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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A.No. 497 of 2009
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Mahendra Singh Appellant
Versus
State of Jharkhand & Others Respondents
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE P. P. BHATT
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For the Appellants : Mr. Baleshwar Yadav.
For the Respondents : M/s T.N.Mishra,A.Allam S.Srivastava
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Order No. 05 Dated 19th September, 2011
By Court Heard learned counsel for the parties.
2. According to the writ petitioner, originally his
grievance was that he was not given first time bound
promotion with effect from 23.11.1977 and Second time
bound promotion with effect from from 23.11.1989 and
consequential monetary benefits due to such promotion.
Petitioner/appellant has also prayed that Rs. 8825/- has
been wrongly recovered from him and, therefore,
respondents may be directed to refund the said amount.
3. It appears from the impugned order dated 07.05.2009
passed in W.P.(S) No. 3224/08 that so far as first time
bound promotion with effect from 23.11.1977 and Second
time bound promotion with effect from 23.11.1989 are
concerned, they were redressed. So far as petitioner's
claim for refund of Rs. 8925/- and consequential
pensionary benefits are concerned, the same have been
rejected by the impugned order dated 07.05.2009 on the
ground that a mistake was detected by the Office of the
Accountant General and it was found that mistake was
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committed in fixation of salary of the writ
petitioner/appellant and, therefore, he was called upon to
refund the amount of Rs. 8925/-.
4. According to the respondents, petitioner voluntarily
refunded that excess amount and therefore, the writ
petitioner /appellant could not have raised any grievance
on this count. Argument of the respondent prevailed and
the writ petition of the petitioner was dismissed. Hence,
this L.P.A. has been preferred.
5. Learned counsel for the writ petitioner submitted
that respondents themselves have passed appropriated
order of fixation of salary of the writ petitioner and
thereafter, petitioner retired in the month of January, 2002.
Petitioner's pension was due and therefore, he was under
compulsion to refund the amount of Rs. 8925/- and he paid
the said amount so as to get the renaming amount of his
other benefits running in lacs of rupees.
6. Learned counsel for the petitioner submitted that
neither petitioner committed any wrong or fraud upon the
respondents to get the fixation of his salary nor petitioner
was ever given any show cause notice and opportunity of
hearing before alleging that the petitioner's salary was
wrongly fixed and no order to withdraw the fixation of
salary of the petitioner was ever passed by the respondents
and straightway, on the basis of the objection raised by the
office of the Accountant General, not only that amount of
Rs. 8,925/- has been recovered, but consequently his
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pension has also been reduced.
7. Learned counsel for the State submitted that the
petitioner was given wrong pay fixation and this fact was
detected by the office of the Accountant General and this
mistake cannot be disputed by the writ petitioner-
appellant.
8. Learned counsel for the Accountant General
submitted that it is the obligation of the State to give the
complete Service Book of the employee to the office of the
Accountant General 18 months prior to retirement of the
employee. However, the Accountant General's office
received the Service Book of the petitioner after his
retirement. Therefore, before the retirement of the writ
petitioner-appellant, the Accountant General's office could
not examine the case of the writ petitioner for grant of
retiral benefits. Immediately, when mistake was detected
by the office of the Accountant General, it was
communicated to the State and the employer consequently
raised the demand of above said amount and in
consequence thereof, the pension amount has been
reduced that was a natural consequence.
9. Learned counsel for the Accountant General
submitted that Hon'ble Supreme Court, in the case of
Union of India Vs. S.R.Dhingra and Others, reported in
(2008) 2 SCC 229 clearly held that correction of clerical
mistake can be made and pension initially calculated by
calculating average emoluments which included running
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allowances but subsequently a clarification dated
29.12.1999
was issued by the Railway Board stating that
running allowances was not to be taken into consideration,
then in that situation, revision of pension on account of
mistaken calculation of pension is permissible.
10. Learned counsel for the Accountant General also
relied upon another Division Bench judgement of this Court
delivered in the case of Ram Chandra Singh Vs. State of
Jharkhand & Others reported in 2005(2) JLJR 705
wherein also Hon’ble Supreme Court judgement delivered
in the case of Sahib Ram Vs. State of Haryana and
others reported in 1995 Suppl (1) SCC 18 was
distinguished and it was held that the mistakes in such
matter can be corrected.
11. Learned counsel for the Accountant General further
relied upon Division Bench judgement of this Court
delivered in the case of Rameshwar Prasad Vs.
Jharkhand State Electricity Board & others reported in
2009(3) JCR 207 wherein, taking the same view, revision
of pension was upheld.
12. Learned counsel for the Accountant General then
further relied upon yet another judgement of the Supreme
Court delivered in the case of I.C.A.R. & another Vs.
T.K.Suryanarayan & Ors. reported in 1997 (7)
Supreme 635.
13. We have considered the submissions of the learned
counsel for the parties and also perused the judgements
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cited by learned counsel referred above.
14. A bare perusal of all the judgements reveals that in
none of the cases the issue was there that an order was
passed for pay fixation by the employer during the service
tenure of the employee and thereafter the employee was
made to retire on the basis of the pay which he was getting
when he was in service. In none of the cases issue was
available that any order to rectify the mistake was not
passed by any competent authority i.e., the employer and
yet the revision in pay after retirement of employee is
sought and pension has been effected. Here in this case,
admittedly the petitioner retired on 31.01.2002 and got the
last pay according to a particular amount. The petitioner,
therefore, was entitled to pension to be calculated
according to his last paid salary. If the petitioner’s pay was
wrongly fixed, then that could have been corrected by
passing appropriate order after giving opportunity of
hearing to the writ petitioner and that also could have been
done during the service period. The petitioner’s pay, fixed
long back when he was in service, could not have been
altered after his retirement merely on account of the
objection raised by the office of the Accountant General
and that too, without giving any show cause notice and
opportunity of hearing to the petitioner and in this case it
is admitted case that even after communication from the
office of the Accountant General, no order has been passed
to withdraw the revision of pay or pay fixation of the writ
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petitioner and, therefore, in view of the objection of the
office of the Accountant General only, the order of pay
fixation/salary fixation of the writ petitioner cannot be
nullified.
15. In view of the above, the respondents could not have
ordered for recovery of the amount of Rs. 8,925/- which has
been recovered from the petitioner after his retirement and
that too without passing any order of withdrawal, the order
of salary fixation/pay fixation.
16. Therefore, the L.P.A. is allowed. The order of recovery
of Rs. 8,925/- from the petitioner is quashed and set aside.
The respondents are directed to refund the said amount to
the writ petitioner-appellant with interest @ 9% per annum
from the date when it was deposited with the respondents.
The respondents are further directed to make appropriate
re-calculation of pension of the writ petitioner-appellant
and pay the arrears to the writ petitioner in accordance
with Rules as well as shall pay the pension according to
such calculation for future. All actions required to be taken
by the respondents, be completed within a period of two
months from today.
(Prakash Tatia, C.J.)
(P. P. Bhatt, J)
Raman/Birendra