Civil Writ Jurisdiction Case No. 679 of 2005 ……… In the matter of an application under Article 226 of the Constitution of India ------- Vidya Dutta Pandey ‘Prabhakar’ ..…..Petitioner Versus The State of Bihar & Ors. …… Respondents -------- For the Petitioner : Mr. Uma Kant Shukla, Advocate For the Respondents : Mr. Alok Kumar, A.C. to G.A. 1. For the Accountant General: Mr. Rajnandan Prasad. ------- O R D E R THE HON’BLE MR. JUSTICE JYOTI SARAN -------- 04/ 30-11-2009 The petitioner had filed the writ petition seeking quashing of the Memo No. 1605 dated 11.09.2002 (Annexure-1) and Letter No. 47 dated 19.10.2002 (Annexure-2), whereby a sum of Rs. 25,198/- was deducted from the gratuity amount of the petitioner on grounds of excess payment having been made to him during his service tenure. Heard Mr. Uma Kant Shukla, learned counsel appearing on behalf of the petitioner and Mr. Alok Kumar learned assisting counsel to G.A. 1 for the State and Mr. Raj Nandan Prasad, learned counsel representing the Accountant General. With the consent of the parties, this writ petition is being disposed of at the stage of admission itself. 2 The facts of the case briefly stated is that the petitioner was appointed as Assistant Teacher in the year 1961 and was granted the Trained Graduate Scale on 15.12.1980. He was granted first time bound promotion with effect from 1.4.1981 and he continued to draw the salary in the promoted scale until March, 1994 when the said promotion was withdrawn. The petitioner retired from service with effect from 31.7.2002. It is after the retirement of the petitioner that the impugned order came to be issued vide Memo No. 1605 dated 11.9.2002 (Annexure-1), issued under the signature of District Superintendent of Education, East Champaran and addressed to the Area Education Officer, Areraj, East Champaran. The District Superintendent of Education by the said letter had informed the Area Education Officer that during the course of fixation of the pension of the petitioner it had come to light that the petitioner had been granted Trained Graduate Scale on 15.12.1980 and was granted his first time bound promotion on 1.4.1981 and which was illegal. According to the District Superintendent of Education, the certificate given by the Area Education Officer restraining recovery in the light of the Memo No. 138 dated 24.3.1994 of the Director, Primary Education, was not 3 correct since the petitioner was not a party to the writ proceedings arising from C.W.J.C. No. 5251 of 1990 and that the said order was not applicable to his case and was applicable only to the petitioners of the said case. In the said background, the District Superintendent of Education recommended for recovery of the amount paid to the petitioner by reason of his first time bound promotion. In view of the recommendation as contained in Annexure-1, the Area Education Officer vide letter dated 19.10.2002 (Annexure-2) has approved the recovery of the amount drawn by the petitioner by reason of the first time bound promotion said to be in excess to the tune of Rs. 25,198/-. Learned counsel appearing on behalf of the petitioner submits that the order as contained in Annexures- 1 and 2 are per se arbitrary and have been issued in gross abuse of powers. He further submits that this issue stands concluded by the decision taken by the Director, Primary Education as contained in his Memo No. 138 dated 24.3.1994 (Annexure-5) issued in the light of the judgment passed by this Court in a case arising from C.W.J.C. No. 5251 of 1990 (Ramadhar Shukla Versus State of Bihar) and an order of the Supreme Court rendered in a case arising from Civil Appeal No. 4534 of 1990. The Director, Primary Education while noticing the orders passed by the High Court and the Supreme Court had ordered that there would 4 be no recovery of any amount paid to the petitioner even though the same was not found to be legal. A counter affidavit has been filed on behalf of the State opposing the prayer, on grounds that since it was found that an amount of Rs. 25,198/- was paid to the petitioner in excess of his entitlement, hence the same upon detection was deducted from his gratuity amount. It was stated that the recovery was legal and valid. Learned counsel appearing on behalf of the State submits that in terms of the Finance Department’s resolution a Headmaster could only be entitled to first time bound promotion after completion of 12 years of posting but the writ petitioner had claimed the time bound promotion and increment with effect from 1.4.1981 itself which was not correct. It was further submitted that the order passed in C.W.J.C. No. 5251 of 1990 was not binding in so far as the case of the petitioner is concerned. Learned counsel appearing for the Accountant General who has also filed a counter affidavit today, supports the impugned action. It is an admitted position that the petitioner is drawing his retiral benefits on the reduced scale meaning thereby that the retiral benefits are being paid as per his entitlement. The only issue which falls for consideration is whether the recovery of Rs. 25,198/- said to be the excess 5 amount paid to the petitioner by reason of the first time bound promotion on 1.04.1981 is sustainable especially in the background that the time bound promotion of the petitioner had been withdrawn during his service tenure itself with effect from March, 1994 and the petitioner superannuated with effect from 31.7.2002 i.e. more than 8 years thereafter. It is also an admitted position that no proceeding was initiated by the respondents for recovery of the said amount even when the same was detected in March, 1994 rather the same was initiated after retirement of the petitioner and at the stage of fixation of pension. It is not the case of the respondents that the petitioner had any hand in the grant of his time bound promotion or the same was granted to him by reason of any fraud or misrepresentation or representation exercised by the present petitioner. It is also an admitted position that a decision in identical circumstances has been taken in the light of an order passed by this Court in C.W.J.C. No. 5251 of 1990 and in the light of the order of the Supreme Court referred to in the order of the Director, Primary Education dated 24.3.1994 (Annexure-5) not to recover the excess amount from such of the employees who had derived time bound promotion benefits contrary to their entitlement. Having given anxious consideration to the issue, I come to the an irresistible conclusion that undoubtedly there 6 was no collusive act on the part of the petitioner in deriving the benefits. In fact the same was even withdrawn by the respondents subsequently with effect from 1994 and whereafter the petitioner continued to serve the respondents in the lower scale and has also been paid his retiral benefits at the reduced scale. It is indisputed that no proceeding was initiated by the respondents to recover this amount during his service tenure and even at the present juncture the impugned orders as contained in Annexures 1 and 2 have been passed in gross violation of the principles of natural justice as the petitioner has not been heard on the issue although a copy of the order as contained in Annexure-1 was forwarded to the petitioner by way of information and in response thereto he has also filed a representation for extending the benefits and relief in the light of the decision taken by the Director, Primary Education as contained in Annexure-5 and for payment of the withheld amount of Rs. 25,198/- . A perusal of the letter of the District Superintendent of Education impugned at Annexure-1 of the writ petition clearly shows that the only reason assigned by the District Superintendent of Education in support of recovery is that the petitioner was not a party to the writ petition arising from C.W.J.C. No. 5251 of 1990 and thus in his opinion the decision taken by the Director was not 7 applicable in the case of the petitioner. The impugned action of the respondents cannot be sustained. It is bad by reason of having been taken in violation of the principles of natural justice. It is also unsustainable because no proceedings much less any show cause was issued to the petitioner prior to the issuance of the impugned orders. It is unsustainable inasmuch as a differential treatment is being given to the petitioner qua the writ petitioner of C.W.J.C. No. 5251 of 1990. Further the grant of the time bound promotion is not by reason of any fraud, mispresentation or the like. The impugned orders thus cannot be sustained on any count. In the result, this writ petition is allowed and the impugned orders as contained in Annexures 1 and 2 are quashed and set aside and respondents are directed to refund the amount of Rs. 25.198/- deducted from the gratuity amount of the petitioner within a period of three months from the date of receipt/production of a copy of this order. The writ petition stands allowed with the aforesaid directions. S.Sb/- (Jyoti Saran, J.)