NARENDRA NATH TIWARI, J. - (1.) IN this writ application, the petitioner has prayed for quashing : (i) the notification No. 5265, dated 1.10.2003 (Annexure -2) issued by the Department of Forest & Environment, Government of Jharkhand, whereby the promotion given to the petitioner to the post of Forest Range Officer with effect from 9.11.1993 has been sought to be shifted and made effective from 23.10.1999 (ii) the Office Order No. 66, dated 6.11.2003 (Annexure -1) issued by the respondent No. 3 pursuant to the said order (Annexure -2) shifting the date of promotion from 9.11.1993 to 22.10.1999 and for quashing the letter No. 30, dated 21.1.2004 (Annexure -3) issued by the respondent No. 3 whereby the difference of amount given to the petitioner as promotional benefits since the date of promotion with effect from 9.11.1993 has been sought to be recovered out of the amount of the leave encashment payable to the petitioner, after his retirement. The petitioner has also prayed for a direction to the respondents to make payment of all his retiral dues including the leave encashment amount on the basis of last pay drawn by him.
(2.) THE petitioner 'scase is that he was appointed as Forest Guard on 4.4.1965. In course of his service, he was promoted to the post of Forest Range Officer by notification No. 6064, dated 9.11.1993 issued by the Department of Forest and Environment, Government of Bihar. The petitioner attained the age of superannuation and retired on 31.1.2001 from the post of Forest Range Officer. After his retirement, retiral benefits were paid to the petitioner, such as gratuity, provident fund and the pension. Long after his retirement, the petitioner received office order No. 36, dated 6.11.2003 whereby his date of promotion has been sought to be shifted and modified from 9.11.1993 to 22.10.1999. It was mentioned that by notification No. 5265, dated 1.10.2003 issued by the Department of Forest & Environment, Government of Jharkhand a decision was taken to alter the date of the petitioner 'spromotion from 9.11.1993 to 22.10.1999. The petitioner was, thereafter, served with letter No. 30, dated 21.1.2004 (Annexure -3) issued by the respondent No. Whereby the alleged excess amount paid to the petitioner on account of promotion from 9.11.1993 till 22.10.1999 was sought to be recovered. The grievance of the petitioner is that the said impugned orders have been passed arbitrarily and illegally and even without giving any notice or opportunity of hearing to the petitioner, no reason, whatsoever, has been assigned for altering/shifting the date of promotion of the petitioner from 9.11.1993 to 22.10.1999. While doing so, it has not been alleged that the petitioner obtained the said promotion order by misrepresentation or fraud. It has been claimed that once promotion was given to the petitioner by the competent authority, the same cannot be cancelled or the date cannot be altered/shifted to the disadvantage of the employee without giving him any notice and opportunity of hearing. And as such the impugned orders are wholly illegal and arbitrary and are violative of principles of natural justice. The petitioner discharged his duties as Forest Range Officer with effect from 9.11.1993 and in lieu thereof he was given the pay scale of Forest Range Officer and that the same cannot be recovered from the petitioner long after the date of his retirement. It has been claimed that the impugned orders shifting his date of promotion from 9.11.1993 to 22.10.1999 are wholly arbitrary and illegal and as there was no mis -representation or fraud on the part of the petitioner, the promotional benefits given to the petitioner cannot be recovered after his retirement and as such the impugned orders are liable to be quashed. 3 A counter -affidavit has been filed on behalf of the respondent Nos. 1, 2 and 3. The respondents tried to justify the impugned orders and contested the petitioner 'sclaim on the ground, inter alia, that the petitioner was given promotion to the rank of Forester in compliance of the Office Order No. 396, dated 1.5.1982 of the Chief Conservator of Forests, Bihar (Annexure 'A '). The petitioner was posted in State Trading Circle, Jamshedpur. The petitioner was given paper promotion to the rank of Forester since 1.8.1973, the date of his passing the Forest Guard Training Examination. The Forest and Environment Department, Government of Bihar, by its notification No. 6064, dated 9.11.1993 had given promotion to the petitioner to the rank of Range Officer of Forest on the basis of his seniority since 1.8.1973 in the rank of Forester. The Government of Jharkhand, vide its letter No. 5519, dated 29.1.2002 fixed the seniority of Forest Guards from the date of passing the Training Examination with Honours or standing first with Honours or simply standing first, Whereby the Forest Guards passing with Honours in examinations held before 17.12.1986, were held to be eligible for quick promotion. In the light of the said decision, the petitioner 'spromotion to the rank of Forester given to him with effect from 1.8.1973 was withdrawn and by letter No. 5519, dated 29.11.2002 and date of his promotion to the rank of Forester was shifted from 1.8.1973 to 25.5.1982 which was the date of his routine channel promotion. After the said alteration in the date of promotion to the rank of Forester corresponding change in the date of promotion to the rank of Range Officer of Forest was a natural consequence. The Principal Chief Conservator of Forest of Jharkhand was, thus, requested by the Regional Conservator of Forest, East Singhbhum by letter No. 761, dated 11.3.2003 to rectify the date of promotion of the petitioner accordingly. The Government of Jharkhand, notified the date of promotion of the Forest Range Officer with effect from 23.10.1999. On the basis of the said change in the date of promotion, annual pay increment of the petitioner was revised in the pay scale of Forest Guard and his pay was refixed by Officer Order No. 44, dated 19.12.2003. After the said revised pay fixation, the excess payment has been worked out to the sum of Rs. 97,324/ - which has been communicated to the petitioner by Conservator of Forest, State Trading Circle, Singhbhum by letter No. 30, dated 21.1.2004.
(3.) THE short question, which arises for consideration in this writ application is, as to whether any payment made after giving promotion to the petitioner without any mis -representation or fraud committed by him can be recovered from his retiral dues.;