Aparesh Kumar Singh, J. - (1.) HEARD learned counsel for the parties.
(2.) PETITIONER , who was initially appointed in Work Charge Establishment on 8th December, 1973 on the post of Work Supervisor in the Respondent Department of Water Resources, was regularized with effect from 21st March, 1981 on the post of Accounts Clerk. His services were placed under Swarnrekha Multipurpose Project, Chandil Complex, Adityapur, Seraikella Kharsawan later on. He was granted the benefit of 1st Time Bound Promotion vide office order No. 2617 dated 17th July, 1990 with effect from 8th December, 1983 in the scale of Rs. 785 -1210/ -. Petitioner has reached the age of superannuation on 31st December, 2012. Annexure -2 is an office order dated 14th June, 2011 issued by Chief Engineer, Swarnrekha Multipurpose Project which in effect has cancelled the Time Bound Promotion granted to the petitioner with effect from 8th December, 1983 on the ground that he had passed the departmental exam finally on 8th January, 1998 only. Payments made in excess on that account is said to be recovered from his salary. No recovery admittedly were made during his service period from his salary. The recovery has been finally made from the Leave Encashment Amount totaling Rs. 4,02,480.00 out of which amount of Rs. 1,03,011.00 has been deducted and payments to the tune of Rs. 2,99,469.00 have been made. Respondents, in their counter affidavit, have justified the recovery based upon the order at Annexure -2 dated 14th June, 2011 though such recovery has been effected after his retirement.
(3.) HAVING taken note of relevant facts as aforesaid, it is trite to observe at the outset that the said recovery is in the teeth of Full Bench judgment rendered by this Court in the case of Dr. Dudh Nath Pandey -Vs. - State of Jharkhand & Ors. reported in 2007 (4) J.C.R. 1 (Jhr.) (F.B.), paragraphs 32 to 35 are being quoted hereunder for better appreciation. "32: In other words, if there is a power available under any other rule or law to withhold leave encashment, the same can be further governed by executive instructions under Rule 5. Thus, Rule 5 of the Bihar Service Code does not help the respondents nor does it empowers the State to withhold the Leave Encashment. As the circular was not issued under any powers conferred under the Rules, the Executive Instruction, which is a guidelines cannot have the force of law. 33. It is held in : (2003) 1 SCC 591 "the expression law within the meaning of Article 300 -A would mean a Parliamentary Act or an Act of the State Legislature or statutory order having the force of law. The State Government cannot while taking recourse to the executive power of the State under Article 162, deprive a person of his property. Such power can be exercised only by authority of law and not by a mere executive fiat or order. 34. In the light of the above ruling, we are to hold that the circular issued by the Finance Department has no force of law and as such would not confer any power to withhold the leave encashment, which is termed as a property. 35. To sum up the answer for the two questions are as follows: - (i) Under Rule 43(a) and 43(b) of Bihar Pension Rules, there is no power for the Government to withhold gratuity and pension during the pendency of the departmental proceeding or criminal proceeding. It does not given any power to withhold leave encashment at any stage either prior to the proceeding or after conclusion of the proceeding. (ii) The Circular, issued by the Finance Department, referring to the withholding of the leave encashment would not apply to the present facts of the case as it has not sanctity of law. Both the questions are answered accordingly.";