Counsel further submits that the Accountant General is not

an authority to reduce the amount of pension which was already fixed on the basis of

last Pay drawn by the petitioner. Learned Sr. Counsel in order to buttress his

arguments, relied on the Full Bench decision of this Court in case of "Laxman Prasad

Gupta Vs. State of Jharkhand", reported in 2007 (4) JLJR 459, and also in case of

"Smt. Normi Topno vrs. State of Jharkhand" reported in 2007 (4) JLJR 466. He

further submits that pension of the petitioner should be fixed on the basis of last pay

drawn on the date of retirement.

7. Per contra, counter-affidavit has been filed.

8. Mr. Kaushik Sarkhel, learned Counsel appearing for the State argued that

based upon corrected pension paper, admissible pension/gratuity with amount payable

towards commutation of 40% of pension were sanctioned vide letter No.1533 dated

24.03.2017 and was sent to office of Accountant General, Jharkhand Ranchi to issue

authority slip in favour of petitioner with a direction to deduct an amount to Rs.

2,34,799/- paid to the petitioner due to erroneous pay fixation and a copy of the same

was also forwarded to the petitioner. Similarly sanction for payment of leave

encashment was also accorded vide letter no. 1532 dated 24.03.2017 with a copy to

the petitioner as well.

9. Learned Counsel further submits that under the provision of Jharkhand

Public Works Department Code, an Assistant Engineer is required to pass two distinct

examinations namely departmental examination and professional examination as

stipulated in Chapter-I, Sec-H, para 55 of PWD Code for grant of annual increment.

The petitioner appeared in the professional examination held in the year 2011 onwards

till his retirement but failed to clear the same, although professional examinations have

been conducted during this period by Water Resources Department, Govt. of

Jharkhand. It is further submitted that for getting the benefits of annual increments it

was necessary to pass the professional as well as departmental examination as per

Rules and as the petitioner failed to clear professional examination rightly annual

increment granted earlier was withdrawn.

10. Mr. Sudarshan Srivastava, learned Counsel appearing for the Accountant

General argues that it is admitted fact and settled principle of law that an employee is

entitled for fixation of pension as per the last Pay drawn by him. Regarding restoration

of four increments from 04.01.2012 to 31.01.2016, the department concerned vide

letter No.2505 dated 04.08.2016 has intimated that petitioner was not pass in one paper

namely "Canal Law A" of Professional Examination. It is further argued that granting

exemption from Departmental Examination is a departmental matter and the

Accountant General has no role to play in the matter.

11. Having gone through the rival submissions of the parties, this Court is of

the considered view that after retirement, no recovery/any reduction can be made from

the pension of an employee which has been categorically held in a catena of decisions,

particularly, in case of "State of Punjab & Ors. vs. Rafiq Masih" (white washer),

reported in 2015 (4) SCC 334, wherein it was observed that even prior to one year of

retirement, the amount from the pension cannot be recovered/reduced. In paragraph

No.18 of the aforesaid judgment, the Hon'ble Supreme Court has held as under:

"18. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even

though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."

12. Since the petitioner had already represented before the authorities for

taking a conscious decision for exemption in the year 2012 (01.09.2012) and other

similarly situated persons were also exempted from clearing the departmental

examination this Court finds force in the submission of learned Sr. Counsel and from

perusal of the documents brought on record it appears that no proceeding was ever

initiated against the petitioner neither in the entire service career the petitioner was

inflicted with any punishment. The service records were very clear and never any

stigma was attached. The petitioner appeared in the examination, tried his best to clear

all the papers but unfortunately in one paper he was not declared successful for which

he represented for exemption prior to his retirement. Nothing has been brought on

record to show that the petitioner was not entitled for exemption as per the Rules

which is at Annexure-G page 57-58 of the counter-affidavit.

13. In view of the aforesaid observations, rules, guidelines and judicial

pronouncements, I hereby, direct the respondent No.3- Under Secretary, Water

Resources Department, Govt. of Jharkhand to verify the service book of the petitioner

and if at all, it is required, the same be sent to the Accountant General for re-fixation

of the pension of the petitioner in accordance with law taking into consideration the

Full Bench judgment passed by this Court in case of "Smt. Normi Topno" (supra)

and that of "Rafiq Masih" (supra) passed by the Hon'ble Apex Court.

14. As a sequel to the aforesaid observation, the order passed by the Under

Secretary, Department of Water Resources, Jharkhand dated 24.03.2017 is not

sustainable in the eyes of law and as such the same is hereby quashed and set aside.

15. The respondents are hereby directed to make suitable and necessary

correction for fixing the amount of pension in the last Pay Scale drawn by the

petitioner at the time of retirement and if any amount has been recovered or reduced,

the same should be refunded to the petitioner within six weeks from the date of receipt

of a copy of this order.

16. Resultantly, the writ petition stands allowed.

[Dr. S.N.Pathak,J.]

P.K.S.