- (1.) PRESENT writ petition has been filed for quashing of the order dated
(2.) 01.2005 Annexure-2 to the writ petition, by means of which directives have been issued for recovery of the amount from gratuity of the petitioner. Brief background of the case as is reflected from the pleadings available on record that petitioner had been performing and discharging his duty as Assistant Registrar Kanoongo at Collectorate, Sidharthnagar and he attained the age of superannuation on 31.1.2004 from Tehsil Dumariyaganj of District Sidharthnagar. After petitioner has been superannuated, his papers for retrial benefit including pension etc. have been forwarded to the authority concerned, and then on 2.1.2005 order has been passed by the District Magistrate, Sidharthnagar mentioning therein that in pursuance to the Audit Report dated 6.2.2005 sum of Rs. 89,078/- , which had wrongly been paid, is liable to be recovered from the gratuity of petitioner. At this juncture present writ petition has been filed. 2. Counter affidavit has also been filed and therein it has been sought to be contended that matter was referred for the purpose of pension etc. and it has been remitted back with objection that wrong fixation was made in respect of selection grade as well as super selection grade in the year 1988 and 1996, as such amount in question is liable to be recovered. Rejoinder affidavit has been filed disputing the averments mentioned in the counter affidavit and reiterating that of writ petition. After pleadings mentioned above, have been exchanged, present writ petition has been taken up for final hearing/disposal with the consent of the parties. Sri Ajay Kumar Srivastava, learned counsel for the petitioner contended with vehemence that in the present case rightful fixation was made by the respondents and there was no fraud or misrepresentation on the part of the petitioner, as such no recovery can be made from the petitioner.
(3.) SRI B.A. Khan, Learned Standing Counsel on the other hand contended that once, it is found that incorrect fixation was made, then corporation in all eventuality State is entitled to recover the amount, to make the losses good, as such no interference be made. After respective arguments have been advanced, undisputed factual position, which has emerged in the presence case is that as far as fixation of salary is concerned, petitioner was accorded super selection grade on 22.8.1996 , w.e.f. 1.7.1988 in the pay scale of Rs. 1350-2000. Petitioner had received selection grade and pay scale bonafidly during his service period and petitioner had no role to play in the same and amount in question could not have been directed to have been recovered, as it has been sought to be done in the present case, moreover, in the present case the documents, which have been filed as Annexure RA-I dated 10.4.2006 clearly reflects that re-examination was done and in the same it has been found that pay scale which has been accorded to the petitioner was correct one. Once this is factual position, which has emerged that petitioner had no role to play in the fixation of salary and selection grade and there has been no fraud or misrepresentation on the part of the petitioner, then in that event impugned action cannot be sustained.;