IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 3224 of 2008
Mahendra Singh Petitioner
Versus
The State of Jharkhand and others Respondents
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CORAM: The Hon'ble Mr. Justice D.G.R. Patnaik
For the Petitioner: Mr. Vishal Kumar Tiwari, Advocate
For the Respondents: Mr. Arbind Kumar Mehta, JC to G.P.-I
For the Respondent No. 5: Mr. S. Shrivastava, Advocate
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2. 07.05.2009
Heard Shri Vishal Kumar Tiwari, learned counsel for the petitioner and
learned JC to GP-I.
2. Petitioner in this writ application, has prayed for a direction to the
respondents to give him the benefits of ACP i.e. the first time bound promotion
with effect from 23.11.1977 and the second time bound promotion with effect
from 23.11.1989 and the monetary benefits corresponding to such promotion. A
further prayer has been made for directing the respondents to refund a sum of Rs.
8,925/- which has been recovered from the petitioner on the ground of excess
payment.
3. Learned counsel for the petitioner submits that during the pendency of this
writ application, the grievance relating to the first time bound promotion and the
corresponding monetary benefits thereof, has been redressed by the respondents
and therefore, the petitioner would not pursue his prayer in this regard.
As regards the other prayer relating to the recovery of the amount from the
petitioner, learned counsel submits that the respondent could not insist upon
recovery of the amount from the petitioner even on the plea of mistake in the
fixation of his salary and excess payment made as because, such wrong fixation
or excess payment, if any, was not made on account of any act of fraud and
misrepresentation on the part of the petitioner. Referring to a judgment of this
court on this issue, learned counsel submits that in absence of any allegation of
fraud or misrepresentation on the part of the employee, excess amount cannot be
legally recovered.
4. Counsel for the respondent State, by referring to the several paragraphs in
the counter-affidavit and the stand taken by the respondents therein, would
explain on the other hand that, due to the wrong fixation of pay of the petitioner
in the scale of Rs. 4000-6000 and consequent upon his promotion to the post of
Forester, the petitioner had drawn excess amount by way of his salary. The error
was pointed out by the office of the Accountant General and on being so
informed, the petitioner was intimated about the error in the fixation of his salary
and was called upon to refund the excess amount drawn by him, by a letter dated
12.12.2003 (Annexure-2). The petitioner had voluntarily refunded the excess
amount of Rs. 8,925/- without raising any issue as to the legality of the demand
made for refund since he was very much aware of this fact and under the
aforesaid facts and circumstances, petitioner cannot now raise any issue regarding
the recovery of the excess payment.
5. From the facts stated and explained by the respondents in their counter-
affidavit, it appears that the petitioner’s salary was wrongly fixed on incorrect
scale and this mistake was subsequently detected when pointed out by the office
of the Accountant General. The petitioner had also acknowledged the error in the
fixation of his salary and by such acknowledgement, he had accepted that he had
received more amount than what was legally payable to him, by way of excess
payment and had voluntarily refunded the same.
6. In the light of the above facts and circumstances, the petitioner cannot
now be allowed to raise the dispute regarding the claim for recovery of the excess
payment which was done at the time when he was still in service. Finding no
merit in this writ application, the same is accordingly dismissed.
(D.G.R. Patnaik, J)
Ranjeet/