R.R.PRASAD, J. - (1.) THIS writ application has been filed praying therein to direct the respondents to pay back a sum of Rs. 41,309/ - to the petitioner which has illegally been deducted from the amount of pension of the petitioner.
(2.) THE case of the petitioner is that the petitioner was appointed on the post of Peon on 11.12.1964 in Government Teacher's Training College, Ranchi. In course of time, he was promoted to the Junior Selection Grade with effect from 1.4.1981 and also to the Senior Selection Grade with effect from 11.12.1989 under order as contained in letter No. 573 -76 dated 7.2.1991. Thereafter the petitioner drew the salary in the promoted scale. In course of time, the petitioner retired on 31.12.2001. Much after retirement, the respondents without assigning any reason deducted a sum of Rs. 41,309/ - from the retiral dues, though the respondent was not entitled to recover the amount even on the plea that it has been drawn in excess as the petitioner was promoted to the Junior Selection Grade and Senior Selection Grade without their being any misrepresentation on his part and that apart, the respondent was not entitled to recover the same without taking recourse of the provision as stipulated under Rule 43(b) of the Bihar Pension Rules. Counter affidavit has been filed on behalf of the respondents where it has never been stated that the petitioner had wrongly been given promotion to the Junior Selection Grade as well as Senior Selection Grade, rather stand has been taken that the petitioner was given benefit of 2nd ACP with effect from 9.8.1999 under order as contained in letter No. 994 dated 18.7.2006 by the Regional Deputy Director of Education, South Chotanagpur Division, Ranchi in the scale of Rs. 2750 -70 -3800 -75 -4450/ - whereas he had drawn salary in higher scale and therefore excess amount drawn by virtue of the order granting selection grade was recovered and as such, action of the respondents under which amount which had been drawn in excess was deducted from the retiral dues cannot be said to be illegal.
(3.) HAVING heard learned Counsel appearing for the parties and on perusal of the record, it does appear that the petitioner was given Junior Selection Grade as also Senior Selection Grade with effect from 1.4.1981 and 11.12.1989 respectively under order as contained in letter No. 573 -76 dated 7.2.1991 which order has never been said to be illegal or has been passed by the authority without having power to do so, rather respondent in his counter affidavit is quite silent on this point. Moreover it is also not the case of the respondents that the promotion was given to the petitioner on account of misrepresentation on his part. That apart, the respondents had no authority in view of the provision as contained in Rule 43(b) of the Bihar Pension Rules to recover the amount said to have taken in excess by the petitioner without resorting to the provision of Rule 43(b) of the Bihar Pension Rules. This proposition of law has already been laid down by the Full Bench of this Court in a case of Laxman Prasad Gupta v. State of Jharkhand and Anr. where question fell for consideration as to whether the amount, if any, paid in excess to the employees while in service due to mistake, fault or any misrepresentation can be recovered from the employee after retirement from the pension or gratuity of the Government employee?;