Jharkhand High Court
Ram Lagan Ram vs The State Of Jharkhand Through The ... on 14 May, 2020
Author: S.N. Pathak
Bench: S.N.Pathak
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.505 of 2018
1. Ram Lagan Ram
2. Surya Nandan Sahay
3. Narendra Kumar Gour
4. Mahabir Bhagat
5. Jadu Nayak ... ... Petitioners
-V e r s u s -
1. The State of Jharkhand through the Secretary/Principal Secretary, School
Education and Literacy Department, MDI Building, Dhurwa, Ranchi
2. The Director, Secondary Education, School Education and Literacy
Department, office at Secondary Education Directorate, MDI Building, Dhurwa,
Ranchi
3. The Regional Deputy Director of Education, South Chotanagpur Division,
Kali Babu Street near Court compound, Kotwali, Ranchi
... RESPONDENTS
.......
CORAM: - THE HON'BLE MR. JUSTICE DR. S.N.PATHAK For the Petitioner : Mrs. Neha Bhardwaj, Advocate For the Respondents : Mr. D.C. Mishra, AC to Sr. SC-III .......
12/ 14 .05.2020 The petitioners have approached this Court with a prayer for quashing and setting aside Memo No. 05 dated 01.01.2018 (Annexure-8), whereby and where under, the pay scale of the petitioners has been revised dehors the Rule.
2. The case of the petitioners lies in a narrow compass. The petitioners were working to Class-III post in the office of Regional Deputy Director of Education, South Chotanagpur Division, Ranchi and petitioner Nos.1, 2, 3, 4 and 5 retired from services on 31..03.2013, 31.07.2011, 31.12.2012, 31.07.2004 and 31.03.2010 respectively from the office of the respondents. During the service period, the petitioner No.1 was granted Senior Selection Grade in the pay scale of Rs.5000-8000 vide Memo No. 1109 dated 14.06.2003 which was later on upgraded to the pay scale of 5500-9000 vide Memo dated 09.01.2010 in light of the recommendation of the Fitment Appellate Committee and acceptance thereof by the Department of Finance. Similarly, petitioner Nos. 2 to 5 were granted Junior Selection Grade in the pay scale of Rs. 4500-7000/- vide office order contained in Memo No. 1110 dated 14.06.2003. It is further the case of the petitioners that on completion of requisite service tenure, the petitioner Nos. 1 to 3 were granted benefits of 1st, 2nd ACP and 3rd MACP, whereas petitioner No.5 was granted the benefits of 1st and 2nd ACP and same was confirmed by the respondents vide different office orders. Further, the pay scales of 4500-7000 were replaced to 5000-8000. Similarly the pay scales of 5000-8000 was replaced to 5500-9000 and the order to this effect was issued by respondent No. 3 vide Memo No.661 dated 18.05.2011. The 2 respondent No.3 had taken aforesaid decision in light of the fact that there were 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, 4 and 5 retired from services on 31..03.2013, 31.07.2011, 31.12.2012, 31.07.2004 and 31.03.2010 respectively and thereafter, pension was sanctioned on 09.07.2013, 10.02.2012, 11.01.2013, 23.02.2006 and 22.02.2012 respectively. However, almost after 5 year of fixation of pension, the petitioner No.1 received show-cause dated 06.10.2017 as to why the ACP/MACP granted to him be not revised. Pursuant thereto, the petitioner No.1 submitted his reply on 28.11.2017 but, the respondent No.3, without considering the reply of the petitioner No.1 and without even issuing any show-cause to petitioner Nos. 2 to 5, passed impugned order contained in Memo No. 05 dated 01.01.2018, whereby and where under, the pay scale of the petitioners has been revised, which is under challenge.
3. Mrs. Neha Bhardwaj, learned counsel for the petitioners submits that impugned order dated 01.01.2018 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. She 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, 4 and 5 were sanctioned on 09.07.2013, 10.02.2012, 11.01.2013, 23.02.2006 and 22.02.2012 respectively whereas impugned order has been passed on 01.01.2018. The petitioners are Class-III employee and 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 ACP/MACP granted to them 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. Learned counsel for the petitioners places heavy reliance on following reported Judgment of this Court:
I. State of Jharkhand & Ors. Vs. Baleshwar Singh & Another, 3 reported in 2006 SCC Online Jhar 892 II. Rameshwar Prasad Vs. The Jharkhand State Electricity Board, Ranchi & Ors., reported in 2009 SCC Online Jhar 308 III. State of Jharkhand & Ors. Vs. Padmalochan Kalindi & Anr., reported in 2007 SCC Online Jhar 313
4. Per contra, counter-affidavit has been filed.
5. Mr. D.C. Mishra, learned counsel appearing on behalf of 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. He 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.
Learned counsel for the respondents places heavy reliance on the reported judgment of Hon'ble Apex Court passed in case of Shyam Babu Verma & Ors. Vs. Union of India & Ors., reported in (1994) 2 SCC 521, in case of Union of India and other Vs. Bhanwar Lal Mundan, reported in (2013) 12 SCC 433 and in case of Syed Abdul Qadir & Ors. Vs. State of Bihar & Ors., reported in (2009) 3 SCC 475.
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 4 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 and 5 have retired from services on 31..03.2013, 31.07.2011, 31.12.2012, 31.07.2004 and 31.03.2010 respectively and thereafter, pension was sanctioned on 09.07.2013, 10.02.2012, 11.01.2013, 23.02.2006 and 22.02.2012 respectively, and almost about 8 years from the date of grant of ACP/MACP benefits, impugned order/ benefits of ACP/MACP have been sought to be revised and also sought to be recovered in view of notice dated 06.10.2017 (Annexure-6). 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 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.5
7. Same view was reiterated by this Court in 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 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 Shyam Babu Verma v. Union of India, reported in (1994) 2 SCC 521 at para 11 has held as under:-
11. Although we have held that the petitioners were entitled only to the pay scale of Rs 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs 330-560 but as they have received the scale of Rs 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same.
11. 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 the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made.
12. 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.
13. As a sequel to the aforesaid rules, guidelines and judicial pronouncement and considering the fact that the impugned order dated 01.01.2018 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 8 law and as such the impugned order at Annexure-8 dated 01.01.2018 is liable to be quashed and set aside and same is hereby quashed and set aside. The Judgments relied upon by the learned counsel for the respondents are of no help to him as the same has been considered by the Hon'ble Apex Court in case of State of Punjab Vs. Rafiq Masih (supra). 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.
14. Accordingly, instant writ petition stands allowed.
15. Pending I.A, if any, stands disposed of.
(Dr. S.N. Pathak, J. ) punit/-