Jharkhand High Court
Rameshwar Prasad vs J.S.E.B. & Ors. on 26 February, 2009
Author: Amareshwar Sahay
Bench: Amareshwar Sahay, R.R.Prasad
Letters Patent Appeal No. 118 of 2005
Against the Judgment /Order dated 16/02/2005 passed by the learned Single
Judge in W.P. (S) No. 4087 of 2004.
Rameshwar Prasad.............................. Appellant
Versus
The Jharkhand State Electricity Board, Ranchi & Ors......Respondents
......
For the Appellant : Mr. R.P.Gupta, Advocate
For the Respondent : M/s. A.K.Pandey, Amit Sinha
......
PRESENT
The Hon'ble Mr. Justice Amareshwar Sahay
The Hon'ble Mr. Justice R.R.Prasad
JUDGMENT
C.A.V. on 13/01/2009 Delivered on 26/02/2009
Amareshwar Sahay J This letters patent appeal has been filed against the
judgment/order dated 16/02/2005, passed by the learned Single
Judge in W.P. (S) No. 4087 of 2004, whereby the learned Single Judge
refused to grant any relief to the writ petitioner and consequently,
dismissed the writ petition filed by him.
2. The relevant facts, in short, are that the appellant retired
as Accounts Assistant, from the service of the Jharkhand State
Electricity Board on 31/10/2000. According to him, at the time of
retirement he was getting Rs. 10,120/- p.m. but his pension was
wrongly fixed at Rs. 9670/- p.m. in place of Rs. 10,120/- p.m., i.e. on
the basis of the last pay drawn by him at the time of his retirement.
Challenging the wrong fixation of his pension, he filed WPS No.
2298/2003, which was disposed of by order dated 25/09/2003, giving
him liberty to approach the Secretary of the Electricity Board for
determination as to whether the pension of the writ petitioner was
properly fixed or not. The petitioner/ appellant thereafter, approached
the Board by filing a representation, which was considered and
disposed of by the Secretary of Jharkhand State Electricity Board by
order dated 03/06/2004, holding that the pension of the writ
Letters Patent Appeal No. 118 of 2005
[2]
petitioner/appellant was rightly fixed at Rs. 9670/-p.m. The writ
petitioner/appellant thereafter, challenged the said order dated
03/06/2004of the Secretary, J.S.E.B. by filing W.P.S. no. 4087 of 2004, which has been dismissed by the learned Single Judge by order dated 16/02/2005 against which the present appeal has been filed by the writ petitioner.
3. According to the respondents Electricity Board pursuant to the order and direction of this Court, an enquiry was made by the Audit Department and after enquiry it was found that on 27/05/1975 the writ petitioner/appellant was given pay scale of Sr. Selection Grade on the post of Bill Collector and from 01/04/1976 his post was converted as Accounts Assistant in the same pay scale. The writ petitioner was given the benefit of pay fixation in the Senior Selection Grade. The benefit of conversion of post was given to the writ petitioner, which was not permissible. After enquiry it was found that the writ petitioner was not entitled to additional pay fixation at the time of conversion of the post of Accounts Assistant since as per the rule, pay fixation could not have been done twice in the same pay scale. On enquiry, it was further found that the last pay certificate given to the writ petitioner by the Division Office was wrong and was different from the pay fixation. The last pay drawn by the writ petitioner @ of Rs. 10,120/- was not correct since the Pension Fixation Committee fixed the pension of the writ petitioner @ of Rs. 9670/- on the basis of proper fixation.
4. The learned counsel for the appellant submitted that the pension of the appellant was wrongly fixed at Rs. 9670/- p.m. and it ought to have been fixed on the basis of the last pay drawn by him at the time of superannuation. In support of his submissions, he has relied on a decision of this Court in the case of "Arjun Prasad Yadav- versus- State of Jharkhand, reported in 2003 (4) JCR, 682 (Jhr.)".
Letters Patent Appeal No. 118 of 2005 [3]
5. From the impugned order of the learned Single Judge we find that the learned Single Judge considered the decision of the Division Bench in the case of "State of Jharkhand - versus- Smt. Girish Kumari Prasad, reported in 2004 (2) JLJR 426, in the cases of "Sahib Ram- versus- State of Haryana, reported in (1995) Suple. 1 SCC 18", "Arjun Prasad Yadav- versus- State of Jharkhand, reported in 2003 (4) JCR, 682 (Jhr.)" and in the case of "Narayan Singh- versus-State of Jharkhand, reported in 2004 (1) JCR 324" and, thereafter, held that no employ can claim right over a benefit which he got wrongly or by mistake, on the ground of long lapse of time or equity. It is the duty of the State Government/Government Instrumentalities to follow the direction contained in paragraph-6 of the judgment of "Smt. Girish Kumari Prasad" (Supra) and stop this racket without any further delay.
The learned Single Judge after relying the decision of the Division Bench in the case of "Smt. Girish Kumari Prasad" (Supra) dismissed the writ petition.
6. The judgment of the Division Bench in the case of "Smt. Girish Kumari Prasad" (Supra) was considered by a Full Bench in the case of "Smt. Normi Topno- versus- State of Jharkhand" reported in 2007 (4) JLJR 466". The facts of the said case were that Smt. Normi Topno retired from service as A.N.M. from Primary Health Centre on 30/09/1999. Her pension paper was sent to Accountant General. On scrutiny, it was found that she was wrongly granted time bound promotion and, therefore, the Accountant General returned the paper for clarification. The Department scrutinized the papers and found that she was wrongly given time bound promotion and, therefore, the pension papers were forwarded to the Accountant General for recovery of Rs. 50,456/-, the excess amount paid to her from her pension/ gratuity. This was challenged by her by filing a writ petition, which was Letters Patent Appeal No. 118 of 2005 [4] dismissed by the learned Single Judge holding that the recovery was justified in view of the Division Bench's judgment in the case of "State of Jharkhand - versus- Smt. Girish Kumari Prasad, reported in 2004 (2) JLJR 426" and in the case of "Ram Chandra Singh- versus- State of Jharkhand & Ors., reported in 2005 (2) JLJR 705". The order of the Single Judge was challenged in the appeal, which was referred to larger Bench. The Full Bench held as follows:-
"After retirement, there is no relationship of employer and employee and as such no recovery can be made from the retrial benefits without following procedure of law as provided under Rule 43 (b) of the Bihar pension rules. Hence, without fulfilling the conditions under Rule 43 (b) and without canceling he order of promotion after enquiry by the competent authority, pension and other retrial benefits cannot be recovered that too without giving opportunity to the retired employee and without giving any finding with reference to the misrepresentation or misconduct on the part of the concerned employee or any other employee merely on the recommendation of audit objection."
The Full Bench further held that the order for recovery of the amount from the retirement benefit was illegal and, therefore, the same was quashed.
7. The facts of the present case are quite different. In this case there is no order for recovery of any amount from the retiral dues of the appellant. The grievance of the writ petitioner/appellant is only this much that his pension has wrongly been fixed at Rs. 9670/- p.m. in place of Rs. 10120/- p.m., as per the last pay drawn by him.
From the facts stated herein above, I find that pursuant to the order of this Court in the earlier writ petition, filed by the present appellant, an enquiry was conducted as to whether the pension of the writ petitioner was rightly fixed or not and in that enquiry it was found Letters Patent Appeal No. 118 of 2005 [5] that the pension of the writ petitioner was correctly fixed @ of Rs. 9670/-p.m. and the last pay certificate given to him, was wrongly granted since he was not entitled to get the additional pay fixation at the time of conversion of the post of Accounts Assistant. The writ petitioner/ appellant do not dispute this fact.
8. The question as to whether any monetary benefit, which was given to the writ petitioner/appellant, which, he was not entitled to get, could have been rectified subsequently when the said mistake was detected subsequently is the question to be decided in the present case.
9. In "Sahib Ram- versus- State of Haryana, reported in (1995) Suple. 1 SCC 18" (Supra) the Supreme Court, in the facts of that case, held that the relaxation given to the appellant was not justified since he did not posses the required educational qualification for the said relaxation. However, the Supreme Court ordered that since the said relaxation was not given to the appellant on account of any misrepresentation made by him but benefit of higher pay scale was given to him by wrong construction made by the Principal for which the appellant cannot be held to be at fault and, therefore, the amount paid to him in excess was ordered not to be recovered from him.
10. The Division Bench in the case of "State of Jharkhand - versus- Smt. Girish Kumari Prasad, reported in 2004 (2) JLJR 426", in the facts of that case, where the writ petitioner was given time bound promotion due to an error committed by some one though the writ petitioner was not entitled to the same, held that such error in giving time bound promotion to the writ petitioner when it was not due, could not clothe the writ petitioner with any special right.
11. The Supreme Court in the case of "Union of India- versus- S .R. Dhingra & Ors., reported in (2008) 2 SCC 229" also held that correction of clerical mistake in calculating pension, which was initially Letters Patent Appeal No. 118 of 2005 [6] calculated wrongly, revision of pension on account of mistaken calculation is permissible. It was also held that the mistake does not confer any right and the same can be corrected.
12. In the present appeal, I find that after enquiry it was found that the pay fixation of the writ petitioner/ appellant was wrongly made and, thereafter, the said mistake has now been rectified after it was found that the writ petitioner/appellant was not entitled to get the said monetary benefit, therefore, in my view, the learned Single Judge has rightly held that no employee can claim right over a benefit which he got wrongly or by mistake on the ground of long lapse of time or equity.
14. In view of the discussions and findings above, I do not find any error in the impugned judgment/order of the learned Single Judge. Accordingly, having found no merit, this letters patent appeal is dismissed.
(Amareshwar Sahay, J) R.R.Prasad, J.
(R.R.Prasad, J) Jharkhand High Court, Ranchi The 26th February 2009 NAFR/Mukund