IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No. 6807 of 2004 BINAY PANDEY, son of Late Satyadeo Pandey, resident of village – Arjun Sarthuwa, P.S.-Khudaganj (Islampur), District- Nalanda ………………….. Petitioner Versus 1. THE STATE OF BIHAR 2. The Director General, Home Guard, Government of Bihar, Patna 3. Divisional Commandant, Bihar Home Guards Force (Grih Raksha Vahini), Patna 4. The District Commandant, Bihar Home Guard Force (Grih Raksha Vahini), Patna 5. Accountant General, Bihar, Patna …………………… Respondents ----------- 06. 28.03.2011 Heard learned counsel for the petitioner and the counsel appearing for the State. Counter Affidavit has been filed on behalf of Respondents, which is on record. Petitioner has filed this application for quashing of orders, contained in District Order No. 87/2001, dated 13.08.2001, issued by the District Commandant, Home Guards, Patna as well as District Order No. 118/2003, dated 27.08.2003, whereby Rs. 1,21,371/- has been directed to be adjusted from the leave-encashment of the petitioner. Further prayer is for quashing of Annexure-6 and 6/1, which is payment orders issued from the Office of Accountant General on account of 2 re-fixation and reduction of pay-scale of the petitioner as a consequence of District Order No. 87/2001, dated 13.08.2001 (Annexure-3). Petitioner’s case is that he was appointed in the year 1972 as Nayak Instructor and was sent on deputation to BCCL, Jharia. He remained on deputation in BCCL, Jharia till 1981. In the year 1981, he rejoined Home Guards and finally superannuated from his service in April, 2001. Four months subsequent to his superannuation, District Order No. 87/2001, contained in Memo No. 1589, dated 13.08.2001 was issued under the signature of District Commandant, Home Guards, Patna, whereby his date of appointment has been shifted from 1972 to 1981 and his salary has also been fixed in the reduced pay-scale on account of reduction of his length of service. His provisional pension was fixed, considering the reduced pay-scale. It has also been submitted that on account of Annexure-3, the increment, which was allowed to the petitioner during his service period and on account of which he was getting salary in the higher pay-scale that was cancelled and salary, which was paid to him during his service period in the higher pay-scale that was 3 considered as an excess payment and an Order of recovery of Rs. 1,21,371/- was issued vide Annexure-5 from petitioner’s unutilized leave account. From the Counter Affidavit it transpires that steps for recovery from unutilized leave account of the petitioner has been made in the light of the instruction of Finance Department. Petitioner was initially appointed temporarily in the year 1972 and was sent on deputation to BCCL, Jharia. The period during which he remained on deputation in BCCL, Jharia that could not be counted as his service in Home Guards. This issue has already been decided in earlier case. Reference of which has been given in para 17 of the Counter Affidavit. It has also been stated that order passed in the Writ Application was also upheld by the LPA Bench. The petitioner now can not agitate the same issue, which is already settled. However, counsel for the petitioner submits that the Annexure-C/1 to the Counter Affidavit indicates that even in case the service rendered by the employee with BCCL is not to be considered as period of service in Home Guards, recovery should have been made during the service period of the 4 employee. No recovery could have been made from the pensionary benefits. Recovery could have been made as per the direction contained in Annexure- C/1, but in case of the petitioner, the Respondents have made such recovery, completely against the direction contained in Annexure-C/1. Counsel for the petitioner has also produced an order passed in the case of Ravindra Tiwari. In his case, direction was issued to refund the recovered amount, as it had been made from his pensionary benefits. The relief prayed by the petitioner regarding the counting of length of service rendered with BCCL, Jharia and reduction of pay- scale, can not be considered, as issue is already settled. But so far the recovery part is concerned, the Respondents could not have done it, especially going against their own direction, contained in Annexure-C/1. This application is being disposed of directing the District Commandant, Bihar Home Guards Force (Grih Raksha Vahini), Patna, Respondent No. 4 to pass an order in favour of the petitioner for refunding the amount recovered from the pensionary benefits of the petitioner. Recovered 5 amount must be refunded to the petitioner within 12 weeks from the date of production / communication of this order. This application is partially allowed. SKM (Mridula Mishra, J.)