Dilip Kumar Singh vs The State Of Bihar
2023 Latest Caselaw 5324 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.8400 of 2023
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Dilip Kumar Singh Son of Late Ganesh Prasad Singh Resident of Village- Baijnathpur, Police Station- Sitamarhi in the district of Nawada.

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary (Home), Government of Bihar, Patna.

2. The Principal Secretary (Home), Government of Bihar, Patna.

3. The Director General of Police, Government of Bihar, Patna.

4. The Deputy Inspector General of Police, Magadh Range, Gaya.

5. The Superintendent of Police, Nawada.

6. The Treasury Officer, Nawada.

7. The Accountant General, Bihar, Patna.

... ... Respondent/s ====================================================== Appearance :

     For the Petitioner/s    :       Mr. Sunil Kumar, Advocate
     For the Respondent/s    :       Mr. M. Nasrul Huda Khan, SC- 1
                             :       Ms. Babita Kumari, AC to SC-1

====================================================== CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH ORAL JUDGMENT Date : 13-10-2023

Heard Mr. Sunil Kumar, learned Counsel appearing

on behalf of the petitioner and Mr. M. Nasrul Huda Khan,

learned SC- 1 appearing on behalf of the State.

2. The petitioner is aggrieved by the Nawada District

Order No.1115 of 2021 contained in Memo No.170 dated

07.10.2021 issued under the signature of S.P., Nawada, by

which the pension of the petitioner has been revised and vide

Memo No.1214 dated 22.06.2022, the Treasury Officer, Nawada

has been directed to deduct a sum of Rs.3,11,724/- from the

gratuity and pension of the petitioner. The reason for the said

recovery has been stated in paragraph no.7 of the counter- Patna High Court CWJC No.8400 of 2023 dt.13-10-2023

affidavit that a departmental proceeding was conducted against

the petitioner due to which his annual increment was held up for

a period of 6 months.

3. Considering the fact that monetary benefits of

second Assured Career Progression Scheme, with effect from

18.01.2008, was given to the petitioner vide District Order

No.404 of 2010 in the Grade Pay of Rs.4200/-, which was found

to be incorrect by the respondent, which according to

respondent, after proper verification was found to effective from

30.06.2012 as against 18.01.2008, and same required to be

shifted as per date of actual entitlement, from 18.01.2008 to

30.06.2012. During the said period, petitioner had allegedly

drawn higher pay scale from 18.01.2008 till 30.06.2012. The

recovery was accordingly proposed to be made from the

petitioner. The respondents have admitted that petitioner is

entitled for benefit of third modified Assured Career Progression

Scheme from 16.07.2017 in level 7 with pay revision and

monetary benefits effective from 01.04.2017. The Apex Court in

the case of Amresh Kumar Singh & Ors. Vs. The State of

Bihar & Ors. reported in (2023) SCC OnLine SC 496 has held

that :-

"It may be worth noting that the ACP scheme was

enforced on the recommendation of the Fifth Central Pay Patna High Court CWJC No.8400 of 2023 dt.13-10-2023

Commission in context with Group C and D employees and

it provided monetary benefit to the employees on completion

of 12 years and 24 years of regular service who were not

able to get promotion. The scheme as such was anti-

stagnation and envisages merely placement of the

employees in the higher pay scale for the grant of financial

upgradation only without grant of actual promotion. The

benefit of the ACP as such is like granting non-functional in

situ promotion."

4. On perusal of the writ petition it appears that a sum

of Rs.12,29,894/- was sanctioned to be paid to the petitioner

vide PPO order dated 08.01.2022, issued from the office

Accountant General, Bihar (Annexure 3). However, after

deducting Rs.3,11,724/- only Rs.9,18,170/- has been paid to the

petitioner against the total amount of gratuity sanction by the

Accountant General, Bihar. In paragraph no.10 of the writ

petition, it has been stated that, in complete violation of

principle of natural justice, without issuing any Notice to the

petitioner or having provided opportunity of hearing to the

petitioner before deduction of alleged excess amount paid to

him from the total sanctioned amount of Gratuity can not be

sustained.

5. Considering the aforesaid facts, the point which has

to be determined by this Court is, as to whether the respondent's Patna High Court CWJC No.8400 of 2023 dt.13-10-2023

action in recovering the sum of Rs.3,11,724/- from the petitioner

is in accordance with law, which allegedly had resulted due to

incorrect fixation of the salary during the service period of the

petitioner i.e. from 18.01.2008 till 30.06.2012, and the petitioner

was allowed to draw enhanced pay. The respondents have

admitted that the same was due to incorrect fixation of pay and

not due to any misappropriation or misrepresentation or fraud

committed by the petitioner. The petitioner retired from the post

of Sub-Inspector of Police from District Police Force, Nawada

on 31.01.2022 and during the period 18.01.2008 till 30.06.2012,

he was working as a constable which is a Class-III post,

however, he was promoted to the post of Assistant Sub Inspector

in the year 2011. The respondents did not correct their mistakes

at the relevant point of time i.e. 16.07.2017, the date from which

the petitioner was entitled to the benefit of third MACP

(Modified Assured Career Progression Scheme) in level 7, or

even thereafter, till the petitioner had retired on 31.01.2022. The

respondents have erred by their action to recover the amount

without giving any opportunity of hearing to the petitioner and

ignoring the law laid down by the Apex Court in case of Sahib

Ram vs. State of Haryana and Ors. reported in 1995 Supp (1)

SCC 18, and Syed Abdul Qadir vs. State of Bihar reported in Patna High Court CWJC No.8400 of 2023 dt.13-10-2023

(2009) 3 SCC 475, in which the Apex Court has deprecated

recovery in case of employee from whom recovery is made of

the access amount that has been paid to the employee, which

was not because of any misrepresentation or fraud on their part

and the employee also had no knowledge that the amount that

was being paid to them was more than what they were entitled

to. The Apex Court in the case of State of Punjab v. Rafiq

Masih reported in (2015) 4 SCC 334 and recently in the case of

Thomas Daniel Vs. State of Kerala & Ors. reported in 2022

LiveLaw (SC) 438, has reiterated the principle of recovery. The

order of recovery, as contained in Memo No.1214 dated

22.06.2022 under signed by S. P., Nawada, in my opinion has

been passed in complete violation of principle of natural justice

and the law laid down by the Apex Court. Accordingly, the

Nawada District Order No.1115 of 2021 contained in Memo

No.170 dated 07.10.2021, whereby the pay scale of the

petitioner was revised, is set-aside and quashed in the interest of

justice.

6. The petitioner may file a representation before the

Superintendent of Police, Nawada, who will dispose of the

representation of the petitioner in accordance with law laid

down in the case of Sahib Ram (supra) and Thomas Daniel Patna High Court CWJC No.8400 of 2023 dt.13-10-2023

(supra) in which the Apex Court has clarified, interesting sound

decision, that financial upgradation can not be accounted for

promotion on account of stagnation in service, within 6 weeks

from the date of communication of this order.

7. Accordingly, the present writ petition stands

disposed of.

(Purnendu Singh, J.) Ashishsingh/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          19.10.2023
Transmission Date       NA