AMARESHWAR SAHAY, J. - (1.) THE issue involved in all the three writ petitions are same and similar and as such they have been taken together and are being disposed of by this common order.
(2.) THE facts in short in W.P. (S) No. 2163 of 2003 are: that the petitioner was appointed as Assistant Teacher in the District of Pakur by issue of order as contained in Annexure -1 dated 5.5.1980. She was subsequently promoted to the post of Headmistress vide order as contained in Memo No. 17362 -65 dated 23.8.1985 (Annexure -2). The petitioner has challenged the orders contained in Annexure - 4 to 6 to the writ petition, whereby on the basis of an Audit report, it has been prdered that since the pay of the petitioner was wrongly fixed on a higher scale and as such the amount paid to her in excess be recovered. The facts in short in W.P.(S) No. 2907 of 2003 are: that the petitioner No. 1 was appointed as Assistant Teacher in the Matric trained scale on 14.11.1977 and he joined the said post on 1.12.1977. Petitione, No. 2 joined as Assistant Teacher in Matric un -trained scale vide order of appointment dated 8.11.1971 and he was subsequently allowed Matric trained scale on 9.11.1974. Petitioner No. 3 joined as Assistant Teacher in Matric trained on 4.2.1975 and he was given Matric trained scale from 30.4.1976. Petitioner No. 4 joined as Assistant Teacher on 2.6.1976 in Matric trained scale w.e.f. 1.4.1977. The petitioner No. 1 was given Senior Scale by District Superintendent of Education, Sahibganj on 1.12.1989. Petitioner No. 2 was given Senior Scale w.e.f. 1.4.1986. Subsequently, all the petitioners were given I.A. trained scale. An audit was conducted by the Sr. Accounts Officer, office of the Accountant General, Ranchi, and after verifying the records regarding promotion of the petitioners, a report was submitted observing that the promotion given to the petitioners to the post of Assistant Teacher in the Intermediate trained scale V\JS not legal, and accordingly, recommendation was made for recovery of the amount paid to them in excess. The grievance of the petitioners is that on the basis of said audit report, the District Superintendent of Education, Pakur has directed all the Drawing & Disbursing Officers within the District of Pakur to comply the recommendation made in the audit report and recover the amount which has been paid in excess to different Teachers including these petitioners. 3. The facts in short in W.P. (S) No. 2399 of 2003 are: that the petitioners were initially appointed as Teachers in Primary scales in Matric trained scale in the District of Santhalpargana. It is stated that the District Education Establishment Committee, Pakur, in its meeting dated 2.3.1997 considered the case of the petitioners for promotion to the post of Headmasters and recommended their cases for promotion to the said post in various schools within the District of Pakur. On such recommendation, made by the Establishment Committee, the petitioners were promoted to the Dost of Headmasters in different Middle Schools w.e.f. 1.4.1996. According to the petitioners, their promotion are duly accorded approval by the District Education Establishment Committee. The grievance of the petitioners is that all of sudden on the basis of audit report conducted by Senior Accounts Officer, Office of the Accountant General, Ranchi, it was observed that the promotion of the petitioner to the post of Headmasters was not legal and valid, accordingly, recommendation was made for recovery of the amount paid to them in excess. Pursuant to the recommendation made by the Office of the Accountant General, the District Superintendent of Education vide letter dated 24.12.2002, directed all the Drawing and Disbursing Officers within the District of Pakur to comply the recommendation made in the audit report and recover the amount which was paid to the petitioners in excess to different teachers including these petitioners.
(3.) THE question involved in all the three writ petitions are as to whether on the recommendation made in the audit, report, can there be recovery of any amount said to have been paid in excess to the petitioners by way of salary. Similar matter came up before the Single Bench of this Court in W.P.(S) No. 2451 of 2003. In that case also, on the basis of the audit report of the Office of the Accountant General, promotion of that writ petitioner as Headmaster was held to be wrongly given and an order for recovery of the amount of salary paid in excess was made. A Single Bench of this Court by order dated 25.6.2009, held that the audit report of the office of Accountant General is a mere suggestion, and it is made for awakening the senses of the respondent -authorities so that upon holding proper enquiry, necessary action can be initiated. The learned Single Judge also held that the authority straightway implemented the report given by the office of Accountant General without giving any opportunity of being heard to the concerned persons. The order for recovery of the salary allegedly paid to the petitioner in excess was quashed in that case. Another Single Bench of this Court in W.P.(S) No. 1481 of 2003, W.P.(S) No. 3045 of 2003, W.P.(S) No. 3668 of 2003 and W.P.(S) No. 4782 of 2003, also held that since the order of recovery of the amount is punitive in nature, and therefore, the principles of natural justice need to be complied with. 5 A full Bench of this Court in the case of Smt. Normi Topno V/s. State of Jharkhand and Ors. reported in 2008 (1) 381 J.C.R. has also held that any order causing prejudice to a person cannot be passed without giving him/her an opportunity of hearing. The full Bench after considering the decision of Hon'ble Supreme Court has held in paragraph 42 of its judgment, as follows: it is no doubt true, the Supreme Court held that when the promotion is ab initio void, then on that basis, recovery can be made. It is also true that the power is vested with the State to recover the excess payment which was given wrongly or by mistake. But, where the promotion is said to be ab -initio void or the excess payment was said to be made on the basis of wrong calculation or due to the mistake committed in the department, then, it has to bu found out as to how the promotion could be held to be ab -initio void and how there was miscalculation or mistake and if it is so, by whom it was committed and ail these things have to be verified only through the inquiry by giving proper opportunity to the person concerned, who is likely to be affected by the conclusion of the inquiry. The conclusion without any inquiry or finding that there is a pecuniary loss to the Government due to the misconduct or mistake of pensioner even without giving opportunity to the person concerned, would certainly cause prejudice to the said person.;