JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for parties.
2. This petition have been filed with the prayer for quashing of impugned order dated 15.12.1995 (Annexure-6 to the writ petition) by which respondents have re-fixed and reduced the petitioner's pay without any basis.
3. Brief facts of the case are that the petitioner was a Junior Engineer in Public Work Department, Uttar Pradesh. He Joined in the year 1961 and retired from service on attaining the age of superannuation on 30.4.1995 after rendering more than 34 years of service. The claim of the petitioner is based on an order dated 7.1.1992 by which 142 employees along with the petitioner were given scale of Rs. 690-1,420. On the basis of aforesaid order, the Executive Engineer, National Highway-II, Public Work Department, Allahabad, the respondent No. 2 passed order dated 6.2.1992 fixing petitioner's scale as aforesaid.
4. The contention of the petitioner is that in the order dated 6.2.1992, he was given benefit of order dated 7.1.1992 but the second procedure for calculation of the pay was not adopted which the petitioner had opted earlier. He submits that his request fell on deaf ear and he has been discriminated as , benefit of second option has been given to other employees on the same footing but not to the petitioner. He further submits that aggrieved by the order he filed Writ Petition No. 26285 of 1995 which was disposed of vide order dated 22.9.1995 directing the respondents to clear all the post retirement benefits to the petitioner within a period of two weeks, but inspite of the order the respondents did not pay post retiral benefits to him and he had again filed contempt petition before this Court being Contempt Petition No. 1804 of 1995 in which notices were issued to the respondents.
5. Counsel for the petitioner submits that the respondents have taken ill to the filing of the writ petition before this Court and they have passed the impugned order dated 15.12.1995 illegally refixing and reducing petitioner's pay without any basis. He also submits that the aforesaid impugned order dated 15.12.1995 passed with mala fide intentions is illegal, arbitrary and without jurisdiction. He further submits that the said order has been passed without giving opportunity of hearing to the petitioner.
6. The learned standing counsel has submitted that the petitioner joined the post of overseer on 5.10.1961 in the department and during his service period one permanent increment was stopped vide order dated 28.4.1972 and another permanent increment was also stopped vide order dated 22.6.1973 because of unsatisfactory working of the petitioner in the pay scale of Rs. 300-500. These stoppage of increments is also recorded in the service book of the petitioner. He further submits that the petitioner remained on strike from 10.1.1974 to 5.4.1974 which was treated as interruption in service and therefore, date of increment was shifted vide Government order dated 9.1.1974. He further submits that the petitioner was always in the habit of getting wrong sanction by collusion/connivance of lower staff. He has drawn attention of the Court to the letter dated 2.3.1988 and 16.8.1984 (Annexure-C.A. 3 and C.A. 4 to the counter-affidavit) in this regard.
7. Lastly he submits that the petitioner opted for first procedure for fixation in new pay scale of Rs. 515-860, which cannot be changed once opted and pay fixation has been done pursuant to option extended to him vide order dated 3.4.1982 (Annexure-51. He also submits that the petitioner was paid all the post retiral benefits excluding the amount under G.I.S. and 10% remaining G.P.F. amount in his account which are also being considered to be paid by the competent authorities.
8. In so far as question of reduction is concerned, the learned standing counsel relies upon paras 7, 15, 17 and 19 of the counter-affidavit in which it has been averred that the order dated 7.1.1992 was got issued by the petitioner through connivance of lower staff and pay was wrongly fixed. The pay fixation made vide letter dated 6.2.1992 was reviewed by the Financial Controller and by letter dated 12.4.1996 and approval was granted for giving pay scale of Rs. 690-1,420 to the petitioner. It was found that Rs. 208.10 was the correct additional D.A. on the pay fixed on the basis of his option dated 3.4,1982. The petitioner's pay was being drawn upto January, 1992. which includes additional D.A. of Rs. 208.10. On the basis of service book pay fixation was made on 4.1.1991.
9. In so far as T.A. bills is concerned it is submitted that same was received in the office on 17.10.1995 but date of Journey was not mentioned in the T.A. bills and it was stated by the petitioner that he had not gone to his native place till the date of submission of T.A. bills as such it was not possible to mention date of journey. The submission of the standing counsel has force that without performance of journey, the T.A. bill could not be passed. The petitioner was also advised accordingly in this regard vide letter dated 4.11.1995.
10. In so far as security amount is concerned it is not recorded in the security register of the division and as such the question of payment with interest does not arise.
11. The learned counsel for the petitioner has placed reliance on the case of Saheeb Ram v. Stale of Haryana and Ors., SCC (Suppl) (1) 18, in which it was held that even if any excess payment with regard to the salary has been made, the same cannot be recovered or deducted from post retirement benefits unless same has been obtained by way of fraud or mis-representation. He also relied upon Vindeshwari Sahai Srivastava v. Chief Engineer, 1996 (2) AWC 947, in which same view has also been taken.
12. Learned counsel for the petitioner submits that there is no allegation against the petitioner in the impugned order nor in the counter-affidavit with regard to any fraud or mis-representation on the part of the petitioner to get pay re-fixed and as such same cannot be recovered or deducted from post retirement benefits without giving him an opportunity of being heard.
13. I have perused the impugned order as well as counter-affidavit and heard submission of learned counsel for the petitioner and the learned standing counsel, it is clear from the averments made in the counter-affidavit and the annexures appended thereto that the petitioner was given wrong pay scale and it has been done with the collusion and connivance of lower staff. The order of re-fixation were reviewed by the competent authority and as such the petitioner is not entitled to any further payment, on the contrary he has been paid excess salary for four years due to wrong fixation got done by him. Thus, case law relied upon by the petitioner is not applicable to the facts and circumstances of this case as there is clear averments of connivance and wrong fixation of pay which can be apparent from annexures appended to the counter-affidavit.
14. For the above reasons, it cannot be said that the deduction made by the impugned order are illegal or suffers from any infirmity. The writ petition fails and is dismissed. No order as to costs.