IMPORTANT POINT
Recovery of excess payments from retired employees, particularly those in Class III and IV service, is impermissible under law, especially when no fraud or misrepresentation has occurred.

JUDGMENT :

Sanjay Prasad, J.

This writ petition has been filed on behalf of the petitioner for quashing of the order issued by Memo No. 106, dated 23.02.2017 (i.e. Annexure-6) by the Joint Agriculture Director, Santhal Pargana Area, Dumka by which pay scale of the petitioner in respect of the 1st A.C.P. and 2nd A.C.P. has been revised in the light of the decision of the Screening Committee and it has further been directed to recover the excess payment made to the petitioner. It has also further been ordered in the said memo dated 23.02.2017 that the 3rd M.A.C.P. will be paid to the petitioner only after recovery of excess payment made to him so far as this petitioner is concerned.

2. Heard Mr. Sumeet Gadodia, learned counsel for the petitioner and Mr. Devesh Krishna, learned S.C.(Mines)-II for the respondents.

3. Learned counsel for the petitioner has submitted that the impugned Office order dated 23.02.2017, as contained in Annexure 6, is illegal, arbitrary and not sustainable in the eye of law. It is submitted that the petitioner has satisfactorily completed 35 years of service. It is submitted that after implementation of the 5th Pay Revision, the pay of the petitioner was fixed in the pay scale of Rs.4,500-7,000/-with effect from 01.01.1996 and he was granted second A.C.P. on 07.8.2003 with effect from 09.8.1999 in the pay-scale of Rs.5,000-8,000/-. However, in view of the representation made by the petitioner and others, the Fitment Appellate Committee had revised the initial pay scale of the petitioner from Rs.4,500-7,000/-to Rs.5,000-8,000/-. Consequently, second A.C.P. granted to the petitioner was revised vide Memo No.625 dated 07.07.2008, i.e. vide Annexure 3 with effect from 09.8.1999 in the Pay scale of Rs.5,500-9,000/-by the Divisional Commissioner. Thereafter, the petitioner had superannuated from service on 30.6.2009 and he was given entire retiral benefits and he was getting pension in the light of the said pay scale of Rs. 5,500-9,000/-

However, suddenly vide Office Order dated 23.02.2017 (Annexure 6) the benefit of 2nd A.C.P. granted to the petitioner was cancelled, although the third M.A.C.P. was approved in the case of the petitioner and others with effect from 11.8.2001 but in the said Office order it was ordered that benefit of third M.A.C.P. will be made subject to recovery of excess payment given to the petitioner by giving wrong scale of first A.C.P. in the pay-scale of Rs.5,000 -8,000/-instead of Rs.4,500-7,000/-and second A.C.P. in the scale of Rs. 5,500-9,000/-instead of Rs.5,000-8,000/-and excess amount has been directed to be recovered. It is submitted that there is no fraud or misappropriation on the part of the petitioner.

Learned counsel for the petitioner further submitted that no recovery can be made from him as the petitioner has retired long back. In support of the same, learned counsel for the petitioner has placed reliance on the judgment passed in the case of Ambika Prasad & Ors. Vs. State of Jharkhand & Ors. reported in 2017 SCC OnLine Jhar 4141 and in the case of Girija Prasad Singh Vs. State of Jharkhand & Ors. reported in 2017 SCC OnLine Jharkhand 2998.

It is further submitted that after retirement, no recovery can be made from Class III and Class IV employees even if any excess payment has been made in view of the judgment of Hon’ble Supreme Court passed in the case of State of Punjab & Ors. Vs. Rafiq Masih & Ors. reported in (2015) 4 SCC 334.

It is submitted that in view of the above judgments, the impugned order may be quashed partially so that the part of order relating to his second A.C.P. is modified to the extent that the benefit of Second A.C.P. of Rs.5,500-9,000/-be restored to him, which was extended to him on the pay-scale of Rs.5,000-8,000/-fixed pursuant to the decision of the Fitment Appellate Committee and that no recovery can be made from him and further the third M.A.C.P. benefit may be allowed to the petitioner by the respondents.

4. On the other hand, Mr. Devesh Krish