Jharkhand High Court
Rewati Raman Sinha vs The State Of Jharkhand Through Its Chief ... on 2 August, 2023
Author: S. N. Pathak
Bench: S.N.Pathak
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No.6380 of 2018
1. Rewati Raman Sinha
2. Oliva Kujur
3. Sosan Selina Kujur
4. Mridubani Minz (Kujur) ... Petitioners
Vs.
1. The State of Jharkhand through its Chief Secretary, Government of
Jharkhand, Project Bhawan, Dhurwa, Ranchi
2. Director, Secondary Education, Government of Jharkhand, Project
Bhawan, Dhurwa, Ranchi
3. Regional Deputy Director of Education, South Chotanagpur Division,
Ranchi ...
Respondents
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CORAM: HON'BLE DR. JUSTICE S.N.PATHAK For the Petitioner : Mr. A.K. Sahani, Advocate For the Respondents : Dr. Vandana Singh, Sr.SC-III
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09/ 02.08.2023 The petitioners have approached this Court with a prayer for quashing and setting aside Memo No. 480 dated 05.04.2018, whereby and where under, the pay scale of the petitioners has been modified and direction was issued to take steps for recovery of the alleged excess payment.
2. The case of the petitioners lies in a narrow compass. The petitioner Nos. 1 to 3 were working to Class-III post in the office of District Superintendent of Education, Ranchi and petitioner No.4 was working in the office of Sub Divisional Education Officer, Ranchi and petitioner Nos.1, 2, 3 and 4 retired from services on 31.07.2009, 31.01.2004, 31.08.2014 and 31.07.2013 respectively from the office of the respondents. During the service period, the petitioners were granted promotion to the post of Head Clerks vide Memo No. 1110 dated 14.06.2003. The pay scales of Rs.4500- 7000 was replaced by the pay-scale of Rs.5000-8000, whereas the pay-scale of Rs.5000-8000 was replaced to Rs5500-9000 and the order to this effect was issued by respondents vide Memo No.661 dated 18.05.2011. The respondents had taken aforesaid decision in light of the fact that there were 2 two ladders of promotion of the cadre of the Divisional Ministerial Education Service, Vide Memo No. 661 dated 18.05.2011 that the pay scale of Rs. 4500-7000/- were replaced to Rs. 5000-8000/- and pay scale of Rs. 5000-8000/- was replaced to 5500- 9000/-. It is specific case of the petitioners that after attaining the age of superannuation, petitioner Nos. 1, 2, 3 and 4 retired from services on 31.07.2009, 31.01.2004, 31.08.2014 and 31.07.2013 respectively and thereafter, pension was sanctioned. However, almost after 5 year of fixation of pension, the respondents passed impugned order contained in Memo No. 480 dated 05.04.2018, whereby and where under, the pay scale of the petitioners has been reduced from Rs.5000-8000 to Rs.4500-7000 and from the pay scale of Rs.5500-9000/- to Rs.5000-8000. Aggrieved by the same, the petitioners have been constrained to knock the door of this Court.
3. Mr. A.K Sahani, learned counsel for the petitioners submits that impugned order dated 05.04.2018 is not tenable in the eyes of law as no departmental proceeding was ever initiated against the petitioners in terms of 43 (b) of the Jharkhand Pension Rules and neither any Memo of Charge was framed nor Inquiry Officer was ever appointed and as such, without following the due procedure laid down under the law, impugned order has been passed. He further submits that impugned order has been passed after more than three years from the date of sanctioning the pension to the petitioners as the pension of the petitioner Nos.1, 2, 3 and 4 were sanctioned prior to five years of issuance of impugned order. It is well settled law that grant of ACP/Promotions to Class-III employees cannot be revised/reversed either when they are at the verge of retirement or after retirement and in the present case, the pay-scale granted to them, by way of promotion has been sought to be revised after almost five years from the date of fixation of pension, which is illegal, arbitrary and not in accordance with law and as such, impugned order is liable to be quashed and set aside by this Court. He further submits that similar issue has already been decided by this Hon'ble Court vide order dated 14.05.2020 passed in W.P.(S) No.505/2018.
4. Per contra, counter-affidavit has been filed.
5. Ms. Vandana Singh, learned counsel appearing on behalf of 3 the respondents vehemently opposes the contention of the learned counsel for the petitioners and argues that petitioners are not entitled for the pay- scale of Rs.5000- 8000/- and 5500-9000/- upon grant of 1st and 2nd ACP rather they are entitled for the pay scale of Rs. 4500-7000/- and 5000-8000/- respectively. Similarly, they are not entitled for the grade pay of Rs. 4600/- and Rs.4800/- on the basis of 2nd and 3rd MACP rather they are entitled for the grade pay of Rs. 4200/- and Rs.4600/- on the basis of 2nd and 3rd MACP respectively, so the Divisional Establishment Committee has rightly reduced their pay scale as per Rule after considering the relevant Circulars/Resolutions. She further submits that the petitioner had misled the authorities and had succeeded in obtaining higher pay scale and on the basis of higher pay scale, they have taken excess payment from public exchequer and as such, the pay-scale which was wrongly fixed, requires rectification. There is no illegality or infirmity in the impugned order.
6. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioners needs consideration. The issue involved in this writ petition is no more res integra as in catena of decisions, this Court as well as Hon'ble Apex Court has held that any amount visited with civil or evil consequences, cannot be revised/adjusted/recovered after retirement without following the principles of natural justice and without adhering to the legal propositions of law. In the instant case, it is an admitted case that without adhering to the cardinal principles of natural justice as well as without following the provisions of Pension Rules, the impugned order has been issued and the pay-scale of the petitioners have been revised after more than 5 years of fixation of their pension. Admittedly, the petitioner Nos. 1, 2, 3 & 4 have retired from services on 31.07.2009, 31.01.2004, 31.08.2014 and 31.07.2013 respectively and thereafter, pension was sanctioned, and more than 6 years from the date of grant of ACP/MACP benefits, impugned order/ benefits of ACP/MACP have been sought to be revised. At this stage, it is not open to the respondents to raise the question of legality and propriety of promotion /ACP/MACP as was granted in favour of the petitioners while they were in service. Even if such orders are recalled, the respondents neither can recover any amount nor can down 4 grade the last pay or revise the pay-scale as well as pension, in absence of any proceeding under Rule 43 B of the Jharkhand Pension Rules. Any interference in the pay-scale and consequential benefits without adhering to the provisions of law, relevant Pension Rule and without following the cardinal principles of natural justice, is illegal and arbitrary. The respondents have failed to produce any document, showing that procedures have been followed and Pension Rule has been taken care of before revising the pay-scale already granted to the petitioners more than 5 years of fixation of their pension. This Court in case of Nakul Raut Vs. State of Jharkhand & Ors, reported in 2002 (1) JCR 103 at para 6 has clearly held thus:-
6. Admittedly, the petitioner retired from the services of the State on 31.1.1999. He was granted promotion to senior selection grade while he was in service. After retirement and more than three years from the date of promotion, now it is not open to the respondents to raise the question of legality and propriety of promotion as was granted in favour of petitioner while he was in service. Even if such order is recalled, the respondents cannot recover any amount from the petitioner, nor can lower down the last pay actually drawn by him. In the aforesaid background, if the respondents of their own have requested the Accountant General to fix the pension and gratuity on the basis of last pay actually drawn by petitioner i.e. Rs. 7700/-, the Accountant General, Bihar should fix the same accordingly and should issue appropriate payment order in favour of petitioner immediately but not later than a period of one month from the date of receipt/production of a copy of this order.
7. Same view was reiterated by this Court in case of Janki Prasad Sharma Vs. State of Jharkhand & Ors. reported in 2009 (1) JCR 491, which reads as under:-
It may be mentioned that the respondents cannot reopen the issue relating to legality and propriety of order of promotion to selection grade as was allowed to petitioner while he was in service at this belated stage, nor can recover any amount, there being no proceeding under Rule 43(b) of the Bihar Pension Rules having initiated." In the present case also, there is no dispute of the fact that no proceeding under Rule 43(b) of the Bihar/Jharkhand Pension Rules has been initiated against the petitioner rather from the counter affidavit filed by the respondent-State, it appears that by issue of Annexure-B to the counter affidavit, order has been passed for fixation of pension at lower stage. The point in issue in the present case is fully covered by the decision of Nakul Raut Case (Supra).
8. The Hon'ble Division Bench of this Court in case of State of Jharkhand & Ors. Vs. Baleshwar Singh & Anr., reported in 2006 SCC 5 online Jhar 892 at para 16 has held thus:
16. It will be evident that the competent authority, which is empowered to sanction pension, can reduce pension under Rule 139 for the grounds, as prescribed under the rule. If a departmental proceeding is not initiated by the competent authority while the Government employee was in service, after retirement it is only the State Government, which is empowered to initiated such proceeding under Rule 43 (b) of the Bihar Pension rules, 1950, subject to limitation of four years from the date of occurrence/first cause of action. If the power is vested with the Stage Government to make recovery under Rule 43 (b) and such proceeding is subject to prescribed period of limitation, then how such recovery or adjustment can be made by any other authority, if not authorized by the State.
9. Further, the Hon'ble Full Bench of this Court in case of Smt. Normi Topno Vs. The State of Jharkhand & Ors, reported in 2007 (4) JLJR 466 at para 47 has held as under:
47. In view of the above discussion, we arrive at the following 6 conclusion. To sum up:- "After retirement, there is no relationship of employer and employee and as such no recovery can be made from the retiral 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 cancelling the order of promotion after enquiry by the competent authority, pension and other retiral 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."
10. Further, the Hon'ble Apex Court in case of Syed Abdul Qadir v. State of Bihar, reported in (2009) 3 SCC 475 at para 59 has held as under:
59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned 7 of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of 6 the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made.
11. Further, the Hon'ble Apex Court in case of State of Punjab v. Rafiq Masih, reported in (2015) 4 SCC 334 at para 18 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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the 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. As a sequel to the aforesaid rules, guidelines and judicial pronouncement and considering the fact that the impugned order dated 05.04.2018 has been passed without giving notice and without giving any opportunity of being heard and that too after 5 years of sanction of pension, is not tenable in the eyes of law and as such the impugned order dated 05.04.2018 is liable to be quashed and set aside and same is hereby quashed and set aside. The respondents are directed to refund the amount, if already recovered, immediately forthwith, within a period of two months from the date of receipt of a copy of this order and if not recovered, same shall not be recovered. The petitioners are entitled for all the consequential benefits and fixation of their pension as per their last pay drawn.
13. Accordingly, instant writ petition stands allowed (Dr. S. N. Pathak, J.) RC/P/-