Mahadeo Ram vs State of Jharkhand and Others

S.J. Mukhopadhaya, J.—The petitioner has challenged the orders, contained in letters dated 19th February, 2002 and 11th July, 2002 issued by the 4th respondent - Senior Accounts Officer, AC (A&E) II, Bihar and Jharkhand, Patna, whereby and where-under, the respondents raised objection relating to revision of pay allowed to petitioner since 1st April, 1981 and ordered to fix the pay in the lower scale of Rs. 535-765/-, with further order to recover the amount from the petitioner.

The brief fact of the case is that the petitioner joined the services of the State as untrained Health Worker on 23rd January, 1960 and completed training of Health Inspector in September, 1969. During service period, his pay was revised w.e.f. 1.4.1981 and thereafter w.e.f. 1.3.1986. On such revision, his pay was fixed and he was paid the salary. Subsequently, the petitioner superannuated from the services of the respondents State from the post of Trained Health Worker on 28th February, 1998.

After four years of retirement, when the matter was taken up, the respondents raised certain objections relating to fixation of pension as was fixed since 1st April, 1981. When the matter was brought to the notice of the AG (A&E) II, Bihar and Jharkhand, Patna, the impugned orders, contained in letters dated 19th February, 2002 and 11th July, 2002 were issued for fixation of pay in the lower grade and recovery from the retiral benefits.

The counsel appearing for the AG Bihar referred to the affidavit filed on behalf of respondent Nos. 3 and 4. According to them (respondents 3 and 4), the Pay Revision Committee report made effective from 1st April, 1981 was allowed for both Matric and Non-Matric Health Worker in the scale of Rs. 400-540/-. Subsequently, the Pay Anomaly Removal Committee recommended to pay the Matriculate Health Worker the upgraded scale of Rs. 535- 765/- w.e.f. 1st March, 1986, which was wrongly given to the petitioner.

The clarification regarding admissibility of pay scale to the Health Worker was subsequently received from the Deputy Director, Health Services, Bihar, Patna, vide letter No. 933(4) dated 6th October, 2001.

In the present case, the respondents, in fact failed to clarify the mistake, if any, committed, when the petitioner was granted the revised scale w.e.f. 1st April, 1981.

In any case, no allegation made against the petitioner that the pay of petitioner was revised, but because of his misrepresentation. The petitioner having retired on 28th February, 1998, after more than 3-1/2 years, if any clarification was made, vide letter No. 933(4) dated 6th October, 2001, it was n6t open to the respondents to make it applicable from a retrospective date even to the employees who have already retired from the services of the State.

In any case, after more than 21 years of revision of pay and four years after retirement of petitioner, the respondents would not have reopened the issue of fixation of pay, as was made w.e.f. 1st April, 1981.

In a similar case of Nakul Raut v. State of Jharkhand, reported in 2002 (1) JLJR 597 : 2002 (1) JCR 103 (Jhr) this Court held that the authorities cannot reopen the issue relating to legality and propriety of order of promotion after retirement, nor can recover any amount.

Though, this is not the case where the respondents have reopened the question of legality and propriety of promotion, but the principle laid down by the Court in the aforesaid case is also applicable.

For the reasons aforesaid, as the respondents cannot reopen the issue at this stage after retirement of petitioner, the impugned orders, contained in letter Nos. Pen 4-2718 dated 19th February, 2002 and Pen 4/715 dated 11th July, 2002 issued by the 4th respondents are set aside.

The respondents are directed to fix the pension, gratuity and leave encashment of petitioner on the basis of last pay drawn by the petitioner and will refund the amount, if any already recovered, along with arrears of retiral benefits within a period of two months from the date of receipt/production of a copy of this order.

The writ petition is allowed with the aforesaid observations and directions.