H.N.Seth, J. - (1.) By this petition under Article 226 of the Constitution, Petitioner Suraj Bahadur Saxena challenged the order dated 11th January,1971 reverting him to the post of Sub Inspector in the Central Excise Department. He has also questioned the validity of an order passed by the Assistant Collector Central Excise directing the recovery of Rs. 4,828.16 in sixty instalments from his pay as communicated to him by the Assistant Collector (Hd.Qrs.), Allahabad on 21st March,1972.
(2.) The petitioner was initially appointed a Sub Inspector in the Central Excise Department on 1st of June,1949. He passed the necessary departmental examination in the year 1953 and in due course was confirmed as a Sub Inspector with effect from 20th of October,1953. On 7th of March,1956 he was promoted as an officiating Inspector. According to the rules as they stood at that time he had to pass the departmental examination within two years of his appointment or within the first two chances occurring after his appointment whichever was later. The petitioner appeared in the departmental examination held in the year 1967. He was declared successful in all papers excepting paper No.1. He was not able to pass in all the papers of the departmental examination within two years of his appointment as also within first two chances occurring after his appointment. In the year 1958, he was placed under suspension and remained so till the year 1962, when the departmental enquiry conducted against him was finalised and he was given a censure entry. After being reinstated, the petitioner, again took the departmental examination held in December,1963 but due to certain reason he was excluded from the examination. His exclusion from the examination was followed by a notice dated 16th December,1963 asking him to show cause why disciplinary proceedings for disobedience of certain orders be not taken against him. According to the petitioner, he submitted an explanation and thereafter nothing further was done in the matter. He continued to officiate as an Inspector and earned regular increments up to the year 1967. As he did not clear all the papers of the departmental examination he was served with a notice dated 11th of January,1968 requiring him to show cause why he should not be reverted to his substantive post. he submitted an explanation and further prayed that as he had become over 45 years of age it was difficult for him to clear the departmental examination. He requested that he may be exempted from appearing in the first paper as had been done in the case of one Shri R.K. Saran who had similarly failed to clear the aforesaid examination. However, the petitioner was not granted an exemption as prayed for by him and he was requested to take his examination which was to be held in June,1969. He took that examination but could not succeed. The petitioner made yet another representation to the Central Board of Excise in Customs (Annexure 'F' to the petition) requesting that he be exempted from appearing in the Ist paper. The representation made by the petitioner was not accepted and by means of an order dated 11th January,1971, he was directed to be reverted to his substantive post of Sub Inspector as he had failed to pass the departmental examination for Inspectors in full within two years of his promotion as Inspector as also in the extended chances, as required under Rule 5 (iii) of Departmental Examination Rule,1949.
(3.) The petitioner questioned this validity of the reversion order by filing the present writ petition which was admitted on 4th of February,1971. During the pendency of this petition, the Assistant Collector by letter dated 21st of Marcy,1972 informed him that the Collector has been pleased to order that an amount of Rs. 4,829.16P. may be recovered from him in sixty instalments at the rate of Rs. 81/- per month for 59 months and the remaining Rs. 50.16P in 10th instalments as the same had been over paid to him. According to the respondents the Collector has directed the recovery of this amount as the petitioner having failed to pass the examination with in the prescribed period, under Rule 6(2) (ii) of the Departmental Examination Rules, 1949, he was not entitled to any increment in his pay. The petitioner was wrongly given the increments and had been over paid. This amount, therefore, could be recovered from him under Article 48 of the Accounts Code (Volume 1) read with Article 22 of the Accounts Code (Volume IV), which provides the manner in which over payments made to a Government servant are required to be adjusted. The petitioner claims that the respondents have no jurisdiction to recover the amount from his pay specially when there was in fact no over payment made to him. Accordingly, he got the petition amended by adding grounds for challenging the order for the recovery of Rs. 4829.16P from his pay and claiming a relief for quashing the same.;