SURESH CHOUDHARY Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) In the accompanied writ application, the petitioner has inter alia prayed for quashing office order dated 04.06.2016 whereby the representation of the petitioner in pursuance to order dated 29.02.2016 passed in W.P. (S) No. 1024 of 2016 as against recovery from the retiral dues of the petitioner on account of wrong fixation of the pay-scale and grant of A.C.P benefit of the petitioner has been rejected and the order of recovery has been upheld and prayer has been made for quashing letter dated 20.11.2015 whereby an amount of Rs. 7,52,170/- has been directed to be recovered from retiral benefit of the petitioner and petitioner has further prayed for direction upon respondents to pay the leave encashment, which has been held up for adjustment of recovery amount on account of so-called wrong fixation and further prayer has been made for direction upon the respondent to grant 3rd MACP with effect from due date.

(2.) The facts, in brief, is that initially the petitioner was appointed as Forest Guard on 07.10.1974 and retired from the post of Forester on 31.01.2014. It has been averred that though the petitioner completed more than 30 years of service but he has not been paid 3rd MACP, as applicable and enforced in the State of Jharkhand. It has been averred that treating the petitioner to be a non-matriculate, vide letter dated 20.11.2015, his pay-scale was revised and direction was issued for recovery of Rs. 7,52,170/- from the leave encashment, gratuity and pension of the petitioner. Being aggrieved, the petitioner knocked the door of this Court by filing W.P. (S) No. 1024 of 2016, which was disposed of vide order dated 29.02.2016 with a direction to respondent no. 2 to consider the matter and pass a reasoned order. Pursuant thereto, the petitioner filed a representation before respondent-authority, which was rejected vide order dated 04.06.2016 and the order of recovery was upheld.

(3.) Learned counsel for the petitioner submitted with vehemence that petitioner being fully eligible in terms of the existing rules as on date was promoted to the higher post and had been granted A.C.P, hence, the action of the respondents in withdrawing the same and directing for recovery of excess paid amount is arbitrary and unjustified. It has further been submitted that Fitment Appellate Committee has only recommended for enhancing the educational qualification for the purposes of recruitment and accordingly rules have been framed, but, the same cannot be retrospectively applied. It has further been submitted that the impugned order of recovery from the retiral dues is not legally sustainable particularly when there had been no fraud or misrepresentation on the part of the petitioner. Furthermore, after retirement, recovery without resorting to Rule 43 (b) cannot be made and in the case at hand the impugned order has been issued without issuance of notice, which is violative of principles of natural justice. In support of his submission, learned counsel for the petitioner referred to the decision rendered in the case of State of Punjab and Ors v. Rafiq Masih (White washer) and Ors as reported in (2015) 4 SCC 334.