ORDER

1. Heard finally with the consent of both the parties.

2. By filing this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:-

i. This Hon’ble Court may kindly be pleased to call for the entire relevant record from the possession of the respondents, for kind perusal;

ii. This Hon’ble Court may kindly be pleased to quash and set aside the impugned orders dated 31.12.2015 (Annexure-P/1) and 6.1.2016 (Annexure-P/2);

iii. This Hon’ble Court may kindly be pleased to command and direct the respondents that the impugned recovery be forthwith remitted to petitioner with interest thereon @18% p.a. till its realization;

iv. This Hon’ble Court may kindly be pleased to command and direct the respondents for restoration of pension of petitioner by recording two advance increments as were part of the salary of the petitioner and all retiral dues can be calculated accordingly, arrears, if thereon be granted to the petitioner with interest @18% p.a.;

v. Any other relief flowing from the facts and circumstances of the case may please be awarded along with the costs of the proceedings to meet the larger interest of justice.

3. Brief facts leading to filing of this case are that the petitioner was directly recruited and posted as Assistant Engineer (Civil) on a Class II Gazetted post on 18.9.1979. Thereafter, he had been performing his duties to the utmost satisfaction of all concerned till his superannuation i.e. 31.12.2015. Before superannuation, the petitioner was promoted as Executive Engineer in April, 2015. Thereafter, a query was raised to the effect that whether the petitioner would be entitled for two advance increments as granted to him earlier. In response to the query, the respondent No.3 by the impugned order dated 31.12.2015 advised the respondent No.4 that the petitioner is not entitled to grant the increment in question. In view of the aforesaid, the respondent No.2 passed an order dated 6.1.2016 for deduction of Rs.4,12,803/- pertaining to the two increments given to the petitioner with interest thereon and the said amount to be deducted out of gratuity payable to the petitioner. Hence, this petition.

4. Learned counsel for the petitioner contended that the impugned order of recovery is not only detrimental to the petitioner but at the same time there is also deduction in the amount of salary and consequent deduction in the amount of pension. Learned counsel for the petitioner further submitted that there is no misrepresentation on the part of the petitioner and, therefore, the order of recovery from his retiral dues is not sustainable in the light of decision of the apex Court in the case of State of Punjab and others v. Rafiq Masih (White Washer) etc ((2015) 4 SCC 334). It is submitted that no undertaking whatsoever with regard to recovery towards wrong fixation was given by the petitioner at any point of time. It is further submitted that respondents have not paid a single penny towards his retiral dues i.e. pension, gratuity, leave encashment etc. and withheld the entire amount due on retirement only towards recovery of Rs.4,12,803/-. As such, the impugned order of recovery is liable to be quashed and the respondents may further be directed to release the entire retiral dues with interest on its delayed payment.

5. On the other hand, learned counsel for the respondents opposed the prayer and submitted that the undertaking was given by the petitioner at the time of retirement and in view of the undertaking, the matter is pending before the Larger Bench. Hence, the respondents have rightly withdrawn the two advance increments granted to the petitioner. To buttress his submissions, learned counsel for the respondents has placed reliance on decision of the apex Court in the case of Chandi Prasad Uniyal and others v. State of Uttarakhand and others ((2012) 8 SCC 417), wherein it is held that payment made due to irregular/wrong pay fixation due to mistake