Pramath Patnaik, J. - (1.) In the accompanied writ application, the petitioner has sought for a direction to the respondents not to modify/withdraw or recover one extra increment given to the petitioner as an incentive under the Bihar Government Servant (Family Planning) Rule, 1977 and for quashing of the letter dated 12.11.2007 vide Annexure-4, passed by the respondent no. 4 pertaining to withdrawal and recovery of one increment from the salary of the petitioner.
(2.) The factual matrix, as has been delineated in the writ application, in a nutshell is that the Bihar Government Servant (Family Planning) Rule, 1977, which was under Article 309 of the Constitution of India, has been made for giving incentive to those employees under the United Bihar Government for the employees under 40 years of age those who have got two children for sterilization/'Nasbandi', himself or wife, one advance increment in a salary would be given. The petitioner while posted as Assistant at District Development Office, Dumka on 22.10.1995, has got done his sterilization/'Nasbandi'. The Deputy Commissioner, Dumka vide order dated 31.01.1996 granted the incentive as per the Rule and the salary of the petitioner was increased with special increment as incentive as per Annexure-2 to the writ petition. Subsequently, vide letter dated 03.10.2002, issued by the Finance Department of Jharkhand, envisaged for modification of the provision of Family Planning from 01.01.1996 and the State employees as per the new Scheme, will be given family planning allowance, which would be equivalent to one yearly increment and it will remain static in the entire service. In earlier provision under the Bihar Family Planning Rule, 1977, an employee under 40 years of age and having two children were given one advance increment in his salary, which has been merged in his salary and the Dearness Allowance given on the salary. The Establishment Deputy Collector issued an order dated 12.11.2007, stating therein, that due to letter of the Finance Department, dated 03.10.2002 (Annexure-3), extra increment of salary given to the petitioner is recoverable and accordingly, a direction was issued for reducing the salary vide order dated 12.11.2007 (Annexure-4 to the writ petition), which is impugned in this writ application. Being aggrieved by the aforesaid order, the petitioner submitted a detailed representation to the respondent no. 3 and subsequently, the petitioner also requested the District Account Officer, Dumka, on 24.12.2007 by submitting a letter to seek clarification from the Finance Department as to whether the letter dated 3.10.2002 of the Finance Department would be applicable to the cases of the sterilization/'Nasbandi', which was done in case of the petitioner on 22.10.1995 and the District Accounts Officer, Dumka sought for guidelines and instructions from the Special Secretary, Finance Department, Jharkhand, Ranchi vide Annexure-7, but, due to non-receipt of any clarification from the concerned authorities, the petitioner left with no alternative has been compelled to approach this Court under Article 226 of the Constitution of India seeking redressal of his grievances.
(3.) Learned counsel for the petitioner has strenuously urged that the action of the respondents in directing recovery from the salary of the petitioner, the incentive, which was given as special increment, amounts to illegal and arbitrary exercise of power. Learned counsel further submits that one extra yearly increment granted as per the Bihar Government Servant (Family Planning) Rule, 1977 vide order dated 31.01.1996 could not have been withdrawn and the order of recovery from the salary of the petitioner could not have been made, when the date of sterilization/'Nasbandi' of the petitioner is 22.10.1995. Learned counsel for the petitioner further submits that the letter of the Finance Department, dated 03.10.2002, does not envisage that the State employees, who have got done their sterilization/'Nasbandi' before 01.01.1996 and who have got one year's special increment, which has been merged in their salary under the Bihar Government Servant (Family Planning) Rule, 1977 and therefore, the same, which has been withdrawn and changed with retrospective effect by the impugned order dated 12.11.2007, issued by the respondent no. 4 in the light of Clause-10 of Annexure-3, is not legally justifiable. Learned counsel further submits that the letter of the Finance Department, dated 3.10.2002 makes it abundantly clear that the new Scheme would be applicable to only those employees, who have got 'Nasbandi'/sterilization done on or after 1.1.1996, which is the cut-off date and the letter dated 3.10.2002 of the Finance Department, nowhere contains recovery of the special annual increment to those employees, who have got sterilization/'Nasbandi' done before 1.1.1996, therefore, the action of the respondents in directing recovery from the salary of the incentive from the salary of the petitioner from 01.04.1997, cannot be legally tenable. Learned counsel further submits that in the instant case, before issuance of the impugned order, no show cause notice has been given to the petitioner and the principles of natural justice has not been followed. Learned counsel for the petitioner has further referred to Annexure-8 of the rejoinder to the counter affidavit, whereby letter No. 4388, dated 06.07.2009, issued by the Chief Secretary to all the Secretaries directing for observance of principles of natural justice before ordering of any recovery from the salary. Learned counsel for the petitioner submits that the impugned order is also in breach of principles of natural justice.;