- (1.) THE petitioner in this writ application has prayed for issuance of direction to the respondents to refund the sum of Rs. 69,335/ - deducted from the retiral benefits dues of the petitioner and for payment of his promotional pay granted in the scale of Rs. 5,500 -9,000/ - with effect from 9.8.1999 to 31.1.2002 as well as for a direction to pay to the petitioner a sum of Rs. One lakh by way of damages and a sum of Rs. 10,000/ - towards litigation cost on the delayed payment of his retirement dues alongwith interest at the rate of 18% per annum.
(2.) THE petitioner was appointed as an Assistant in the Ranchi Collectorate on 27.5.1963 and he retired from service on 31.1.2002 on the post of Head Assistant. He was granted pay scale of Rs. 5,000 -8,000/ - w.e.f. 1.1.1996 and he got salary in that scale of pay even on the date of his retirement on 31.1.2002. On his retirement he was paid admissible retiral benefits including retirement gratuity, leave encashment for 240 days, admissible group insurance amount with interest as well as provisional pension regularly per month. Accountant General, Bihar, Patmi, has already sanctioned pension @ Rs. 3,477/ - per month besides a sum of Rs. 1,68,5151 - as retirement gratuity. However, after his retirement a sum of Rs. 69,335/ - has been recovered from him by the respondents on the plea that the aforesaid sum has been paid to him in excess on account of wrong fixation of pay in the revised pay' scale with effect from 1.1.1996. . The petitioner has assailed the aforesaid recovery of the amount from his retiral benefits on the ground that such act on the part of the respondents is totally illegal in view of the fact that no departmental proceeding in terms of Section 43(b) of the Bihar/Jharkhand Pension Rules was initiated against him prior to his retirement or even post retirement by the State Government. It is further contended that no prior notice or opportunity was given to him to explain before the respondents proceeded to recover the amount. It is further contended that the fixation in the revised scale of pay was made in terms of the fifth pay revision committee recommendation with effect from 1 .1.1996 and therefore there was no error in the fixation of his pay from 1.1.1996. It is also contended that since the petitioner was considered eligible for the revised pay scale in the need based post as on 1.1.1996, his scale of pay was rightly fixed at Rs. 5,000 -150 -8,0001 - and he cannot be denied this privilege since it was at this scale that salary was paid to him at the time of his retirement and pension has been rightly fixed on the basis of salary drawn by him on the date of his retirement at the aforesaid scale of pay.
(3.) COUNTER affidavit has been filed on behalf of the respondents denying and disputing the entire claim of the petitioner, though admitting that the petitioner had retired on 31.1.2002 on the post of Head Assistant and after his retirement he was paid his admissible retiral benefits and the amount of monthly pension as approved and sanctioned by the Accountant General at the rate of 3,477/ - per month. However, controversy raised by the respondents is that the pay of the State Government employees was revised from 1.1.1996 vide Finance Department's Resolution No. 37 -02 -5 VE PV 01/99 660 dated 8.2.1999. Department -wise and post -wise pay scales are mentioned in the Schedule -III of the said resolution was fixed. As per instruction in Part -II of the resolution, the State Government had decided to abolish the facilities of the time bound promotion and selection grade and declared that they shall cease to be applicable w.e.f. 1.1.1996. While fixing pay in the revised scale such promotion given before 31.12.1995 will not be taken into consideration, 'but promotion to any vacancy or post identified as need based post, would be admissible. The revised pay scale: of clerk as mentioned in Schedule -III of the said resolution of the Finance Department, is Rs. 4,000 -100 -6,000. The post of Head Assistant and Office Superintendent of the clerical cadre of the Collectorate are sanctioned as promotional need based posts from 1.1.1996 and the scale of pay of the post is Rs. 5,000 -150 -8,000/ - and Rs. 5,500 -175 -9,000/ - respectively. The promotional identified need based posts are to be filled up by the appointing authority on seniority basis. In view of the above instruction and considering the post held by the petitioner, he was allowed the benefits of the revised scale of Rs. 5,000,150 -8,000/ - of the need based post from 1.4.1998 which was the date on which he was promoted to the post of Head Assistant. It is further contended that on 1.1.1996, the petitioner was posted only as the Circle Officer, Mandar and therefore, according to the pay scale revision, his pay scale was Rs'. 4,000 -100 -6,000 and he was not entitled to the scale of pay of Rs. 5,000 -150 -8,000 on 1.1.1996. The scale of pay of the petitioner was thus wrongly fixed at Rs. 5,000 -150 -8,000 from 1.1.1996 instead of the deserving date i.e. 1.4.1998. It is further stated that while fixing the pay scale of Rs. 5,000 -150 -8,000/ -, an undertaking was obtained from the petitioner as per the instructions contained in r0.ra 17(i) of the resolution of the Finance Department dated 8.2.1999 that any excess payment found to have been made as a result of incorrect fixation of payor any excess detected subsequently in the light of the discrepancy, will be refunded by him to the Government either from his arrear pay bill in one lump sum or by adjustment against future payments including pension and gratuity. The respondents have therefore every right to recover the excess amount of Rs. 69,335/ - paid to the petitioner due to incorrect fixation of pay and such amount has been rightly recovered from the pension of the petitioner.;