Ram Binay Sharma Vs. Human Resources Department - Court Judgment

SooperKanoon Citationsooperkanoon.com/111008
CourtJharkhand High Court
Decided OnSep-07-2017
AppellantRam Binay Sharma
RespondentHuman Resources Department
Excerpt:
in the high court of jharkhand, ranchi w.p.(s) no. 4334 of 2015 ram binay sharma, s/o late bachchu singh, presently residing at & p.o.:- kespa, p.s.:- alipur, district :-gaya, bihar. ..... petitioner(s) versus 1. the state of jharkhand through the secretary, human resource development department, govt. of jharkhand, ranchi, project building, dhurwa, p.o. & p.s.:-dhurwa, district :-ranchi.2. the regional deputy director of education, hazaribagh, p.o+p.s+ district :- hazaribagh.3. the district education officer, dhanbad, p.o.+p.s.+district :- dhanbad.4. the accountant general (a&e), jharkhand, p.o. & p.s.:- doranda, ranchi, district :-ranchi. …. respondent(s) coram: hon’ble mr. justice dr. s. n. pathak for the petitioner(s) : mr. baranwal s. lal, sr. advocate mr. shiv prasad., advocate. for the respondent(s) : mr. binod singh, s.c (l&c) for the accountant general: mrs. richa sanchita, advocate. ----- 07/07.09.2017. heard learned senior counsel appearing for the petitioner and learned counsel for the accountant general as well as learned counsel for the state.2. the petitioner has prayed before this court for a direction to the respondents for making payment of salary and pension @ rs.5500-175-9000/- as per the resolution no.5207 dated 14.08.2002, which has been reduced by the accountant general unilaterally and arbitrarily. further prayer has been made for a direction to the respondents- accountant general for issuance of orders regarding payment of salary as per the last pay scale.3. it appears that the petitioner was appointed as clerk on 13.02.1975 and continued in service, completed 12 years of service without any interruption. the case of the petitioner was considered and as such, was granted the benefits of 1 st a.c.p. on 09.08.1999 and on getting the benefits of 1 st acp, his salary was fixed at rs.5,000-150-8000/-. the petitioner along with 30 persons was granted a.c.p. which was also communicated in view of the resolution of the finance committee vide resolution no.5207 dated 14.08.2002 and the same was communicated to rdde through letter no.2714, dated 21.09.2007.4. it has further been submitted that as the petitioner joined the service of the respondent(s) in the year 1975, he was entitled for grant of time bound promotion in the year 1987 itself, but it was neither considered nor its benefits were given as per the -2- policy decision in view of the resolution dated 09.08.1999 of r.d.d.e., north chotanagpur division, hazaribagh and a.c.p. came into its existence and as such, the cases were considered for granting benefits by way of a.c.p. and not the time bound promotion in which the length of service was to be considered as 12 years and 24 years from the date of initial appointment.5. in view of the rules and guidelines of the assured career progressionscheme, the petitioner was also entitled for the benefits of 2nd a.c.p. which was also considered and the benefits were given from the cut-off date i.e. 09.08.1999 under the order of rdde vide letter no.533 dated 30.04.2010 in the pay scale of rs.5500-175-9000/- and the salary of the petitioner was regularly paid till the date of his retirement i.e. 31.12.2013.6. it is further case of the petitioner that office of the accountant general, jharkhand vide its order dated 09.06.2014, directed the district treasury officer, dhanbad, to make payment of rs.11,970/- only with effect from 01.01.2014, as the amount of salary fixed at the pay scale @ rs.5,000/-150- 8000/- and denied to make payment of 2nd acp for which the petitioner was also entitled in the pay scale of rs.5500-175-9000.7. it further appears that vide its order dated 14.09.2010, the district education officer, dhanbad, granted pay scale of rs.5500-7600/- as per the 5th pay revision commission report and accordingly pay band applicable to the petitioner of rs.9300- 34,800/- and the grade pay of rs.4200/-.8. that after retirement of the petitioner on 31.12.2013, the office of the accountant general issued letter no.666 dated 19 th august, 2013, addressed to the district education officer, regarding resolution no.5207 dated 04.08.2002 as per which the pay scale after 1st a.c.p. was to be fixed at rs.4500/- and 2 nd a.c.p. was fixed as rs.5,000/- and as such, the petitioner is not entitled to get pay scale of rs.4500/-. hence, the service book of the petitioner was returned.9. that it further appears that the same was replied by the district education officer stating therein that the pay scale and grant of the pay scale in view of grant of 1st a.c.p. and 2nd a.c.p., has rightly been fixed in view of the fitment committee's order and direction and as such, there is no illegality. as per the fitment committee, the finance department of government issued a letter no.2714 dated 21.09.2007, mentioning therein that “ukt sankalp men4000-6,000 ke vet anman men karyarat -3- karmiyon ka sithe50008000/- swikirt kiya gaya hai. spast hai ki45007000 ka vet anman vilopit ho chuka hai tadnusar sabhi lipikon ko pratham acp ka labh vitt vibhag ke sankalp san. 2714 dinank2109.2007 ke aalok men5000se8000ka vetanman saksham padadhikari dwara swikriti di gai hai tatha dwitiya acp thik agale vetanman5500se9000men di gai hai jo yathochit hai”. though grant of a.c.p. given to the petitioner was approved by the respondent-authorities, the office of the accountant general adhered to the reply of the respondent- district education officer and as per their own sweet-will, in complete defiance to the rules, passed an order for deduction in the amount of pension and fixing the salary as per the deducted amount holding therein that the petitioner is not entitled for the benefits of 1st a.c.p. and 2nd a.c.p.10. the petitioner made several representations, but no heed was paid and as such, the present writ petition has been preferred before this court.11. the learned sr. counsel, mr. baranwal s. lal assisted by mr. shiv prasad strenuously urges that once the benefits of the a.c.p. has been granted to the petitioner duly affirmed and approved by the competent authorities of the department/state, the same could not have been taken away arbitrarily and the amount paid to the petitioner in view of the a.c.ps., could not have been reduced from the pension after his retirement. he submits that the petitioner retired in the year 2013 itself and the amount was reduced from the pension in the same year i.e. also on the objection raised by the accountant general.12. learned sr. counsel further submits that the accountant general is not an authority to reduce the amount of pension which was already fixed on the last pay scale drawn by the petitioner. learned sr. counsel in order to buttress his arguments, relied on the full bench decision of this court reported in 2007 (4) jljr459 in the case of laxman prasad gupta vs. state of jharkhand and also in a case reported in 2007 (4) jljr466 in the case of smt. normi topno vs. the state of jharkhand. he further submits that pension of the petitioner should be fixed on the last pay scale drawn on the date of retirement.13. per contra, counter-affidavit has been filed by the state and mr. binod singh, learned counsel appearing for the state argued that the state has already approved the a.c.p. granted to -4- the petitioner and it was only the accountant general which has raised objection for reduction of the pension after the retirement of the petitioner.14. mrs. richa sanchita, learned counsel appearing for the accountant general argues that it is admitted fact and settled principle of law that an employee is entitled for fixation of pension as per the last pay scale drawn by him. if any illegality has been done by the department, as the same was approved by the state, the same is subject to correction. she fairly argues that the correction will be done in accordance with the settled principles of law and taking into account the full bench decision.15. having gone through the rival submissions of the parties, this court is of the considered view that after retirement, no recovery/any reduction can be done from the pension of a class-iii employee which has been categorically held in a catena of decisions, particularly in the case of state of punjab & ors. vs. rafiq masih (white washer), reported in 2015 (4) scc334 stating therein that even prior to one year of retirement, the amount from the pension cannot be recovered/reduced.16. in view of the aforesaid observations, rules, guidelines and judicial pronouncements, i hereby, direct the respondent no.2 to verify the service book of the petitioner and if at all, it is required , the same be sent to the accountant general for refixation of the pension of the petitioner in accordance with law taking into consideration the full bench judgment and that of the apex court held in the case of rafiq masih (supra).17. let it be clear that the amount which has already been paid to the petitioner duly approved by the state authorities, the accountant general cannot raise any objection to the sanctioned amount already approved by the state authorities.18. resultantly, the writ petition stands allowed.19. the respondents are hereby directed to make suitable and necessary correction for fixing the amount of pension in the last pay scale drawn by the petitioner at the time of retirement and if any amount has been recovered or reduced, the same should be refunded to the petitioner within six weeks from the date of receipt of a copy of this order. (dr. s. n. pathak, j.) sandeep/
Judgment:

IN THE HIGH COURT OF JHARKHAND, RANCHI W.P.(S) No. 4334 of 2015 Ram Binay Sharma, S/o Late Bachchu Singh, presently residing at & P.O.:- Kespa, P.S.:- Alipur, District :-Gaya, Bihar. ..... Petitioner(s) Versus 1. The State of Jharkhand through the Secretary, Human Resource Development Department, Govt. of Jharkhand, Ranchi, Project Building, Dhurwa, P.O. & P.S.:-Dhurwa, District :-Ranchi.

2. The Regional Deputy Director of Education, Hazaribagh, P.O+P.S+ District :- Hazaribagh.

3. The District Education Officer, Dhanbad, P.O.+P.S.+District :- Dhanbad.

4. The Accountant General (A&E), Jharkhand, P.O. & P.S.:- Doranda, Ranchi, District :-Ranchi. …. Respondent(s) CORAM: HON’BLE MR. JUSTICE DR. S. N. PATHAK For the Petitioner(s) : Mr. Baranwal S. Lal, Sr. Advocate Mr. Shiv Prasad., Advocate. For the Respondent(s) : Mr. Binod Singh, S.C (L&C) For the Accountant General: Mrs. Richa Sanchita, Advocate. ----- 07/07.09.2017. Heard learned senior counsel appearing for the petitioner and learned counsel for the Accountant General as well as learned counsel for the State.

2. The petitioner has prayed before this Court for a direction to the respondents for making payment of salary and pension @ Rs.5500-175-9000/- as per the Resolution No.5207 dated 14.08.2002, which has been reduced by the Accountant General unilaterally and arbitrarily. Further prayer has been made for a direction to the respondents- Accountant General for issuance of orders regarding payment of salary as per the last Pay Scale.

3. It appears that the petitioner was appointed as Clerk on 13.02.1975 and continued in service, completed 12 years of service without any interruption. The case of the petitioner was considered and as such, was granted the benefits of 1 st A.C.P. on 09.08.1999 and on getting the benefits of 1 st ACP, his salary was fixed at Rs.5,000-150-8000/-. The petitioner along with 30 persons was granted A.C.P. which was also communicated in view of the Resolution of the Finance Committee vide Resolution no.5207 dated 14.08.2002 and the same was communicated to RDDE through Letter No.2714, dated 21.09.2007.

4. It has further been submitted that as the petitioner joined the service of the respondent(s) in the year 1975, he was entitled for grant of Time Bound Promotion in the year 1987 itself, but it was neither considered nor its benefits were given as per the -2- policy decision in view of the Resolution dated 09.08.1999 of R.D.D.E., North Chotanagpur Division, Hazaribagh and A.C.P. came into its existence and as such, the cases were considered for granting benefits by way of A.C.P. and not the Time Bound Promotion in which the length of service was to be considered as 12 years and 24 years from the date of initial appointment.

5. In view of the rules and guidelines of the Assured Career Progressionscheme, the petitioner was also entitled for the benefits of 2nd A.C.P. which was also considered and the benefits were given from the cut-off date i.e. 09.08.1999 under the order of RDDE vide Letter No.533 dated 30.04.2010 in the Pay Scale of Rs.5500-175-9000/- and the salary of the petitioner was regularly paid till the date of his retirement i.e. 31.12.2013.

6. It is further case of the petitioner that Office of the Accountant General, Jharkhand vide its order dated 09.06.2014, directed the District Treasury Officer, Dhanbad, to make payment of Rs.11,970/- only with effect from 01.01.2014, as the amount of salary fixed at the pay scale @ Rs.5,000/-150- 8000/- and denied to make payment of 2nd ACP for which the petitioner was also entitled in the pay scale of Rs.5500-175-9000.

7. It further appears that vide its order dated 14.09.2010, the District Education Officer, Dhanbad, granted Pay Scale of Rs.5500-7600/- as per the 5th Pay Revision Commission Report and accordingly pay band applicable to the petitioner of Rs.9300- 34,800/- and the Grade Pay of Rs.4200/-.

8. That after retirement of the petitioner on 31.12.2013, the office of the Accountant General issued Letter No.666 dated 19 th August, 2013, addressed to the District Education Officer, regarding Resolution No.5207 dated 04.08.2002 as per which the Pay Scale after 1st A.C.P. was to be fixed at Rs.4500/- and 2 nd A.C.P. was fixed as Rs.5,000/- and as such, the petitioner is not entitled to get Pay Scale of Rs.4500/-. Hence, the service book of the petitioner was returned.

9. That it further appears that the same was replied by the District Education Officer stating therein that the Pay Scale and grant of the Pay Scale in view of grant of 1st A.C.P. and 2nd A.C.P., has rightly been fixed in view of the Fitment Committee's order and direction and as such, there is no illegality. As per the Fitment Committee, the Finance Department of Government issued a Letter No.2714 dated 21.09.2007, mentioning therein that “UKT SANKALP MEN4000-6,000 KE VET ANMAN MEN KARYARAT -3- KARMIYON KA SITHE50008000/- SWIKIRT KIYA GAYA HAI. SPAST HAI KI45007000 KA VET ANMAN VILOPIT HO CHUKA HAI TADNUSAR SABHI LIPIKON KO PRATHAM ACP KA LABH VITT VIBHAG KE SANKALP SAN. 2714 DINANK2109.2007 KE AALOK MEN5000SE8000KA VETANMAN SAKSHAM PADADHIKARI DWARA SWIKRITI DI GAI HAI TATHA DWITIYA ACP THIK AGALE VETANMAN5500SE9000MEN DI GAI HAI JO YATHOCHIT HAI”. Though grant of A.C.P. given to the petitioner was approved by the respondent-authorities, the office of the Accountant General adhered to the reply of the respondent- District Education Officer and as per their own sweet-will, in complete defiance to the Rules, passed an order for deduction in the amount of pension and fixing the salary as per the deducted amount holding therein that the petitioner is not entitled for the benefits of 1st A.C.P. and 2nd A.C.P.

10. The petitioner made several representations, but no heed was paid and as such, the present Writ Petition has been preferred before this Court.

11. The learned Sr. counsel, Mr. Baranwal S. Lal assisted by Mr. Shiv Prasad strenuously urges that once the benefits of the A.C.P. has been granted to the petitioner duly affirmed and approved by the competent authorities of the Department/State, the same could not have been taken away arbitrarily and the amount paid to the petitioner in view of the A.C.Ps., could not have been reduced from the pension after his retirement. He submits that the petitioner retired in the year 2013 itself and the amount was reduced from the Pension in the same year i.e. also on the objection raised by the Accountant General.

12. Learned Sr. counsel further submits that the Accountant General is not an authority to reduce the amount of pension which was already fixed on the last Pay Scale drawn by the petitioner. Learned Sr. counsel in order to buttress his arguments, relied on the Full Bench decision of this Court reported in 2007 (4) JLJR459 in the case of Laxman Prasad Gupta Vs. State of Jharkhand and also in a case reported in 2007 (4) JLJR466 in the case of Smt. Normi Topno Vs. The State of Jharkhand. He further submits that pension of the petitioner should be fixed on the last pay Scale drawn on the date of retirement.

13. Per contra, counter-affidavit has been filed by the State and Mr. Binod Singh, learned counsel appearing for the State argued that the State has already approved the A.C.P. granted to -4- the petitioner and it was only the Accountant General which has raised objection for reduction of the Pension after the retirement of the petitioner.

14. Mrs. Richa Sanchita, learned counsel appearing for the Accountant General argues that it is admitted fact and settled principle of law that an employee is entitled for fixation of pension as per the last Pay Scale drawn by him. If any illegality has been done by the Department, as the same was approved by the State, the same is subject to correction. She fairly argues that the correction will be done in accordance with the settled principles of law and taking into account the Full Bench decision.

15. Having gone through the rival submissions of the parties, this Court is of the considered view that after retirement, no recovery/any reduction can be done from the pension of a Class-III employee which has been categorically held in a catena of decisions, particularly in the case of State of Punjab & Ors. Vs. Rafiq Masih (white washer), reported in 2015 (4) SCC334 stating therein that even prior to one year of retirement, the amount from the pension cannot be recovered/reduced.

16. In view of the aforesaid observations, rules, guidelines and judicial pronouncements, I hereby, direct the respondent no.2 to verify the service book of the petitioner and if at all, it is required , the same be sent to the Accountant General for refixation of the pension of the petitioner in accordance with law taking into consideration the Full Bench judgment and that of the Apex Court held in the case of Rafiq Masih (supra).

17. Let it be clear that the amount which has already been paid to the petitioner duly approved by the State authorities, the Accountant General cannot raise any objection to the sanctioned amount already approved by the State authorities.

18. Resultantly, the Writ Petition stands allowed.

19. The respondents are hereby directed to make suitable and necessary correction for fixing the amount of Pension in the last Pay Scale drawn by the petitioner at the time of retirement and if any amount has been recovered or reduced, the same should be refunded to the petitioner within six weeks from the date of receipt of a copy of this order. (Dr. S. N. Pathak, J.) Sandeep/