IMPORTANT POINT
Recovery of excess payments from Class III employees is impermissible without fraud or misrepresentation, as established by the Supreme Court.

JUDGMENT :

1. The present writ petition has been filed for quashing/setting aside the office order as contained in memo no.130 dated 6th August, 2020 issued by the Special Land Acquisition Officer, Subarnrekha Project, Chandil- respondent no.3, whereby the said respondent has passed an order for recovery of Rs.5,13,664/-. Further prayer has been made for issuance of direction upon the respondents to refund the said amount, which has already been deducted from the salary of the petitioner.

2. The main submission of learned counsel for the petitioner is that the recovery of Rs.5,13,664/- sought to be made by the impugned order dated 6th August, 2020 is illegal, as there was no misrepresentation on the part of the petitioner in receiving the said amount. It is submitted that in view of memo no.151 dated 08.11.2018 issued by the Finance Department, Government of Jharkhand, if any excess payment is wrongly made to any employee without any fraud and misrepresentation made on the part of such employee, then the said payment shall not be recovered in the following situations: -

(i) if the employee belongs to Class III and Class IV service (or Group ‘C’ and Group ‘D’ service).

(ii) ------

(iii) Recovery from employees when the excess payment has been made for a period in excess of five years before the order of recovery is issued

(iv) ------

3. It is further submitted that the petitioner has already retired from service on 30th June, 2022 on attaining the age of superannuation. Since prior to the date of his retirement, the said amount of Rs.5,13,664/- has already been recovered from the salary of the petitioner, the respondent authorities may be directed to refund the same to him with appropriate interest.

4. Mr. Ajit Kumar, learned A.C. to G.A.V appearing on behalf of the respondents, while relying on the counter affidavit filed on behalf of the respondent nos.2 and 3, submits that the petitioner was posted as Typist on 14th June, 1991 and, accordingly, first ACP was due to the petitioner on 14th June, 2003 i.e. 12 years after his joining in service. Similarly his 2nd and 3rd MACP were also due on 14th June, 2011 and 14th June, 2021, respectively. However, as per the norms of the service, the petitioner should have qualified in the departmental accounts examination to become eligible for availing the benefit of ACP/MACP. It has been clearly mentioned in Clause 5(X) of Circular no.1779 dated 21st May, 2014 issued by the Finance Department that if any employee qualifies his departmental accounts examination beyond due time, in that situation the concerned authority shall have the full right to recover the amount paid to an employee in excess of his salary. In the present case, the petitioner could not qualify the departmental accounts examination on due time. However, he qualified the said examination on 25th August, 2011 i.e. after eight years two months and eleven days. Therefore, the concerned authority has not done anything wrong by deducting the amount paid to him during the period 25th August, 2011 to 1st July, 2020.

5. It is further submitted that at the time of fixation of salary on account of grant of ACP/MACP, the petitioner had given an undertaking that if there is any misrepresentation of fact made by him, the amount paid to him in excess of his normal salary would be refunded by him. Therefore, there is no question of any illegality in deducting the excess amount paid to the petitioner. Hence, the impugned order passed by the respondent no.3 is not in violation of the resolution as contained in memo no.151 dated 8th November, 2018.

6. Having heard learned counsel for the parties and on perusal of the materials available on record, it appears that the petitioner has not questioned the decision of the respondent authorities with respect to his entitlement to get the benefit of ACP/MACP from particulate dates, rather his prayer in the present writ petition is confined to quashing of the office order as contained in memo no.130 dated 6