1. This writ petition has been preferred by the writ-petitioner for a direction on the respondents to pay him the retiral benefits, such as, regular and revised pension, leave salary, gratuity and G.P.F alongwith 18 per cent penal interest, besides statutory interest, as also cost of litigation of Rs. 10.000
2. According to the petitioner, he was appointed as Karmchari and thereafter, promoted to the post of circle inspector. Ultimately he retired from the services of the State on 30 June, 1996 as circle inspector, Khuntpani Circle, Chaibasa. He filed several representations for payment of regular pension and pension in the revised scale of pay as also the other retiral benefits but most of them were not paid. On the other hand, the Accountant-General, Bihar, Patna, vide memo No. Pen-7-190, dated 4 June, 1997, directed for recovery of certain amount from the petitioner on account of his non-passing of Hindi Noting and Drafting Examination.
3. The stand taken by the Accountant General, Bihar, is that due to some major objections, the service book and pension papers of the petitioner were returned to the Department vide letter No. Pen-7-189, dated 30 May, 1997, for rectifying the objections. Reminder was also given to the Deputy Commissioner, Chaibasa, with a copy to the Circle Officer, Khuntpani, West Singhbhum, Chaibasa, vide letter No. Pen-7-851-52, dated 15/22 March, 2000. Request was also made to send the G.P.F account number of the petitioner.
4. In the counter-affidavit, filed on behalf of the State, general plea has been taken that the retiral benefits, such as, G.P.F, gratuity, leave encashment and group insurance have already been paid to the petitioner, as shown at page 29:
Sl. No.
Item
Amount
Date
(i)
G.P.F
Rs. 59,980
7.10.1996
(ii)
Gratuity
Rs. 44.540
24.10.1996
(iii)
Group Insurance
Rs. 26.333
24.10.1996
(iv)
Leave salary
Rs. 14,836
23.7.1996
5. It is also stated that the then circle officer sanctioned 90 per cent of the provisional pension of 24 months, i.e, from 1 July, 1996 to 1 July, 1998 at the rate of Rs. 957 per month, out of which the petitioner has been paid provisional pension of 16 months, i.e, from 1 July, 1996 to 30 October, 1997, amounting to Rs. 15.312 on 5 March, 1998.
6. Further case of the respondents is that the office of the Accountant-General, Bihar, Patna, vide letter No. Pen-7-483, dated 4 November, 1996 and letter No. Pen-7-189, dated 4 June, 1997, raised four major objections and returned back the entire pension papers of the petitioner and service book to the circle officer, Khuntpani.
The first objection is that the petitioner passed the Hindi Noting and Drafting Examination on 28 August, 1983 and, therefore, he was not entitled to get the benefit of salary enhancement during the period from 15 June, 1968 to 27 August, 1983.
The second objection is that the petitioner having been given the first time bound promotion with effect from 1 April, 1991 and second time bound promotion with effect from 29 August, 1993. On second time bound promotion, he was wrongly given the benefit of 12 per cent pay fixation, which ought to have been given after three years of first time bound promotion.
The third objection is that the petitioner was promoted to the post of circle inspector on 2 February, 1993 and, as such, he should have been given the maximum benefit of 12 per cent of basic pay in the old pay-scale, i.e, Rs. 150 only but contrary to this, he was given Rs. 225 and thereby his pay was wrongly fixed.
The last and fourth objection is that there were cutting twice and re-writing of the date of birth in the service book of the petitioner.
7. Though the aforesaid objections were raised by the respondents, neither they have enclosed the copy of the service book nor have produced the original service book of the petitioner to find out the allegation of rewriting of date of birth in his service book. In any case, the respondents having accepted the petitioner's date of retirement as 30 June, 1996 and having released pension with effect from 1 July, 1996, now after more than four years of his retirement, it is not open to them to re-open the question of date of birth or date of retirement.
8. So far as wrong fixation of pay on account of non-passing of Hindi Noting and Drafting Examination by the petitioner in time is concerned, the matter now stands settled by different decisions of the High Court as well as Apex Court. In the case of Narvadeshwar Mishra v. State of Bihar [C.W.J.C No. 8910 of 1999] a Bench of Patna High Court by its judgment, dated 8 February, 2000, held that “if there is no fraud or misrepresentation on the part of the employee, under such circumstances recovery of alleged excess amount is not permissible”.
Similar was the view of Patna High Court in the case of Arjun Singh v. State of Bihar [C.W.J.C No. 6183 of 1996, disposed of on 29 April, 1997]. In the said case, the petitioner had not passed the Hindi Noting and Drafting Examination but was allowed increment. The Court taking into consideration the fact that there was ho misrepresentation on the part of the employee, held that the authority cannot compel to return the excess amount.
In the case of Sahib Ram v. State of Haryana reported in 1995 Supp (1) SCC 18, it came to the notice of the Apex Court that the appellant was wrongly granted promotion, though he was not eligible. Taking into consideration the fact that there was no misrepresentation on the part of the appellant, the Apex Court held that the recovery of excess amount was not justified.
9. In the present case there is no allegation made by the respondents that the pay of the petitioner was fixed or increment was released on his misrepresentation. In this background, it is not open to the authorities to recover any amount from the retiral benefits of the petitioner. The petitioner is entitled for retiral benefits as per the Rule, i.e, last pay drawn by him.
10. Accordingly, the respondents are directed to fix the pension, gratuity and leave encashment of the petitioner on the basis of the last pay drawn by him, taking into consideration the revised scale of pay and to pay the admitted retiral benefits, if found payable, alongwith 5 per cent interest, within a period of three months from the date of receipt/production of a copy of this order, failing which the respondents will be liable to pay a cost of Rs. 10,000 in favour of the petitioner.
11. The writ petition is, thus, allowed with the aforesaid observations and directions.