SURENDRA NATH ROY SON OF LATE HARI NARAYAN ROY, RESIDENT OF HOUSE NO.D Vs. THE UNION OF INDIA THROUGH THE SECRETARY, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCE AND PENSION, LOK NAYAK BHAWAN, KHAN MARKET, NEW DELHI

JUDGEMENT

(1.) In the instant writ application, the petitioner has sought for direction commanding upon the respondents to pay the salary of the petitioner from 29.03.2005 to 25.02.2007 and has challenged the recovery of Rs.2,43,426.00 and has also prayed for direction to the respondents to pay the admissible dues to the petitioner with penal interest @ 12% per annum. The petitioner has further prayed for quashing of the office order contained in Memo no.297 dated 19.10.2010 whereby the benefits granted to the petitioner by office order dated 28.03.2009 has been withdrawn.

(2.) The facts, as emanated from the writ application, in a nutshell is that petitioner was initially appointed on 10.12.1975 on the post of Translator in the department of Rajbhasa, existing State of Bihar. In course of time, the petitioner was given due promotion and finally he was posted as Rajbhasha Officer in the existing State of Bihar. On bifurcation of the State of Bihar under the provisions of Bihar Reorganization Act, 2000, the cadre allocation of the employees between two successor States took time because of the complexity involved therein. The State of Jharkhand increased the date of retirement of its employees from 58 years to 60 years vide notification dated 26.10.2004. Similarly, the State of Bihar also raised the age of superannuation from 58 years to 60 years by notification dated 24.03.2005. The date of birth of the petitioner is 03.02.1947 and, therefore, the services of the petitioner remained undecided on the date when he completed the age of 58 years and since the petitioner at that point of time was posted in the successor State of Bihar, he stood retired on completion of 58 years of service on 28.02.2005. After retirement of the petitioner from the State of Bihar, the services of the petitioner was allocated by the State Advisory Committee to the successor State of Jharkhand in its meeting held on 17.03.3005 and due to anomalous situation of two different dates, raising the date of retirement by the State of Jharkhand and the State of Bihar, the decision was taken by the Central Government, vide letter dated 29.03.2005 as per Annexure-1 to the writ petition. Since, the final allocation of the cadre of the petitioner and other similarly situated employees was not made, the petitioner filed a writ petition being C.W.J.C. No.6239 of 2006 which was decided on 27.06.2006 on the undertaking given by the respondents that the service allocation of the petitioner will be taken by the next meeting of the State Advisory Committee and its recommendation in due course would be made by the Central Government as evident from Annexure-3 to the writ petition. Because of some typographical error in the order dated 27.06.2006 passed in C.W.J.C. No.6239 of 2006, M.J.C. No.1483 of 2006 was filed by the petitioner and the same was disposed of on 18.08.2006 as per Annexure-4 to the writ petition. In pursuance thereto, the Central Government, Ministry of Personnel, Public Grievance and Pension, Department of Personnel and Training in its decision dated 15.02.2007 allocated the services of the petitioner to the State of Jharkhand as evident from Annexure-5 to the writ petition. The petitioner submitted his joining on 26.02.2007 and after working for three days the petitioner retired on completion of 60 years of services in the State of Jharkhand on 28.02.2007. The period from 01.03.2005 to 25.02.2007 (total 727 days) has been treated as extraordinary leave under Rule 236 of the Jharkhand Service Code as per the letter dated 13.12.2007 vide Annexure-9 to the writ petition. The petitioner submitted representation dated 21.07.2008 but the said representation failed to evoke any response. The letter dated 27.01.2009 vide Annexure-11 was recorded and since the petitioner has drawn the pay and allowance during 26.02.2007 to 28.02.2007, he would not be entitled to the pension during the said period. Therefore, a request was made for adjustment of the amount already paid to the petitioner. Pursuant thereto, vide Annexure-12, pension payment order has been given to the petitioner indicating recovery and adjustment of Rs.2,43,426.00. It has been averred in the writ application that no show cause was issued to the petitioner prior to issuance of P.P.O. for recovery of the aforesaid amount. It has been submitted in the writ application that since there was no fault on the part of the petitioner, the petitioner was entitled to salary from 01.03.2005 to 25.02.2007. Thereafter, the petitioner being aggrieved by the office order as contained in memo dated 19.10.2010 whereby the benefit which was granted to the petitioner by letter contained in memo dated 28.03.2009 has been withdrawn and the pay of the petitioner was refixed with further direction that the amount withdrawn by the petitioner be recovered from the pension of the petitioner as evident from Annexure-17 and thereafter, the pension paper of the petitioner was sent to the office of the Accountant General vide letter dated 27.11.2010, Annexure-18 to the writ petition. Being aggrieved by the impugned order dated 19.10.2010, the petitioner being constrained, has approached this Court under Art. 226 of the Constitution of India, invoking extraordinary jurisdiction of this Court for redressal of his grievance.

(3.) Learned counsel for the petitioner during course of hearing has submitted that the benefit of Annexure-9 has been taken by issuance of Annexure-17 and because of inaction of the Government the petitioner should not have suffered and is entitled to the salary for the period he has not worked as no work no pay principle is not applicable in this case. In this respect, learned counsel for the petitioner has referred to the judgment reported in :