MAHENDRA PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner, Janaki Prasad, has filed this writ petition for quashing the orders, contained in Annexures 3 and 4, and directing the respondents to refund the already recovered amount of Rs. 36,237/ -to the petitioner with interest and to fix the pension and other post retirement benefits on the basis of salary drawn on the date of retirement (i.e. at the rate of Rs. 1540/ -) and also direct the respondents to pay all the arrears with interest due to wrong fixation of pension. The case of the petitioner is that he was appointed as Tubewell Borer in the Minor Irrigation Department in 1958. During the long tenure of his service he worked to the full satisfaction of his employer and ultimately superannuated on 30.11.1992 from the District Division, Madhubani. He was given First Time Bound Promotion on 1.8.1983 with effect from 1.4.1981 after completion of ten years and his scale was enhanced from Rs. 540/ - to Rs. 645/ -. In the same year of 1983 he was granted second time bound promotion with effect from 1.4.1981 after completion of 25 years of service and the scale was enhanced to Rs. 725/ - per month. As the period of service went on increasing, the petitioner was benefited by the enhanced salary and ultimately on the date of superannuation he was actually receiving his salary at the scale of Rs. 1540/ - per month which he had been getting from April, 1990 upto the date of superannuation. After his superannuation on 30.11.1992 the provisional pension of the petitioner was fixed at Rs. 693/ -per month from 1.12.1992 which was continued upto August 1999. Meanwhile, respondent No. 3, the Executive Engineer, vide his letter No. 174 dated 20.3.1998 submitted all the necessary documents relating to pensionary benefits of the petitioner to the office of respondent No. 2, the Accountant General, Bihar. Subsequently, respondent No. 2 by his letter No. 2950 dated 8.9.1999 (Annexure 3) intimated that his pension has been reduced from 693/ -per moth to Rs. 663/ - per month and fixed his pension at Rs. 663/ - per month with effect from 1.12.1992 and pursuant to receipt of the letter of the Accountant General, the Executive Engineer vide his letter No. 18 dated 8.12.2000 (Annexure 4) requested respondent No. 4, the Treasury Officer, to recover the amount of Rs. 36,237/ - from the account of the petitioner as the excess payment of salary. He approached respondents No. 3 and 4 through several representations and also sent letters to respondent No. 2 to cancel the order of recovery as the benefit of enhanced salary was given to him not due to mistake, but under the Time Bound Promotional Scheme covered under the 5th Pay Revision Scheme and as such there was no question of excess payment and recovery thereof. But despite all these, in the month of March, 2000, the aforesaid amount of Rs. 36,237/ - was deducted from the amount of his provident fund and monthly provisional pension amounting to Rs. 693/ -per month paid from December, 1992 to August, 1999 was ordered to be adjusted and it was specifically directed to pay him only Rs. 663/ - per month and final pension with effect from 1.12.1992.

(2.) IT appears that during the pendency of this writ petition, the petitioner died and his heirs have been substituted.

(3.) ON the basis of above two time bound promotions, the provisional pay was fixed but with a condition that in course of confirmation if it is found wrong then the excess payment made would be recovered in lump sum against the further payment including the pension or gratuity. The petitioner had also given an undertaking on 30.12.1983 to that effect. In course of confirmation of time bound promotion it was detected that the fixation was wrong. Hence, the pension and gratuity has been fixed as per corrected time bound promotion and pay fixation. In course of this it was also found that Rs. 36,278/ - had been paid in excess to the petitioner and accordingly, the same has been recovered from his arrear pension/gratuity.