Research › Search › Judgment

Patna High Court · body

2003 DIGILAW 157 (PAT)

Shakuntala Devi v. State Of Bihar

2003-02-07

RADHA MOHAN PRASAD

body2003
Judgment 1. In this writ petition, petitioners, who are widow and sons of late Ram Jatan Choudhary, died in harness on 28.1.2002 while posted as Selection Grade Accountant In the office of the Executive Engineer, R.E.O. Works Division, Biharsharif, are aggrieved on account of non-release of death-cum-retirai dues. 2. After filing of this writ petition, death- cumvretiral dues have been released except Rs. 1,000/- of D.C.R.G., which is to be released after issuance of the authority by the Accountant General and a recovery of Rs. 1,53,192/- has been sought to be made on account of alleged excess payment made to the deceased because of his erroneous promotion granted in Junior Selection Grade without passing of Accounts examination in violation of Boards Miscellaneous Rules and further in senior selection grade taking into account the normal benefit of fixation as the promotion was allowed within three years. 3. Learned counsel for the petitioner has submitted that the said recovery is not permissible in view of the law settled by the Apex Court in the case of Sahib Ram V/s. State of Haryana, reported in 1995 Supp (1) S.C.C. 18, as it is not the case of the Respondents that the said promotions were granted on commission of fraud or mis-representation by the deceased Government servant. Learned counsel has submitted that in any view of the matter alter the death of the Government servant all the more recovery cannot be made on such ground. 4. Learned Standing Counsel No, VII ppearing for the State and its official Respondents, on the other hand, has submitted that in view of the clear stipulation the order of promotion (Annexure-1) self that in case any objection is raised by the Finance Department recovery of the alleged excess amount shall be made from his salary, the petitioner cannot now raise objection as the said recovery has been made on the basis of the audit objection raised by the Accountant General that the said promotions were erroneous, as the deceased Government servant had not passed the Accounts examination. 5. I find it difficult to accept the said contention of the learned Standing Counsel No. VII. No doubt, as per the condition contained in. the order of promotion (Annexure-1) the Finance Department was competent to raise objection and pursuant thereto recovery could have been made from the salary of the deceased Government servant. 5. I find it difficult to accept the said contention of the learned Standing Counsel No. VII. No doubt, as per the condition contained in. the order of promotion (Annexure-1) the Finance Department was competent to raise objection and pursuant thereto recovery could have been made from the salary of the deceased Government servant. However, in the present case, the deceased Government servant was given promotion vide order dated 11th December, 1989 (Annexure-1) and he after availing the same ultimately died in harness on 28.1.2002 i.e. after 12 long years. Meanwhile, no objection was ever raised by the Finance Department and as stated above the Government servant died while availing the said promotion. Now, in my opinion it will be highly inequitable to make recovery from the death-cum-retirai dues payable to the widow and other dependents of the deceased Government servant on such audit objection against which the deceased Government servant did not get any opportunity to meet the same. 6. It will be too much to expect from the widow to meet the said objection and assert as to whether the requirement for passing the Accounts examination was mandatory and as to whether the deceased Government servant in fact had passed the Accounts examination or not. Learned Standing Counsel has failed to show that the deceased Government servant had not passed the Accounts examination and, in fact, it is difficult to prove that the deceased Government servant had not passed the Accounts examination. In the case of Kapildeo Thakur V/s. State of Bihar, reported in 1998 (1) PLJR 326, a Bench of the learned Single Judge has disapproved the order of cancellation of similar promotion and recovery on that basis without giving opportunity to the person affected. In the instant case in the facts and circumstances already noticed above, the question of giving opportunity would not meet the requirement of procedural fairness in Government administration and it would be mere empty formality as it is not possible for the widow or his dependent to meet the above objections at this stage. 7. Accordingly, this writ petition is allowed. The Executive Engineer, Rural Engineering Organisation, Biharsharif (Respondent no. 2) is directed to issue necessary sanction order for the remaining amount including Rs. 1,000/- towards D.C.R.G. and make payment of the due amount/forward the same to the Accountant General for further issuance of authority within three days. 7. Accordingly, this writ petition is allowed. The Executive Engineer, Rural Engineering Organisation, Biharsharif (Respondent no. 2) is directed to issue necessary sanction order for the remaining amount including Rs. 1,000/- towards D.C.R.G. and make payment of the due amount/forward the same to the Accountant General for further issuance of authority within three days. The Accountant Gen eral shall issue authority for the remaining amount, if any, within three days of the receipt of the sanction order. 8. As prayed, let a copy of this order be supplied to Mr. Azfar Hasan, learned Standing Counsel No. VII for its compliance.