S.N.PATHAK,J. - (1.) Petitioner has approached this court with a prayer for quashing the order contained in memo no. 1462 dated 12/06/2010 issued by respondent no. 2 whereby and where-under the pay scale of Rs. 10,000-15,200, which was granted to the petitioner by way of 2nd A.C.P. has been cancelled and in lieu thereof the pay scale of Rs. 7,500-10,000 has been fixed in respect of the petitioner and a direction for recovery in one lump sum has also been made after retirement of the petitioner on 31/10/2006. Further prayer has been made to declare that the petitioner is entitled for the pay scale of Rs. 10,000-15,200 by way of 2nd A.C.P. and the same was rightly granted to the petitioner by order contained in memo no. 584 dated 01/03/2007 issued from the office of respondent no. 2. Factual Matrix:
(2.) The petitioner was appointed on 19.4.1973 in the cadre of Subordinate Education Service (Primary Branch). The petitioner was entitled for grant of 1st A.C.P. and 2nd A.C.P. on completion of 12 years and 24 years which was granted to him vide Annexure 2. The first A.C.P. was granted in scale of Rs. 6,500-10,500 and the 2nd A.C.P. was in the scale of Rs. 10,000-15,200 vide memo no. 2341 dated 07/07/2005 issued by the Director of Primary Education, Jharkhand, Ranchi. The petitioner retired on 31.10.2006. After retirement the petitioner received retiral benefits and the pension was fixed as per the last pay scale. All of a sudden in the year 2010 vide order dated 12.06.2010, the Director, Primary Education passed an order of recovery from the pension and gratuity of the petitioner without following the procedures of law. Aggrieved by the same order, this writ petition has been preferred.
(3.) Mr. Manoj Tandon, learned counsel for the petitioner strenuously urges that the order dated 12.06.2010 passed by respondent no. 2 is illegal, arbitrary and sustainable in the eyes of law. Mr. Tandon further argues that no order of recovery can be passed after retirement without following the procedures of law. In the instant case even without issuance of a show cause notice and without following the procedures of Rule 43 (b) the recovery has been ordered from the pension and gratuity which is tenable in the eyes of law. Mr. Tandon further argued that issue is now no more res integra. This Hon'ble court and the Hon'ble Apex Court in catena of decisions have decided that no order of recovery can be passed rather the amount from pension and gratuity cannot be recovered without following the procedures of law. In the instant case the procedures of law has been followed and as such the order dated 12.6.2010 is tenable in the eyes of law and is fit to be quashed and set aside. The A.C.P. which was granted to the petitioner continued for four long years and was never challenged. The petitioner was entitled for the pay scale which was granted to him and as such it cannot be said after retirement that petitioner was entitled for the pay scale and the Finance Department was empowered for rectification. In the instant case, it has been further argued by the learned counsel for the petitioner that the order dated 12/06/2010 amounts to review of the order dated 07/07/2005 which has been done by the same authority. Director, Primary Education has passed the earlier order and the same was reviewed by Director, Primary Education, himself, which is also tenable in the eyes of law. Mr. Tandon, further argues that petitioner is entitled for the pay scale which was given to him and as such there is no illegality in the order dated 07/07/2005 and in view of that, the order dated 12/06/2010 is fit to be quashed and set aside.;