State of U.P. and Others vs Ramesh Chandra

We have heard learned Standing Counsel for the State appellant. Shri Rahul Jain appears for the petitioner-respondent.

The Special Appeal has been preferred with a delay of 316 days. In the affidavit of Shri Vinod Kumar, Assistant Engineer, Construction Division-II (P.P.), Public Works Department, U.P. Agra, filed in support of delay condonation application, the substantial part of the delay has been explained to have been spent in obtaining permission of the State Government for filing the Special Appeal. The request for permission was granted on 24.20.2005. The delay has been sufficiently explained, and is condoned. The delay condonation application is allowed and the appeal was heard.

The State respondents are aggrieved by the judgment of learned Single Judge dated 7.12.2004 allowing the Writ Petition No. 22959 of 2003, and setting aside the orders dated 11.9.2002 and 31.1.2003, by which a recovery of Rs. 98, 125/- was directed to be made from the gratuity and commutation amount of the petitioner. Learned Single Judge found that the petitioner retired as Junior Engineer in Public Works Department on 31.10.1997. At the time of retirement, he was drawing salary of Rs. 11, 300/-. The State Government fixed the pension on the average of last month of salary drawn, multiplied by number of years of service (subject to maximum 33 years) divided by 66. The amount of pension was worked out at Rs. 5650/-. The petitioner was given the calculated amount as provisional pension upto 31.1.2003. On 27.7.1998 the respondent No. 2 pointed out certain irregularities in the fixation of pension and directed the petitioner''s pay scale to be re-fixed in accordance with the Government Order dated 20.11.1981.

The Finance Controller in the State Government was of the opinion, that the petitioner had opted for option No. 1, in the option form while opting for pension under the notification dated 20.11.1981 for the new selection grade. The department had wrongly allowed the fixation of pay treating that the petitioner had exercised option No. 2. According to the department the petitioner had scored out option No. 1, and thus he was entitled to fixation of pay and terminal benefits of option No. 2.

The petitioner submitted a representation, supported by the letter of the Executive Engineer that the petitioner had in fact opted for option No. 1 by making a tick mark. The copy of his option form ticking option No. 1, was available in his office.

Learned Single Judge has not recorded any specific findings as to whether the petitioner has opted for option No. 1 or option No. 2. He has proceeded on the basis that even if the salary has been wrongly fixed and paid, it cannot be recovered from the employee unless and until it is established that the said benefit has been given on the basis of some misrepresentation or fraud played by him with the department. In the counter affidavit the State did not take any plea of misrepresentation or fraud. The only reason given by the State in the counter affidavit, is that the petitioner''s pay and pension was erroneously fixed. He had in fact exercised option No. 2, whereas his pay and pension was fixed by giving him benefit of option No. 1.

We do not find any error of law in the opinion expressed by learned Single Judge. Apart from the fact, that there was no plea of misrepresentation or fraud, it is submitted by the petitioner, we find that the manner, in which the option was to be indicated, was not given in the option form. The petitioner had ticked option No. 1. The stand taken by him was supported by the Executive Engineer from the copy of the option form available in his office. The Finance Controller, therefore, acted arbitrarily in changing the option of the petitioner and to direct any recovery from his pay.

The Special Appeal is dismissed.