- (1.) THE present writ petition has been filed for quashing the order dated 31-3-2005 (Annexure 7 to the writ petition) and order dated 31-1-2005 (Annexure 5 to the writ petition) passed by respondent No. 2. Further issuing a writ in the nature of mandamus directing the respondent No. 2 not to deduct the amount of Rs. 82,147 from the retiral benefits of the petitioner.
(2.) THE question involved in the present writ petition for consideration by this Court is whether certain benefits like pay- scale and grade given by the respondent to the petitioner during service and amount received in lieu thereof can be recovered after the retirement or not. The petitioner who was given appointment as Assistant Teacher in Government Inter College, Anjani Sen Tehari Garhwal on 24-3- 1979. Subsequently, the petitioner was promoted and transferred to Government Inter College, Anpara, Mirzapur as Hindi Lecturer. In 1997, the petitioner was promoted to the post of Research Professor in the State Institute of Education and on 16-9-1997, the salary of the petitioner was fixed in scale of Rs. 2,900 in view of Government Order dated 17-9-1988. In 2001, petitioner being senior most was promoted in the higher scale and was posted as Deputy Secretary, Madhyamik Shiksha Parishad in pay scale of Rs. 8,000-13,500 by respondent No. 1. The petitioner retired from service on 30-11-2004. After retirement from service, petitioner received a letter dated 31-1-2005 issued by the respondent No. 2 which was addressed to the respondent No. 3 by which the respondent No. 2 sought some clarification by the respondent No. 3 and has also directed to recover amount from salary of the petitioner after revising the salary. It is noteworthy to mention here that before passing the order dated 31-1-2005, no notice and opportunity or show-cause was given to the petitioner. The respondent No. 3 by letter dated 7-3-2005 sent a clarification to the respondent No. 2 that objections raised are incorrect and the pay-scale given to petitioner from time to time was in accordance with law. The respondent No. 2 without considering the clarification and documents submitted by the respondent No. 3 passed an order on 31-3-2005, by which the respondent No. 2 has withhold an amount of Rs. 82,147 from the retiral benefits of the petitioner. A copy of the same has been filed as Annexure 7 to the writ petition. After receiving the aforesaid order, petitioner submitted a representation to the respondent No. 2 with a request not to deduct the amount from the gratuity of the petitioner. The respondent No. 3 immediately after receiving the representation filed by the petitioner sent a letter to the respondent No. 2 on 4-7-2005 stating therein that the entire clarification sought through letter dated 31-1-2005 has already been sent and deduction from the gratuity of the petitioner is illegal and requested to release the amount. The respondent No. 2 acting in an illegal manner has withhold an amount of Rs. 82,147.
(3.) IT has been submitted on behalf of the petitioner that the respondent No. 2 has got no authority to recover the amount already received by the petitioner. If the amount has been paid to the petitioner by the respondent without any misrepresentation or fraud played by the petitioner. Before passing the order of deduction no notice and opportunity was given to the petitioner, as such, order passed by the respondent No. 2 is wholly illegal, arbitrary and against the principle of natural justice. The respondent No. 2 is bound by principle of promissory estoppel and cannot passed an order of recovery of amount which has already been paid to the petitioner for no fault. Aggrieved by the aforesaid order, the petitioner has filed the present writ petition.;