NARENDRA NATH TIWARI, J. - (1.) IN this writ application the petitioner has prayed for quashing the Office Order No. 195/2004 issued by Memo No. 669 dated 26.5.2004 (Annexure -3) whereby the respondent No. 4 has passed the order for deduction of Rs. 88,893/ -from the petitioner's amount of gratuity. The petitioner has also prayed for a direction commanding upon the respondents to pay the entire amount of gratuity, which he is legally entitled to.
(2.) THE facts leading to this writ application are as follows : The petitioner joined the service of the Police Department in the erstwhile State of Bihar as a Constable (O) Wireless on 16.8.1969. He was given promotion to the post of Assistant Sub -Inspector (ASI) in the year 1974 and subsequently to the rank of Sub -Inspector of Police w.e.f. 1.8.1992. After reorganization of the State of Jharkhand, the petitioner's service were placed in the Head Quarter of the State of Jharkhand in the year 2001. The petitioner retired on attaining the age of superannuation on 29.2.04. After his retirement, the impugned Office Order No. 195/04 has been issued by Memo No. 669 dated 26.5.04 whereby the respondent No. 4 has directed for deduction of a sum of Rs. 88,893/ - from the amount of the petitioner's gratuity, denying/disapproving the Reducible Personal Pay (RPP) which was paid to the petitioner during his service period on the basis of the fixation made by the department. According to the petitioner, the respondents have also reduced the amount of his pension on the plea of the said impugned order and fixed the monthly amount of pension at Rs. 8300/ -. It has been stated that the petitioner had no role in the fixation of pay or in getting RPP and the pay was fixed by the department and the salary was paid on the said scale from 1996 till his retirement. Two separate counter affidavits have been filed, one by the respondent No. 3 the Deputy Inspector General of Police, Wireless, Jharkhand and another by the respondent No. 5 the Under Secretary, Department of Finance, Jharkhand. The contentions made by the said respondents in both the counter affidavits are almost similar. It has been stated that the State Government employees were granted the benefit of revised central pay scale by the finance department Resolution No. 660 dated 8.2.1999 modified by the corrigendum and issued by Resolution No. 3277, dated 2.6.1999. Schedule V of the said resolution provided the procedure for drawal of pay in the revised scale of pay, according to which the service book along with the Statement -A was to be forwarded by the Drawing and disbursing Officer/Office Head to the competent authority for vetting of the fixation of pay. The concerned authority was authorized to fix the pay of the employees in the revised scale only on provisional basis. But in the petitioner's case after provisional pay fixation, the same was not sent to the competent authority for vetting and the petitioner was allowed to draw salary in the revised scale of pay w.e.f. 1.4.1997. The petitioner was promoted to the rank of Sub -Inspector (Operator) on 1.8.1992 while his juniors Suresh Pd. Singh and Ujjair Mallick were promoted to the rank of Sub -Inspector (Operator) on 15.12.1994. The Wireless Organization fixed the pay of the petitioner in the revised pay scale of Rs. 5500 -9000 on 17.5.1999 as per the recommendation of 6th pay commission w.e.f. 1.1.1996. By Office Order Nos. 660/99 and 776/99 while fixing the pay of the petitioner, he was allowed Reducible Personal Pay (RPP) of Rs. 700/ - w.e.f. 1.1.1996 to protect his pay from the Junior Sub -Inspectors namely Suresh Pd. Singh and Ujjair Mallick. The petitioner was then allotted Jharkhand State while Suresh Pd. Singh and Ujjair Mallick remained in the State of Bihar as per the division made by the State Cadre Advisory Committee. The petitioner's statement of pay fixation was sent to the Finance Department, Jharkhand Ranchi for verification as the petitioner was going to retire w.e.f. 29.2.2004. The finance department then held that the petitioner was not entitled to RPP which was granted to him by Office Order Nos. 660/99 and 776/99. The finance department then fixed the petitioner's pay at Rs. 6900/ - w.e.f. 1.1.1996 by Office Order No. 564/F, dated 9.3.2004. On the basis of the said fixation, the excess amount paid to the petitioner w.e.f. 1.1.1996 was calculated which came to the tune of Rs. 88,893/ - and the same was sought to be recovered from the amount of gratuity and the Accountant General, Jharkhand, Ranchi accordingly directed for deduction of Rs. 88,893/ - from the final gratuity of the petitioner. It has been stated that the petitioner was not entitled for the said RPP and the amount paid to the petitioner as RPP was unauthorized payment and the Government is entitled to recover the same. On the, said ground, the order of recovery of Rs. 88,893 has been sought to be justified by the respondents.
(3.) DR . S.N. Pathak, learned counsel for the petitioner, submitted that admittedly the pay fixation was made by the competent authority and the RPP was paid to the petitioner in order to protect his pay from the pay of the junior Sub -Inspectors namely Suresh Pd. Singh and Ujjair Mallick. Learned counsel submitted that the respondents even in their counter affidavits have not stated that the petitioner was in any way instrumental in getting the said fixation of pay from the authorities concerned. There is absolutely no allegation of misrepresentation or any act of the petitioner at any stage in the process of the fixation of pay and he cannot be held liable for the alleged excess payment made on the basis of the said fixation by the department and amount of salary cannot be recovered from the petitioner. In support of the said submission the learned counsel relied on a decision of the Supreme Court in Sahib Ram v. State of Harayana and Ors., reported in 1995 (Suppl.) (1) SCC 18. Learned counsel further submitted that since the earlier fixation of the petitioner's pay scale has been revised after his retirement, the same at best can be made effective by revising the pension on the basis of the said fresh fixation order, but salary of the service period paid to the petitioner cannot now be curtailed with retrospective effect and no recovery can be made from the petitioner on the basis of said post retirement fixation of pay scale. The order of recovery is wholly illegal, arbitrary and unjust.;