D.G.R.PATNAIK, J. - (1.) PETITIONER in this writ application has prayed for a direction upon the respondents to pay him his retrial benefits and also for an order quashing the office order No. 2446 dated 26.07.2005 whereby the pay scale which was earlier granted to the petitioner, has been reduced and recovery of certain amount, on the plea of excess payments, is sought to be made.
(2.) THE petitioner was inducted in the service under the respondent on 18.05.1964 initially as an unskilled Khalasi. Later, in June 1973, he was promoted to the rank of Skilled Khalasi. The post which the petitioner had ultimately attained prior to the date of his retirement on 31.01.2004 was that of Technical Grade -II S.G. on which post he was appointed on 14.03.1996. The pay of the employees of the Board was lastly revised with effect from 01.01.1996. The contention of the petitioner is that on being qualified in the Trade Test/Interview held on 28.11.1985, the petitioner, vide office order No. 917 dated 14.03.1986 was appointed to the post of Technician Grade -II (Electrical) in the pay scale of Rs. 725 -18 -905 -20 -1005 -22 -1115/ - which was the same scale which the petitioner was already receiving on his earlier post namely the post of Switch Board Operator Grade -I. The petitioner accordingly earned the annual increments of his salary thereafter. Prior to his retirement on 31.01.2004, the respondents never raised any dispute regarding the fixation of his pay scale. Furthermore, even though by letter dated 05.11.2003 the Deputy Director of Personnel, P.T.P.S. intimated the petitioner that he would be completing 60 years of age and would retire in the afternoon of 31.01.2004 and had directed the petitioner to submit his pension form, G.P.F. form etc. together with last pay certificate. Yet no suggestion, even remotely, was given to the petitioner that there was any error in the fixation of his pay scale at any point of time. In response to the aforesaid letter, the petitioner had submitted the pension form and all other relevant documents for fixation and payment of his retrial dues and 90% of the provisional pension was also fixed and ordered to be paid to the petitioner. The sanction order for payment of the 90% pension was passed on 24.11.2004 on the basis of the last pay drawn by the petitioner. To the disappointment of the petitioner, the respondents did not release the other retrial dues and he was informed after lapse of more than two years of the date of his retirement, that his pay scale has been reduced and the pension has been fixed at the reduced scale and furthermore, that the respondents have decided to recover a substantial amount from the retrial dues of the petitioner to the extent of Rs. 75,982/ - claiming that the same was drawn by him by way of excess payment. Learned Counsel for the petitioner would argue that such reduction in the pay scale and recovery of the alleged enhanced excess amount from the retrial benefits of the petitioner is totally illegal, arbitrary and not sustainable. Learned Counsel argues that prior to the decision taken by the respondents for reduction of the pay scale and for recovery of the alleged excess amount, no notice was served at all upon the petitioner nor was any opportunity given to him to explain as to why the reduction should not be made and why the purported excess amount should not be recovered. Furthermore, there is no allegation against the petitioner that for drawing the alleged excess salary, the petitioner had practiced any manner of fraud or misrepresentation. Learned Counsel argues that as a matter of fact, the pay fixation of the petitioner was correct and in accordance with the Rules. Had the petitioner been given opportunity of explaining, he would have demonstrated that there was no anomaly in fixation of his pay scale. It is further argued that the respondents would perhaps be entitled to recover any excess payment only if they can establish that any excess payment was drawn and thereafter, could recover only by resorting to the procedure laid down under Rule 43(b) of the Government Pension Rules. It is further pleaded that three other employees who had joined simultaneously with the petitioner under the employment of the respondents and to whom the same scale of pay, as paid to the petitioner, was made, have been allowed the benefit of such payment whereas the petitioner has been arbitrarily picked for thrusting upon him a liability which he did not incur at all. In support of his argument, learned Counsel for the petitioner would place reliance upon the Full Bench Judgement of this Court in the case of State of Jharkhand and Ors. v. Padmalochan Kalindi, .
(3.) PER contra, learned Counsel for the respondent, by referring to the stand taken by the respondent in their counter affidavit, would argue that the grounds advanced by the petitioner are totally misconceived and this writ application is not maintainable. Learned Counsel would explain that though the petitioner by the appointment order dated 14.03.1986, was appointed to the post of Technical Grade -II but it was certainly not by way of any promotion to the post of Technical Grade -II. As such, on the aforesaid date of appointment i.e. on 14.03.1986, the petitioner was not entitled to get any promotional benefit as because the post of Technical Grade -II does not come within the line of promotion of the S.B.O. Grade -II. Yet by mistake, he was given the promotional benefit with effect from 14.03.1986. This error was detected in course of verification when the pay scales as allowed to him in the revised scale from 01.01.1986 up to 14.03.2003 was verified and it was detected that his pay was wrongly fixed at Rs. 1805/ - on 14.03.1986 and such error continued to exist with the addition of the annual increments and the revision in the pay scales. Learned Counsel submits that after correction of the error, it was assessed that the petitioner had drawn an excess amount of Rs. 75,982/ - and the aforesaid amount has therefore been deducted from the payable amount of his gratuity. Learned Counsel adds further that after deducting the aforesaid excess payment, the remaining payable amount of gratuity together with 100% pension fixed on the basis of the revised pay scale, assessed at Rs. 7106/ - per month and the payable amount in the Group Saving Scheme, Leave Encashment, GPF and arrears of pension have been paid to him. As regards the claim for commutation of pension, it is stated that since the Board has taken a decision not to commute the pension on account of paucity of funds, the petitioner is not entitled for commutation of his pension.;